Case Number: 18STCV08071 Hearing Date: April 22, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S DEMURRER TO THE COMPLAINT

I. INTRODUCTION

On December 12, 2018, Plaintiff Mona Kattar (“Plaintiff”) filed this action against Defendant Elie Kattar for negligence and premises liability relating to a trip and fall at Defendant’s residence. Defendant demurs to the complaint on grounds it fails to state facts sufficient to constitute 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).) However, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

III. DISCUSSION

The Complaint alleges a cause of action for general negligence and premises liability arising out of a trip and fall due to a dangerous condition located at Defendant’s primary residence located at 121 W. State Street, Pasadena CA 91105. (Complaint, ¶ Prem.L-1.)

Meet and Confer Requirement

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).) The party filing the demurrer must include a supporting memorandum of points and authorities. (Cal. Rules of Court, rule 3.1113(a).) On March 6, 2019, defense counsel attempted to reach Plaintiff’s counsel and left a voicemail requesting a return call to discuss the basis for this demurrer. Defense counsel never received a return telephone call. (Declaration of J. Pat Ferraris, ¶ 2.) Defense counsel also sent an email to Plaintiff’s counsel, but again received no response. (Ferraris Decl., ¶ 3.)

General Negligence and Premises Liability

Defendant contends the conclusory language state no facts which would allow Defendant to adequately defend against all causes of action asserted. Defendant argues the allegations lack specificity with regards to what the “dangerous condition” was and there are no allegations as to causation.

Plaintiff filed no opposition to this demurrer. The Court finds Plaintiff’s complaint fails to state facts sufficient to state causes of faction for general negligence and premises liability. Plaintiff must state facts supporting each element of her causes of action, which are duty, breach, causation, and damages. Further, Plaintiff did not allege the date on which this incident took place. “[T]he failure to allege a date, which appears to be material, such as the date of an accident, known to plaintiff, and which it may be assumed plaintiff’s knowledge is superior to that of defendant, is subject to special demurrer.” (Corum v. Hartford Acc & Indem. Co. (1945) 67 Cal.App.2d 891, 894.) The date of the injury is material and the failure to allege the date of injury makes the complaint uncertain.

IV. CONCLUSION

The demurrer is SUSTAINED with twenty (20) days’ leave to amend.

Moving party to give notice.