Judge Yolanda Orozco, Case 21STCV13603 2022-08-12 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV13603, Date: 2022-08-12 Tentative Ruling

Case Number: 21STCV13603 Hearing Date: August 12, 2022 Dept: 31

DEMURRER IS SUSTAINED; MOTION TO STRIKE IS MOOT

Background

On April 09, 2022, Plaintiff Carolyn Martin filed a Complaint against 7-Eleven, Inc.; Sandstone Properties, Inc.; and Does 1 to 50 for premises liability.

The operative First Amended Compliant (FAC) alleges:

1. General Negligence

2. Willful Failure to Warn

3. Dangerous Condition of Public Property

Defendant Sandstone Properties, Inc. (“Sandstone”) filed a Demurrer with Motion to Strike Plaintiff’s FAC on November 22, 2021.

Plaintiff filed Opposition papers on August 01, 2022. Defendant Sandstone filed a Reply on August 05, 2022.

The Village Square Partners LLC filed a Joiner to Sandstone’s demurrer.

Meet and Confer Requirement

Defense counsel for Sandstone Properties, Inc. assert they sent a meet and confer letter on July 9, 2021, to Plaintiff’s counsel who disagreed with the deficiencies to the cause of action, Willful Failure to Warn, raised by Defense counsel. (Michael Decl. ¶¶ 4, 5, Ex. A.) Thus, the meet and confer requirements for filing a demurrer or motion to strike have been met. (Code of Civ. Proc., § 430.41.)

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact.¿(Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) A demurrer may be sustained “only¿if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd.¿(2009) 45 Cal.4th 992, 998.)¿¿¿

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 of Civ. Proc., § 435(b)(1); Cal. Rules of Court (CRC), Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); 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”].)¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

Discussion

I. Demurrer

Plaintiff alleges that she was injured when she tripped and fell while walking in the parking lot outside the 7-Eleven due to an allegedly “uneven walkway” and that Defendants failed to warn her about the dangerous condition presented by the uneven walkway. (FAC at p. 6.)

Defendant Sandstone demurs as to the second cause of action, “Willful Failure to Warn,” asserting that Plaintiff has failed to state sufficient facts to support the cause of action.

a. Willful Failure to Warn

Under Civil Code Section 846

“an owner of . . . real property owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give recreational users warning of hazards on the property, unless: (1) the landowner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure or activity; (2) permission to enter for a recreational purpose is granted for a consideration; or (3) the landowner expressly invites rather than merely permits the user to come upon the premises.”

(Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099.)

“A landowner's conduct becomes willful or malicious only if three elements are present: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859 [internal citations omitted].) “The statute therefore creates ‘an exception to the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land.’” (Id. [citation omitted].)

In her FAC, Plaintiff alleges she was an invited guest of Defendants, all of whom “at that time and prior to it, had actual or constructive knowledge of the pothole’s existence and that injury to persons was probable, but consciously and willfully failed to act to address, remediate, or fix the condition and prevent injury to others, such as Plaintiff.” (FAC at p. 6.)

Defendant Sandstone asserts that because the incident occurred near the entrance of the 7-Eleven store, the property was a business and not a “recreational property.” Moreover, Plaintiff’s assertion that she was an invited guest of Defendants is insufficient to give Sandstone’s knowledge of whether Plaintiff was engaged in a recreational purpose under section 846 or if she was a business invitee. The facts as pled fail to inform the Defendant if it has section 846 immunity.

“[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.”(Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 [citations omitted].)

Here, the facts as pled fail to provide Sandstone with sufficient notice of facts such as to mount a defense. Furthermore, whether Plaintiff was engaging in a recreational activity pursuant to section 846 is within Plaintiff’s knowledge, not Defendant’s.

Accordingly, Defendant Sandstone’s demurrer is SUSTAINED with leave to amend.

II. Motion to Strike

Defendant Sandstone moves to strike Plaintiff’s cause of action for Willful Failure to Warn. Given that Defendant’s demurrer was SUSTAINED, the motion to strike is MOOT.

Conclusion

Defendant Sandstone Properties, Inc.’s Demurrer is SUSTAINED with 20 days leave to amend.

The Motion to Strike is MOOT.

Moving Party to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.