Judge: Thomas S. Mcconville, Case: 2023-01319446, Date: 2023-07-31 Tentative Ruling

Defendant OCRG LLC dba Irene School of Rhythmic Gymnastics’ demurrer to the Complaint is SUSTAINED, with leave to amend, as to the 1^st cause of action for premises liability and 3^rd cause of action for parental liability, on grounds of failure to state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)  The demurrer to the 4^th cause of action for gross negligence is OVERRULED.

Meet and confer was sufficient.

Defendant’s counsel emailed plaintiff’s counsel at the address listed on the caption of the pleading, inviting a meet and confer of the proposed demurrer.  Defendant’s counsel received no response.  This is sufficient under these circumstances.

1^st cause of action: premises liability.

This cause of action alleges the same failure to adequately supervise the class which is a basis of the 2^nd cause of action for negligence.  (Compare Complaint, Page 4, Para. “Prem. L-1,” with Page 5, Para. “GN-1.”)  Duplicative causes of action are subject to demurrer.  (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135; Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1504.)

3^rd cause of action: parental liability.

This cause of action fails to state sufficient facts.  (CACI 428 [elements].)  There are no allegations that another minor caused or contributed to plaintiff’s injury; nor any allegations that defendant observed a minor’s dangerous behavior that led to plaintiff’s injury, or was aware of a minor’s habits or tendencies that created an unreasonable risk of harm to other persons.  (Id.)  Further, there are no allegations that moving defendant was the parent or custodian of another child who injured plaintiff.  While “[t]he ability to control the child, rather than the relationship as such, is the basis for a finding of liability on the part of a parent,” (Megeff v. Doland (1981) 123 Cal.App.3d 251, 261), to the extent this cause of action is based on defendant’s alleged failure to supervise the students’ conduct, it is likewise duplicative of the 2^nd cause of action for general negligence.

4^th cause of action: gross negligence. 

This cause of action states sufficient facts.  (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 [in addition to the traditional elements of negligence, the “conduct alleged must rise to the level of ’either a want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct’”]; Complaint, Page 7 [alleging defendants “had a duty to supervise and/or provide supervision for students during the entirety of the duration of the class,” but left the class entirely unsupervised for some period of time, “which was an extreme departure from the ordinary standard of care in the same or similar situations”].)

Plaintiff shall have 15 days leave to file an amended complaint.

Moving party shall give notice.