Judge: Serena R. Murillo, Case: 2STCV23553, Date: 2022-12-05 Tentative Ruling

Case Number: 2STCV23553    Hearing Date: December 5, 2022    Dept: 29

TENTATIVE 

Defendant Ernest Rabotte’s demurrer to the complaint is SUSTAINED with 30 days leave to amend.

Legal Standard 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) 

A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).) 

Meet and Confer 

The demurrer and motion to strike are accompanied by the declaration of Henry Haddad which satisfies the meet and confer requirements. (Code of Civil Procedure section 430.41(a).)

Discussion

Defendant demurs to the complaint, arguing that the complaint is devoid of any causes of action or any factual allegations. Defendant argues that Plaintiff has attached documents that were included in hearings in family law between herself and Defendant, who was her former spouse. Defendant argues it appears that Plaintiff wants to appear her family law matters but is erroneously pursuing an appeal by filing this lawsuit.

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)  In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.) 

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed.  He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.”  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998 (citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Civil Code § 1714(a)).)  In order to impose liability on a property owner for a dangerous condition, the owner must have either actual or constructive knowledge of the dangerous condition or have been able to discover the condition by the exercise of ordinary care.  (Ortega, supra, 26 Cal.4th at 1206.) 

On her form complaint, Plaintiff has checked off boxes and indicating that she is alleging causes of action for general negligence, premises liability, and intentional tort. However, the complaint has no factual allegations whatsoever. Thus, the complaint fails to state a cause of action, is uncertain, and subject to demurrer.

Conclusion

Accordingly, Defendant’s demurrer is SUSTAINED with 30 days leave to amend.

Moving party is ordered to give notice.