Judge Teresa A. Beaudet, Case 21STCV01265 2023-01-11 Tentative Ruling

michele s. jones, Plaintiff, vs. city of los angeles, et al. Defendants.	Case No.:	21STCV01265
	Hearing Date:	January 11, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEFENDANT GLAZA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT; DEFENDANT GLAZA’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT

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. The original Complaint alleged causes of action for (1) negligence, (2) premises liability, (3) negligence per se, (4) violation of Government Code § 835, (5) negligent hiring and retention, and (6) battery.

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

On April 5, 2022, Plaintiff filed 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.” On July 27, 2022, the Court issued an Order sustaining GLAZA and Jacobson’s demurrer to the FAC in its entirety.

On August 16, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against the City; Adrianna Matthews; Margherita Matthews; GLAZA; Service America Corporation; SSA Group, LLC; and SSA Group, Inc. The SAC asserts causes of action for (1) motor vehicle, (2) general negligence, (3) premises liability, and (4) products liability.

GLAZA now demurs to each of the causes of action of the SAC, and moves to strike portions of the SAC. Plaintiff opposes.

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.)

First Cause of Action for Motor Vehicle and Fourth Cause of Action for Products Liability

Plaintiff’s first cause of action alleged in the SAC is for motor vehicle. Plaintiff’s fourth cause of action alleged in the SAC is for products liability. As GLAZA notes, these causes of action were not alleged in the FAC or the original Complaint.

As an initial matter, GLAZA asserts that Plaintiff is barred from pleading new causes of action after the Court sustained GLAZA’s demurrer to the FAC. “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [internal citation omitted]; see also People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785, “where the pleader, under section 473, seeks leave to amend in the form of adding new parties and the trial court grants him leave to amend, naturally such a broad grant to amend includes permission to add new parties…This situation is, however, different from the situation where the trial court sustains a demurrer to a pleading but grants leave to amend. In such a situation the granting of leave to amend is not a sanctioning of a particular amendment which the pleader has submitted to the trial court. Rather, as pointed out in Taliaferro, such granting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.”)

The Court’s July 27, 2022 Order on GLAZA and Jacobson’s demurrer to the FAC provides, inter alia, that “[f]or 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.” (July 27, 2022 Order at pp. 5:22-6:4.) As GLAZA notes, the Court’s July 27, 2022 Order did not grant Plaintiff leave to plead new causes of action.

Based on the foregoing, the Court sustains GLAZA’s demurrer to the first cause of action for motor vehicle and the fourth cause of action for products liability, without leave to amend.

“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 second cause of action, Plaintiff alleges that on or about January 19, 2019, she was “walking near a bus being operated by an ostensible Zoo representative, when she was struck physically by Defendant Adrianna Matthews when Defendant Adrianna Matthew jumped off the commercial vehicle operated by Defendants. Plaintiff was a paying patron of the bus within the Zoo and was not protected from the vehicles/instrumentalities of the vehicle, including Defendants failure to warn or reasonably protect Plaintiff.” (SAC, p. 7.) 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.” (SAC, p. 7.)

GLAZA asserts that Plaintiff again does not state what duty was owed by GLAZA, how that duty was breached by GLAZA, or how that breach of duty by GLAZA caused Plaintiff’s injuries. As GLAZA notes, Plaintiff does not allege specific facts demonstrating what alleged duty GLAZA had with regard to an alleged attack on the property of the Los Angeles Zoo.

Plaintiff counters that “Plaintiff did not merely state she was injured, she indicated in detail what transpired and how this Defendant was responsible and the reasons for liability of this Defendant.” (Opp’n at p. 4:26-28.) But Plaintiff does not point to any specific factual allegations in the SAC demonstrating why GLAZA had a legal duty to use due care, how it breached any such legal duty, and how such breach was a proximate cause of Plaintiff’s alleged injuries. Rather, the SAC includes the conclusory allegation that “Defendants were under a mandatory duty and failed to protect Plaintiff.” (SAC, p. 7)

The Court notes that on July 27, 2022, it sustained GLAZA’s demurrer to the general negligence cause of action in the FAC, and Plaintiff has again failed to state facts sufficient to constitute a cause of action for general negligence in the SAC. In addition, Plaintiff has not demonstrated any way that she could amend this cause of action to alleviate the problems discussed above. Accordingly, the Court finds that it is appropriate to sustain the instant demurrer to the second cause of action without leave to amend.

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 third cause of action for premises liability, Plaintiff again alleges that on or about January 19, 2019, she was “walking near a bus being operated by an ostensible Zoo representative, when she was physically struck by Defendant Adrianna Matthews [sic] jumped off the commercial vehicle. Plaintiff was a paying patron of the bus within the Zoo and was not protected from the vehicles/instrumentalities of the vehicles, including Defendants failed to warn or reasonably protect Plaintiff. 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. Defendants negligently, carelessly, knowingly, and recklessly hired, supervised, trained the employees as to cause Plaintiff to suffer from physical injuries as alleged herein. Defendants were under a mandatory duty and failed to protect Plaintiff.” (SAC, p. 9.)

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

Count two of the premises liability cause of action is for willful failure to warn (Civ. Code, § 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 notes that Plaintiff does not allege specific facts in the SAC demonstrating a willful failure to warn on the part of GLAZA. In her opposition, Plaintiff does not address Count Two of the premises liability cause of action (Willful Failure to Warn).

Count three of the premises liability cause of action is for dangerous condition of public property. Government 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.” Count three of the premises liability cause of action indicates that the defendants who allegedly owned public property on which a dangerous condition existed were the City. GLAZA is not listed.

The Court sustained GLAZA’s demurrer as to the premises liability cause of action in the FAC (as set forth in the Court’s July 27, 2022 Order), and Plaintiff has again failed to state facts sufficient to constitute a cause of action for premises liability in the SAC. In addition, Plaintiff has not demonstrated any way that she could amend this cause of action to alleviate the problems discussed above. Accordingly, the Court finds that it is appropriate to sustain the instant demurrer to the third cause of action without leave to amend.

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., § 436.)

GLAZA moves to strike portions of the SAC. Because GLAZA’s demurrer to each of the causes of action of the SAC is sustained, the Court denies GLAZA’s motion to strike as moot.

For the foregoing reasons, the Court sustains GLAZA’s demurrer in its entirety, without leave to amend. The Court denies the motion to strike as moot.

The Court orders GLAZA 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.”].)

Superior Court of California

County of Los Angeles

Department 50