Judge: Steven A. Ellis, Case: 23STCV30214, Date: 2024-12-26 Tentative Ruling

Case Number: 23STCV30214    Hearing Date: December 26, 2024    Dept: 29

Insurance Company of the West v. Bistagne Brother’s Body Shop
23STCV30214
Defendant’s Demurrer

Tentative

The demurrer is overruled in part and sustained in part with leave to amend.

Background

On December 11, 2023, Insurance Company of the West (“Plaintiff”) filed a complaint against Bistagne Brother’s Body Shop and Does 1 through 50. 

On December 21, 2023, Plaintiff filed a First Amended Complaint (“FAC”) against Thomas P. Otis (“Otis”); Bistagne Brother’s Body Shop, Inc. (“Bistagne”); and Does 1 through 50.  In the FAC, Plaintiff alleges (among other things) that it was the workers’ compensation carrier for the Petersen Automotive Museum, the employer of Marquise Lewis (“Lewis”); that on December 11, 2021, Otis shot Lewis while he was working as a security guard at the museum; that Plaintiff paid workers’ compensation benefits to Lewis; that Otis (among others) was acting within the scope of his employment at the time of the shooting; and that both Otis and Bistagne are responsible for the injury to Lewis. (FAC, ¶¶ 2, 4, 8, 9, 11.)  Plaintiff asserts causes of action in the FAC for negligence and premises liability.

On November 22, 2024, Bistagne filed this demurrer. Plaintiff filed an opposition on December 11, and Bistagne filed a reply on December 18.

Legal Standard

Code of Civil Procedure section 430.10 provides:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.”

A general demurrer under Code of Civil Procedure section 430.10, subdivision (e), tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see also 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial [2024], ¶ 7:40.)

“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  We also consider matters which may be judicially noticed.”  (Centinela Freeman Emergency Medical Associates v. Health Net of California (2016) 1 Cal.5th 994, 1010; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; accord Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924; Marina Pacific Hotel and Suites v. Fireman’s Fund Insurance Company (2022) 81 Cal.App.5th 96, 104.)  All reasonable inferences must be drawn in favor of the pleading.  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Marina Pacific Hotel and Suites, supra, 81 Cal.App.5th at p. 104.)  Even “improbable” facts alleged in the pleading must be accepted as true.  (Marina Pacific Hotel and Suites, supra, 81 Cal.App.5th at pp. 104-105.)

Courts must “liberally construe the pleading” and “give the complaint a reasonable interpretation, reading it as a whole and its parts in context.”  (Id. at p. 105.)

A complaint must contain a “statement of facts constituting the cause of action, in ordinary and concise language.”  (Code Civ. Proc., § 425.10, subd. (a)(1); see also C.A. v. William S. Hart High School Dist. (2012) 53 Cal.4th 861, 872 [“the complaint need only allege facts sufficient to state a cause of action”].)  Ordinarily, a complaint “is sufficient if it alleges ultimate rather than evidentiary facts.”  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  Ultimate facts are those upon which “the right to recover depends” and are “essential” to the cause of action.  (Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636, 643 fn. 2; see also 1 Weil & Brown, supra, ¶ 6:124.)

A plaintiff is required to plead only “the essential facts of [its] case” that are sufficient “to acquaint a defendant with the nature, source and extent of [the] cause of action.”  (Doe, supra, 42 Cal.4th at p. 550.)  Mere boilerplate or pleading of legal conclusions is not sufficient.  (Id. at p. 551 fn. 5.)  But a plaintiff need not allege “each evidentiary fact that might eventually form part of plaintiff’s proof” at trial.  (C.A., supra, 53 Cal.4th at p. 872.)

A demurrer can be sustained only when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Leave to amend should be granted when “there is a reasonable possibility that the defect can be cured by amendment.”  (Centinela Freeman, supra, 1 Cal.5th at p. 1010; Blank, supra, 39 Cal.3d at p. 318; Shaeffer v. Califia Farms (2020) 44 Cal.App.5th 1125, 1145.)

Meet and Confer Requirement

Before filing a demurrer, the parties must meet and confer.  (Code Civ. Proc., § 430.41, subd. (a).)  That requirement is satisfied here.  (Attal Decl., ¶ 2.)

 Discussion

In the FAC, Plaintiff asserts causes of action for negligence and premises liability.  The basic elements of a cause of action for negligence and for premises liability are the same: (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

Defendant demurs to both causes of action.  The Court considers each in turn.

Negligence

The Court has reviewed the allegations in the FAC and concludes that the Plaintiff has sufficiently pleaded a cause of action for negligence.  Plaintiff alleges that Defendant Otis committed a tort, that Plaintiff was injured as a result, and that Defendant Otis committed the tort while acting within the course and scope of his employment with Defendant Bistagne.  (FAC, ¶¶ 4, 8, 11.)

The FAC contains a sufficient pleading of the ultimate facts, which of course the Court must accept as true on demurrer. 

The Court understands that Defendant Bistagne may well contest Plaintiff’s allegations.  Bistagne may contend, for example, that the tort occurred as a result of a personal dispute between Lewis and Otis; that Otis was not an employee of Bistagne; or that Otis was not acting within the course and scope of the employment relationship when he committed the tort.  None of that, however, can properly adjudicated on demurrer.

Bistagne argues that the pleading of course and scope in the FAC is impermissible boilerplate, citing Moore v. Regents of University of California (1990) 51 Cal.3d 120, 134 fn. 12.  But this case, unlike Moore, involves a simple tort: Otis either was or was not acting within the scope of his employment at the time that Otis (allegedly) committed the tort, and that can be resolved only on the facts, not on the pleadings.  In Moore, in contrast, plaintiff alleged that cells from his body had been used for potentially lucrative medical research without his permission, and the boilerplate allegations that every defendant acted within the course and scope of an employment or agency relationship with every other defendant was deemed to be insufficient.

In the alternative, Bistagne demurs on the ground of uncertainty.  Demurrers for uncertainty are “disfavored” and will be sustained “only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (A.J. Fistes Corp. v. GDL Best Contractors (2019) 38 Cal.App.5th 677, 695.)  A complaint need not be “a model of clarity” and must only contain sufficient allegations to put the defendants on notice of the claims against them.  (Id.)  As the Court of Appeal has observed, “where a complaint is in some respects uncertain, … ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; see also 1 Weil & Brown, supra, ¶¶7:85-7:86.)

Here, the FAC is not incomprehensible; Bistagne can reasonably respond.  That is particularly true given that Bistagne presumably has access to the critical facts, including whether Bistagne ever employed Otis, when the employment relationship (if any) began and ended, and what was the nature and scope of the employment relationship (if any). 

Bistagne’s demurrer to the First Cause of Action in the FAC (for negligence) is overruled.

Premises Liability

As noted above, the basis elements of a cause of action for premises liability are the same as for negligence.  But that does not mean that the causes of action are identical or duplicative.  In a negligence cause of action, the relevant duty is (in general) the duty under Civil Code section 1714 of every person “to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.)  In a premises liability cause of action, however, the duty is more specific: it is the duty, for those who own, possess, or control property, to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1159-1163, 1170-1171; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Here, the FAC is silent as to what relationship (if any) Defendant Bistagne had to the premises on which Lewis was injured.  If the tort occurred on property that Bistagne owned, operated, or controlled, then there could be a potential for a premises liability cause of action.  But if Bistagne did not own, operate, or control the property, then there does not appear to be a basis for Plaintiff’s premises liability cause of action.

One of the ultimate facts that must be alleged in a premises liability cause of action is the element of ownership, operation, or control.  Plaintiff has not alleged this ultimate fact.  Indeed, Plaintiff does not allege in the FAC any relationship of any kind between Bistagne and the premises on which the tort occurred. 

Accordingly, Bistagne’s demurrer to the Second Cause of Action (for premises liability) is sustained.

As this is the first time that the pleading has been challenged, and as the pleading defect is one that may reasonably be cured by greater specificity as to the relationship between Defendant Bistagne and the premises, leave to amend is granted.

Conclusion

The Court OVERRULES in part and SUSTAINS in part Defendant’s demurer to the First Amended Complaint.

The Court OVERRULES the demurrer to the First Cause of Action.

The Court SUSTAINS the demurrer to the Second Cause of Action.

The Court GRANTS Plaintiff LEAVE TO AMEND within 15 days of notice.

Moving Party is to give notice.