Judge: Stephen P. Pfahler, Case: 21STCV41513, Date: 2023-02-23 Tentative Ruling

Case Number: 21STCV41513    Hearing Date: February 23, 2023    Dept: F49

Dept. F-49

Date: 2-23-23

Case #21STCV41513

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendant, Timothy Burkhart

RESPONDING PARTY: Plaintiff, Sheila and Ari Katerelos

RELIEF REQUESTED

Demurrer to the Complaint

·         1^st Cause of Action: Negligence

·         2^nd Cause of Action: Strict Product Liability

·         3rd Cause of Action: Negligent Product Liability

·         4^th Cause of Action: Loss of Consortium

SUMMARY OF ACTION

On February 16, 2020, plaintiff Sheila and Katerelos sustained alleged injuries as a result of riding on the X2 rollercoaster.

On November 10, 2021, Plaintiff filed a complaint for Negligence, Strict Product Liability, Negligent Product Liability, and Loss of Consortium. On June 6, 2022, Plaintiff substituted in Timothy Burkhart for Doe 1.

On October 5, 2022, the action was transferred from the Personal Injury court to Department 47. The case was transferred to Department 49 upon the filing of a 170.6 in Department 49.

RULING: Sustained with Leave to Amend.

Defendant Timothy Burkhart submits the subject demurrer to the entire complaint. While the caption and introduction of the demurrer indicates a demurrer to the first amended complaint, the court electronic filing record shows no first amended complaint on file. The court therefore considers this as a demurrer to the complaint.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

Defendant presents the demurrer on grounds of insufficient facts in support. Burkhart was only substituted into the case after the filing of the complaint, and is therefore not an identified defendant. The demurrer comes after an extensive meet and confer effort with the parties unable to agree on the course for the presentation of claims against Burkhart. Defendant relies on the general allegations of the operative complaint, as well as the extrinsic identification of Burkhart as the former Vice President of Maintenance and Construction for Six Flags Entertainment Corporation.

Plaintiffs in opposition contend the complaint is sufficiently pled, including the claims against all Doe defendants subsequently added into the action. Plaintiffs alternatively request leave to amend.

Defendant in reply reiterates the lack of facts and challenges the reliance on general allegations as to the substituted “Doe” defendant.

The court finds the arguments in support of the demurrer itself relies on extrinsic inference beyond the scope of the pleading. Nevertheless, the complaint lacks specific facts regarding the conduct and responsibilities of Burkhart. The court finds the general allegations insufficient for purposes of the subject demurrer.

The court appreciates Plaintiffs’ inability to automatically file an amended pleading given the answers filed prior to the subject demurrer, and Defendant’s necessity of the subject demurrer given the inability of the parties to stipulate. (Code Civ. Proc., § 473, subd. (a).) The court therefore sustains the demurrer with 30 days leave to amend in order to allow Plaintiffs an opportunity to update the factual basis as to Burkhart.

Motion for summary judgment reserved for October 16, 2023.

Defendant Burkhart to give notice to all parties.