Judge: William A. Crowfoot, Case: 21STCV17563, Date: 2022-09-15 Tentative Ruling

Case Number: 21STCV17563    Hearing Date: September 15, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On May 10, 2021, plaintiff Karoline Montoya-Garzon filed this action against defendants Two Photos in One LLC (“Two Photos in One”), Premier Parks, LLC (“Defendant”), and Enes Basaran (“Basaran”) asserting causes of action for negligence and premises liability.  Plaintiff alleges that on May 18, 2019, while at the Santa Monica Pier, she was struck by a cart belonging to Two Photos in One.  On July 29, 2022, Two Photos in One and Basaran filed an answer.  On August 19, 2022, Defendant filed this demurrer to Plaintiff’s complaint on the grounds that the Complaint fails to state a cause of action and is uncertain. 

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

A.   Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)

          Defense counsel Eileen Gaisford attaches meet and confer correspondence sent to Plaintiff’s counsel.  (Demurrer, Gaisford Decl., Ex. B.)  The correspondence reflects that counsel spoke regarding the issues raised in this demurrer.  The meet and confer requirement is satisfied.

B.   Demurrer

To successfully plead a cause of action for negligence, a plaintiff must allege the following elements: (1) the defendant had a legal duty of care to the plaintiff; (2) the defendant breached the duty of care; (3) the defendant’s failure was the proximate or legal cause of the resulting injury; and (4) the plaintiff was damaged.  (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.  The elements of a negligence claim and a premises liability claim are the same.  (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

Defendant argues that Plaintiff fails to state a cause of action for negligence because Plaintiff fails to identify how it was negligent without specifically identifying what conduct it engaged in which caused or contributed to her injuries.  The Court agrees.  Although negligence may be pleaded generally, Plaintiff fails to state any allegations about Defendant’s involvement in the injury-producing incident occurred and how the premises it allegedly “negligently owned, occupied, maintained, inspected, supervised, operated, controlled, managed, cleaned, used, repaired, directed, and superintended” was dangerous or caused her to strike Two Photos in One’s cart and sustain injuries.  (Compl., GN-1; see also Compl., Prem.L-1.) 

Plaintiff did not oppose this motion and did not show how amendment is possible.  Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend.

IV.     CONCLUSION

Defendant’s demurrer is SUSTAINED without leave to amend. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.