18-CIV-06752 BERTHA BENTON, ET AL. VS. BURLINGTON COAT FACTORY DIRECT CORPORATION

BERTHA BENTON BURLINGTON COAT FACTORY DIRECT CORPORATION
PRO/PER

DEFENDANT BUFLINGTON COAT FACTORY OF TEXAS’ DEMURRER TO PLAINITIFF’S FIRST AMENDED COMPLAINT TENTATIVE RULING:

The Demurrer of Defendant Burlington Coat Factory of Texas, Inc. (erroneously sued herein as Burlington Coat Factory Direct Corporation) (“Defendant”) to the First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND based on failure to state facts sufficient to support a cause of action.

The First Amended Complaint fails to allege any facts with respect to Plaintiffs Marquetta Benton and Marquel Benton.

Also, the First Amended Complaint attaches the form for one cause of action for general negligence. The elements of a negligence claim are: (1) a legal duty of care toward the plaintiff; (2) a breach of that duty; (3) legal causation; and (4) damages. (Century Sur. Co. v. Crosby Ins., Inc. (2004) 124 Cal.App.4th 116, 127.) Plaintiffs fail to allege facts sufficient to support all the elements of a negligence claim.

Plaintiff Bertha Benton also appears to allege that she was discriminated against based on her disability, but has not alleged facts sufficient to support a claim based on disability discrimination.

Accordingly, Plaintiffs are given leave to amend to allege facts sufficient to support a valid cause of action against Defendant. Plaintiffs are to file and serve a Second Amended Complaint on or before April 17, 2019.

Defendant’s Request for Judicial Notice of the First Amended Complaint is GRANTED. (See Evid. Code § 452(d).)

Plaintiffs’ Request for Judicial Notice is DENIED. (See Evid. Code §§ 451, 452.)

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, DEMURRING PARTY is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule

March 28, 2019 Law and Motion Calendar PAGE 12 Judge: HONORABLE SUSAN GREENBERG, Department 03 ________________________________________________________________________ 3.1312. The proposed order is to be submitted directly to Judge Susan L. Greenberg, Department 3.