Judge: William A. Crowfoot, Case: 22STCV04829, Date: 2022-10-18 Tentative Ruling

Case Number: 22STCV04829    Hearing Date: October 18, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On February 8, 2022, plaintiff Araksiya Nadjarian (“Plaintiff”) filed this action against defendants Monteverde Ranch Equestrian Center, LLC and Monte Verde Trails Ranch.  On April 15, 2022, Plaintiff amended the complaint to add Monte Verde Ranch LLC (“Defendant”) as Doe 1.  On April 19, 2022, Plaintiff dismissed Monteverde Ranch Equestrian Center, LLC. 

          Plaintiff asserts causes of action for: (1) general negligence, (2) strict liability, (3) gross negligence, and (4) negligent infliction of emotional distress (‘NIE.  Plaintiff alleges that on or before January 24, 2021, she went to property located at or near 11035 Osborne Street in Sylmar for a horseback riding tour.  (Compl., ¶¶ 8, 10.)  Plaintiff was assigned a horse that had been saddled and otherwise equipped for the tour by Defendant’s employees.  (Id., ¶ 10.)  During the tour, the horse that Plaintiff was riding began to show dominance and unusual aggressiveness.  (Id., ¶ 11.)  Defendant’s employees encouraged Plaintiff to continue riding by advising Plaintiff that the horse was fine, even though no other horse was exhibiting such behavior.  (Ibid.)  Plaintiff alleges that Defendant should have known that the horse was dangerous and should not be used as a horseback riding trail horse.  (Ibid.)  The horse threw Plaintiff off its back and Plaintiff landed onto the ground, sustaining severe and permanent injuries and damages.  (Ibid.)  Plaintiff alleges Defendant breached its duty to provide a horse with an appropriate temperament from its inventory of horses by selecting a horse which, by its nature, training, and disposition, was inappropriate, unsafe and unduly dangerous for a rider like Plaintiff.  (Id., ¶ 12.)  Plaintiff also alleges that Defendant did not provide necessary instructions and warnings to Plaintiff and did not respond to Plaintiff’s requests for help when the horse was acting aggressively.  (Id., ¶ 17.) 

          Defendant filed this demurrer and motion to strike on September 1, 2022.  Defendant argues that all four causes of action in the Complaint fail to state sufficient facts and seeks to strike numerous portions of the Complaint, including the entire paragraphs of 5, 12, 15, 20, 26, 31-33, 35, and 40-41, the prayer for punitive damages, and portions of paragraphs 11, 13, 16, 17, 23, 30, 36, and 39.  Defendant argues these portions should be stricken because Plaintiff’s complaint is insufficient to support a request for punitive damages. 

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).) 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

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 or motion to strike, the demurring or moving 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); 435.5, subd. (a).)  

          Lisa M. Tracy, counsel for Defendant, declares that she sent a meet and confer letter to Plaintiff’s counsel but the parties were unable to resolve the issues through the meet and confer process.  This declaration does not satisfy the meet and confer requirements set forth by the Code of Civil Procedure because the meet and confer process does not appear to have taken place either in person or over the telephone.  Nevertheless, the Court proceeds to analyze the demurrer and motion on their merits.  The Court cautions the parties that failure to meet and confer properly as required by Code in the future may result in the motion being taken off calendar or rescheduled. 

B.   Demurrer

1.   First Cause of Action for Negligence and Negligent Infliction of Emotional Distress

Defendant argues that Plaintiff’s claims for negligence are barred by the primary assumption of risk doctrine.  “Horseback riding is a dangerous sporting activity; ‘being thrown off a horse [i]s an inherent risk of horseback riding, [indeed] ... it is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse.’” (Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1545 [citing Guido v. Koopman (1991) 1 Cal.App.4th 837, 842, 2 Cal.Rptr.2d 437.)  In applying the principles of primary assumption of the risk to horseback riding, the Levinson court came to the following conclusions: “The rider generally assumes the risk of injury inherent in the sport. Another person does not owe a duty to protect the rider from injury by discouraging the rider's vigorous participation in the sport or by requiring that an integral part of horseback riding be abandoned. And the person has no duty to protect the rider from the careless conduct of others participating in the sport. The person owes the horseback rider only two duties: (1) to not “intentionally” injure the rider; and (2) to not ‘increase the risk of harm beyond what is inherent in [horseback riding].’”  (Ibid. [citing Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 900, 1003.)  The Levinson court cited to Harrold v. Rolling J. Ranch (1993) 19 Cal.App.4th 578.  In Harrold, the Court of Appeal held that a commercial trail operator has no duty to “provide ‘ideal’ riding horses such that they never buck, bite, break into a trot, stumble or ‘spook’ when confronted by a frightening event on the trail such as a shadow or snake or react to peculiar movements of a rider”; as such “sudden movements of a horse” are inherent in the riding of horses.  (Harrold, supra, 19 Cal.App.4th at p. 588].)  However, while a commercial trail ride operator does not owe a duty to protect riders from the risk of injury inherent in a “horse behaving as a horse”, the operator does have a duty to: (1) supply horses that are not “unduly dangerous” for such a ride and (1) “warn the patrons renting a given horse if that horse has evidenced a predisposition to behave in ways which add to the ordinary risk of horse riding.” (Harrold, supra, 19 Cal.App.4th at p. 587.) 

Defendant contends that the Complaint is too generic to allege that it unreasonably increased the risks of horseback riding.  Plaintiff alleges that the horse she was riding showed dominance and unusual aggressiveness, but that Defendant’s employees encouraged Plaintiff to continue riding even though no other horse was exhibiting such behavior.  (Compl., ¶ 11.)  Plaintiff further alleges that the horse had dangerous propensities, unusually aggressive, violent, non-domesticated, unduly dangerous, unpredictable, and volatile, and that the horse had bucked, thrown off or injured others in the past.  (Ibid.)  Plaintiff also alleges that Defendant chose a horse that, by its very nature, training and disposition, was inappropriate, unsafe and unduly dangerous for a rider such as Plaintiff.  (Compl., ¶ 12.) 

These allegations are sufficient to state a cause of action for negligence at this stage in the pleadings.

Defendant’s demurrer to the First and Fourth Causes of Action is OVERRULED.

2.   Third Cause of Action for Gross Negligence and/or Recklessness

Defendant demurs to Plaintiff’s cause of action for gross negligence on the grounds that no distinct cause of action for gross negligence exists.  Gross negligence connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results.  (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640 [quotations/citation omitted].) However, California does not recognize a distinct common law cause of action for gross negligence apart from negligence. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552 fn. 3.)  Rather, gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages.  

Accordingly, the Court does not find, and Plaintiff does not provide legal authority to support, a statutory basis to support a distinct cause of action for gross negligence in the circumstances alleged here.  The Demurrer to the Third  Cause of Action is SUSTAINED.  Leave to amend is granted so that Plaintiff may omit the gross negligence cause of action and merge those allegations into, or else clarify, her first cause of action for negligence.  

3.   Second Cause of Action for Strict Liability

A common law strict liability cause of action may be maintained if the owner of a domestic animal that bites or injures another person knew or had reason to know of the animal's vicious propensities.  (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115.)  Defendant argues that Plaintiff has not pleaded a cause of action for strict liability because Plaintiff failed to plead any instances of prior knowledge that the horse was vicious.  This is inaccurate.  Plaintiff alleges that Defendant “knew . . . that the Subject Horse had vicious and dangerous propensities in that the Subject Horse had on multiple prior occasions bucked off, threw off and/or injured people, handlers and/or customers.”  (Compl., ¶ 23.)  This is sufficient to plead scienter. 

The demurrer to Plaintiff’s second cause of action is OVERRULED.

C.   Motion to Strike

Defendant challenges Plaintiff’s prayer for punitive damages on the grounds that the supporting allegations are too conclusory.  Defendant also moves to strike the entire paragraphs of 5, 12, 15, 20, 26, 31-33, 35, and 40-41 and portions of paragraphs 11, 13, 16, 17, 23, 30, 36, and 39.

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)  An employer shall not be liable for punitive damages based on the acts of an employee, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which damages are awarded, or was personally guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (b).)  “With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”  (Ibid.) 

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.)  The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

The Court agrees that Plaintiff’s complaint fails to include sufficiently specific allegations to state a claim for punitive damages.  However, Defendant moves to strike allegations that are simply factual allegations and are not limited to punitive damages allegations.  Therefore, Defendant’s motion to strike is only GRANTED IN PART with respect to Plaintiff’s prayer for punitive damages and Paragraph 33 in its entirety, and Paragraph 36 on page 15, lines 14-17, .

IV.     CONCLUSION

Defendant’s demurrer is OVERRULED as to the First, Second, and Fourth Causes of Action.  Defendant’s demurrer is SUSTAINED as to the Third Cause of Action with 20 days’ leave to amend the Complaint to incorporate any allegations of gross negligence into Plaintiff’s First and Fourth Causes of action. 

Defendant’s motion to strike is GRANTED in part as to Plaintiff’s prayer for punitive damages and Paragraph 33 in its entirety, and Paragraph 36 on page 15, lines 14-17.

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.