Case Number: BC661864 Hearing Date: April 09, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Catherine tucker ;

Plaintiff,

v.

food 4 less , et al.;

Defendants.

Case No.: BC661864

Hearing Date: April 9, 2018

[TENTATIVE] order RE:

Demurrer to complaint

MOVING PARTY: Defendant, Rolling Frito-Lay Sales, L.P., Frito-Lay Inc., and Pepsico Inc.

RESPONDING PARTY: Plaintiff, Catherine Tucker

The court considered the moving, opposition, and reply papers.

Background

Plaintiff Catherine Tucker (“Plaintiff”) filed a complaint on June 19, 2017, alleging two causes of action for premises liability and negligence. (Compl. at pp. 4–5.) Defendants Rolling Frito-Lay Sales, L.P., Frito-Lay Inc., and Pepsico Inc (“Defendants”) filed a demurrer to the complaint on March 9, 2018. Plaintiff filed an opposition on March 27, 2018. Defendant filed a reply on April 2, 2018.

Plaintiff’s complaint arises from alleged injuries sustained while she was on Defendants’ premises. She alleges a box fell from the highest shelf and hit her. (Compl. at p. 4.) She describes the top shelf or the box as a dangerous condition and alleges Defendants breached their duty by failing to “address, alleviate, remote and/or remedy the dangerous condition on Defendants’ premises.” (Id.)

Defendants’ Demurrer

Defendants demur to the complaint under C.C.P. §§ 430.10(e)-(f) for failing to state sufficient facts and uncertainty. They argue the complaint is uncertain, vague, and ambiguous. They contend the first cause of action for premises liability is pled so confusingly they “cannot determine what Plaintiff claims is the dangerous condition.” (Demurrer at p. 7.) Defendants argue the second cause of action for general negligence is similarly flawed because it is unclear what actions gave rise to the negligence and how those actions caused Plaintiff’s injuries. (Id. at pp. 7—10.)

Plaintiff opposes and argues the demurrer is untimely, defendants did not adequately meet and confer, and the allegations are properly pled. She argues a cause of action for negligence only requires a pleading of the defendant’s negligence and the proximate cause. (Pl.’s Opp. to Def.’s Demurrer at p. 4.)

In response, Defendants argue Plaintiff cannot plead in general terms. Rather, she must plead ultimate facts to demonstrate a viable claim because the facts alleged to not naturally give rise to an inference of causation. (Defs.’ Reply at p. 4.) They describe the complaint as vague and ambiguous, leaving them unable to determine if the box or the shelf is the dangerous condition. (Id.) They argue there is no indication the forklift contributed to the box striking Plaintiff or if it was negligently operated. (Id. at p. 5.)

LEGAL STANDARD

Meet and Confer Requirement

C.C.P. Section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (C.C.P. § 430.41, subd. (a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id. at subd. (a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Id. at subd. (a).)

Demurrer

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.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) 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 pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at 747.)

“A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

DISCUSSION

Meet and Confer Requirement

Defendant attempted to meet and confer with Plaintiffs’ counsel as required under the statute. (Decl. of Lilya Dishchyan at ¶ 4.; Exh. 2) Defense counsel sent correspondence to Plaintiffs’ counsel on March 6, 2018. (Id.) Plaintiffs’ counsel responded by mail and fax on March 6, 2018, arguing the pleadings were sufficient. (Id. at Exh. 3.)

Per C.C.P. § 430.41(a), “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer…” C.C.P. § 430.41(a) (emphasis added). Counsel’s declaration regarding correspondence exchanged between the parties does not satisfy C.C.P. § 430.41(a)’s requirement that the parties meet and confer in person or by telephone.

On this occasion, the Court will proceed to address the merits of the demurrer despite the insufficiency of the meet and confer. However, for any future demurrers that may be filed in this action, the Court cautions that an insufficient meet and confer, such as what occurred prior to the instant demurrer, will result in the demurrer being placed off calendar.

Demurrer Analysis

To plead a cause of action for negligence, one must allege (1) a legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) “In order to state a cause of action for negligence, the complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.) In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.) Notably, Plaintiffs need only allege negligence in general terms. It is sufficient to allege an act was negligently done without stating the particular omission which rendered it negligent. (McBride v. Atchison, Topeka & Santa Fe Railway Co. (1955) 44 Cal.2d 113, 119.)

Premises liability is a form of negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) Plaintiff must show: that the defendant owned, leased, occupied or controlled the property; defendant was negligent in the use, maintenance or management of the property; the plaintiff was harmed; and defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See CACI No. 1000; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Plaintiff does not allege sufficient facts to plead a cause of action for general negligence and premises liability. According to the complaint, Plaintiff was on “Defendants’ premises” at 5318 S. Main Street in Los Angeles. (Compl. at p. 4.) Plaintiff alleges a box hit her when it fell from the shelf. (Id.) In pleading the dangerous condition, Plaintiff merely says the box struck her when it fell off the top shelf. (Id.) An employee was allegedly using a fork lift somewhere on the premises. (Id. at p. 5.) Those facts are the entirety of her factual allegations, and Plaintiff does not plead any further information or details.

Plaintiff’s first and second causes of action contain insufficient facts and are uncertain. Instead of alleging the acts leading up to her injuries, Plaintiff recites a laundry list of legal theories that could affect the liability of defendant. While a Plaintiff may plead ultimate facts, there must be some facts alleged. The cause of action for general negligence claimed by Plaintiff does not allege sufficient ultimate facts, but merely recite legal conclusions. It does not indicate which Defendant was involved in creating the allegedly dangerous condition or which Defendant owned or controlled the premises. Rather it merely groups all the Defendants into one as if all of them were involved in every possible action. (Compl. at pp. 4—5.) The sentences in the description of the first and second cause of action do nothing to frame the issues of the suit or inform Defendants against what it is defending. The second cause of action for general negligence is a mere recitation of general tort principles. (Id. at p. 5.) The court finds that the complaint is insufficient for failure to plead facts to support the claims alleged and is uncertain as to Defendants Rolling Frito-Lay Sales, Frito-Lay, and Pepsico.

Defendant’s demurrer is SUSTAINED with leave to amend within 20 days.

Conclusion

Defendant’s demurrer is SUSTAINED. Plaintiff to file an amended complaint within 20 days.

The moving party to give notice.

DATED: April 9, 2018 ___________________________

Elaine Lu

Judge of the Superior Court