Judge: Teresa A. Beaudet, Case: 21STCV01265, Date: 2022-07-27 Tentative Ruling

Case Number: 21STCV01265    Hearing Date: July 27, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Michele S. Jones (“Plaintiff”) filed this action on January 12, 2021 against Defendants City of Los Angeles (the “City”), Los Angeles Zoo, and Adrianna Matthews. 

Plaintiff filed the operative First Amended Complaint (“FAC”) on February 4, 2022 against the City, Los Angeles Zoo, Adrianna Matthews, as well as Margherita Matthews. The FAC asserts causes of action for (1) general negligence, (2) premises liability, and (3) intentional tort.

On April 5, 2022, Plaintiff filed two amendments to the complaint naming Greater Los Angeles Zoo Association, Inc. (“GLAZA”) in place of “Doe 1” and Thomas Jacobson (“Jacobson”) in place of “Doe 2.”

            GLAZA and Jacobson now demur to each of the causes of action of the FAC, and move to strike portions of the FAC. No opposition to the demurrer or motion to strike was filed.

Discussion

Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. ((Code Civ. Proc., § 430.10(f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.  ((Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[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.) 

Uncertainty

As an initial matter, the Court does not find that any of the causes of action are ambiguous or unintelligible. Therefore, the special demurrer on the basis of uncertainty is overruled. 

First Cause of Action for General Negligence

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” ((Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [internal quotations and emphasis omitted].)

In support of the first cause of action, Plaintiff alleges that on or about January 19, 2019, she was “lawfully at the Zoo, walking near the tram, when she was physically attacked by Defendant Adrianna Matthews. Defendants were aware of the condition, including the potential for harm and failed to warn or reasonably protect Plaintiff.” (FAC, p. 4.) Plaintiff also alleges that “Defendants negligently, carelessly and recklessly maintained and operated the common areas as to cause Plaintiff to suffer from physical injuries as alleged herein. Defendants were under a mandatory duty and failed to protect Plaintiff.” (FAC, p. 4.) 

GLAZA and Jacobson note that Plaintiff does not specifically allege what duty was owed by GLAZA and Jacobson, how that duty was breached by GLAZA and Jacobson, or how that breach of duty by GLAZA and Jacobson caused Plaintiff injuries. Other than the allegation that Adrianna Matthews attacked her, Plaintiff solely makes conclusory allegations that defendants negligently maintained and operated the common areas.

Plaintiff did not file an opposition to the demurrer and thus does not offer any response to these points. Based on the foregoing, the Court sustains the demurrer to the first cause of action for general negligence. 

Second Cause of Action for Premises Liability

Pursuant to CACI 1000, to establish a claim for premises liability, plaintiff must prove all of the following: (1) that defendant owned/leased/occupied/controlled the property; (2) that defendant was negligent in the use or maintenance of the property; (3) that plaintiff was harmed; and (4) that defendant’s negligence was a substantial factor in causing plaintiff’s harm.

In support of her second cause of action for premises liability, Plaintiff also alleges that on or about January 19, 2019, she was “lawfully at the Zoo, walking near the tram, when she was physically attacked by Defendant Adrianna Matthews. Defendants were aware of the condition, managed, controlled the property, including the potential for harm and failed to warn or reasonably protect Plaintiff.” (FAC, p. 6.) 

Count one of the premises liability cause of action is for negligence. The Court agrees with GLAZA and Jacobson that Plaintiff has not alleged sufficient facts to establish a cause of action for negligence against them, as discussed above.

Count two of the premises liability cause of action is for willful failure to warn (Civil Code section 846.) Civil Code section 846, subdivision (a) provides, “[a]n owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.” Civil Code section 846, subdivision (d)(1) provides that “[t]his section does not limit the liability which otherwise exists for any of the following: (1) Willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”

GLAZA and Jacobson note that Plaintiff alleges she was physically attacked by Adrianna Matthews while at the Zoo, but that these allegations are not supported by any facts of alleged willful or malicious conduct by GLAZA and Jacobson. Plaintiff offers no response to this point.

Count three of the premises liability cause of action is for dangerous condition of public property. Gov. Code, section 835 provides, “[e]xcept as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” As noted by GLAZA and Jacobson, Plaintiff does not allege any specific facts as to a “dangerous condition” of the property. (Demurrer at p. 5:4-7)[1] As set forth above, Plaintiff did not file any opposition to the demurrer.   

 Based on the foregoing, the Court sustains the demurrer to the second cause of action for premises liability in its entirety.

Third Cause of Action for Intentional Tort

In support of the third cause of action for intentional tort, Plaintiff repeats the allegation that on or about January 19, 2019, she “was lawfully at the Zoo, walking near the tram, when she was physically attacked by Defendant Adrianna Matthews. Defendants were aware of the condition, including the potential for harm and failed to warn or reasonably protect Plaintiff.” (FAC, p. 7.) GLAZA and Jacobson note that Plaintiff has failed to state facts to establish GLAZA and Jacobson were intentionally involved in the physical attack on Plaintiff. Plaintiff does not respond to this point. Thus, the Court sustains the demurrer to the third cause of action for intentional tort. 

Motion to Strike

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., section 436.) 

GLAZA and Jacobson move to strike portions of the FAC. Because the demurrer to each of the causes of action of the FAC is sustained, the Court denies GLAZA and Jacobson’s motion to strike as moot. 

Conclusion

For the foregoing reasons, the Court sustains GLAZA and Jacobson’s demurrer in its entirety. The Court denies the motion to strike as moot.

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days, the Court orders GLAZA and Jacobson to file and serve a proposed judgment of dismissal within 30 days of the date of this order. (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 186 (“An order sustaining a demurrer without leave to amend is not a final judgment; a judgment of dismissal follows such an order as a matter of course.”).)

GLAZA and Jacobson are ordered to give notice of this Order. 

DATED:  July 27, 2022                                  ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court