Case Number: BC661864 Hearing Date: June 01, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

CATHERINE tucker ;

Plaintiff,

v.

food 4 less , et al.;

Defendants.

Case No.: BC661864

Hearing Date: June 1, 2018

[TENTATIVE] order RE:

Demurrer to complaint

MOVING PARTY: Defendants, Rolling Frito-Lay Sales, LP, Frito-Lay Inc., and Pepsico Inc.

RESPONDING PARTY: Plaintiff, Catherine Tucker

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

Background

Plaintiff Catherine Tucker (“Plaintiff”) filed a complaint on May 19, 2017, alleging two causes of action for premises liability and general negligence. On March 9, 2018, Defendants Rolling Frito-Lay Sales, LP, Frito-Lay Inc., and Pepsico Inc. (“Defendants”) filed a demurrer to each cause of action of the Complaint. Plaintiff filed an opposition on March 27, 2018. Defendants filed a reply on April 2, 2018.

On April 9, 2018, the Court continued the hearing on the demurrer to June 1, 2018 to allow for supplemental briefing regarding the timeliness of the demurrer. Plaintiff was required to file and serve supplemental briefing by April 26, 2018. Defendants were similarly ordered to file supplemental briefing. On April 23 and May 15, 2018, Defendants filed supplemental declarations regarding their attempts to meet and confer with Plaintiff. On May 15, 2018, Defendants filed a supplemental brief. On May 23, 2018, Plaintiff filed her supplemental briefing.

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.) Further, Plaintiff’s general negligence claim alleges that Defendants failed to adequately hire, train, and supervise their employees in the operation of a fork lift.

DEFENDANTS’ DEMURRER

Defendants demur to the first and second causes of action for failure to state sufficient facts and uncertainty. Defendants argue that the complaint is uncertain because Plaintiff alleges vague and contradictory facts. (Compl. ¶ Prem.L-1.) For example, Plaintiff alleges she was struck by a box off the aisle’s top shelf “which presented a dangerous condition.” Defendants claim this is uncertain because Defendants cannot determine what Plaintiff claims is the dangerous condition. Similarly, the Complaint alleges that Defendants knew that employees “operating and supervising the operations of the fork lift were unfit, untrained, unqualified and/or incompetent.” (Compl. ¶ GN-1(3).) Defendants assert that they cannot reasonably respond because no-where in the complaint is there even a mention of the forklift. The same goes to the alleged statutory violations. Moreover, there are two instrumentalities alleged: a negligent forklift operator and a falling box. Defendants argue that this is an irreconcilable conflict, and they cannot determine how Plaintiff was injured. As to the premises liability claim, Defendants contend that Plaintiff has failed to allege a dangerous condition. The mere fact that the box fell and hit Plaintiff does not create any inference that a dangerous condition existed or that Defendants acted negligently. Defendants argue that a “large box” is not an inherently dangerous condition, nor one that reasonable diligence can prevent. Defendants assert that no other facts can be reasonably inferred from the Complaint. As to the general negligence claim, Defendants argue that the Complaint fails to demonstrate causation. Defendants contend that even if Defendants’ unfit employee negligently operated a forklift, the Complaint does not allege how that forklift caused Plaintiff’s injury.

Plaintiff opposes and argues they have pled sufficient facts, and that the Complaint is not uncertain. Plaintiff first asserts that Defendants’ demurrer is untimely. Defendants were served with the complaint on January 19, 2018. Defendants’ demurrer was due on February 18, 2018, but they did not file the demurrer until March 9, 2018. Moreover, Defendants failed to adequately meet and confer. As to the merits, Plaintiff contends that she has alleged the required elements of negligence and has met the liberal pleading standards of California. Plaintiff argues that the complaint alleges that a box fell from the top shelf of merchandise display and struck Plaintiff, and that a forklift was negligently used by an employee which contributed to the box striking Plaintiff. Plaintiff also alleges that Defendants had a duty of care to maintain the premises in a safe manner. Plaintiff contends that this is sufficient for negligence. Anything further should be ascertained in discovery.

On reply, Defendants argue that they submitted a timely demurrer per an extension for a responsive pleading. Moreover, Plaintiff’s opposition was also late. Defendants also contend that there were adequate meet and confer efforts, and that lack of meet and confer or outstanding discovery does not provide grounds to overrule a demurrer. Defendants argue that Plaintiff’s opposition failed to clarify any of the uncertainty articulated in the moving papers. Defendants reiterate their moving arguments on reply.

On a supplemental brief, Defendants argue that Plaintiff’s contentions regarding the timeliness of the demurrer are unfounded and that Plaintiff has not supplied supplemental briefing as requested by the Court. Plaintiff has not shown an entitlement to a remedy, and striking the demurrer would simply be an idle act, as Plaintiff would need to take Defendants default after striking the demurrer, which would be properly vacated.

Plaintiff has also supplied a supplemental brief, which is addressed below.

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, supra, 147 Cal.App.4th at 747.)

A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

DISCUSSION

Meet and Confer Requirement

Counsel’s declarations regarding Defendants’ attempts to meet and confer and Counsel’s conversations regarding the alleged defects in the Complaint satisfy the meet and confer requirements. (Dishchyan Decl. ¶¶ 4-6; Coriaty Decl. ¶¶ 6-8; Supp. Coriaty Decl. ¶¶ 5-8.)

Timeliness

As described above, the Court allowed for supplemental briefing as to the timeliness of the instant demurrer. The Court notes that Plaintiff filed her supplemental briefing late. Plaintiff was ordered to have filed supplemental briefing by April 26, 2018. Plaintiff did not submit that brief until May 23, 2018—nearly a month late. Nonetheless, the court will consider Plaintiff’s supplemental briefing in its discretion. (CRC Rule 3.1300(d).)

The Court does not find Plaintiff’s waiver argument pursuant to CCP § 430.80(a) persuasive. Plaintiff admits that a party cannot waive an objection for failure to state facts sufficient. (Plaintiff’s Supp. Opp. p. 3:1-3.) A general demurrer, such as the instant demurrer, is an objection for failure to state facts sufficient. At best this argument goes against the demurrer for uncertainty only. As such, Plaintiff’s argument that the demurrer should be overruled on the grounds that it was untimely filed is without a legal basis. Moreover, Defendants’ declaration regarding the meet and confer efforts and briefing indicates that Defendants’ demurrer was not late. (Dishchyan Decl. ¶ 3, Ex. 1.) Significantly, Plaintiff’s supplemental briefing does not address the extension she granted Defendants for a responsive pleading.

Simply put, the Court has discretion to consider an untimely demurrer. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 749.) Moreover, the vehicle for attacking an untimely demurrer is a motion to strike before the opposition is due. (CCP §§ 435(b)(1)-(3), 1005.) Plaintiff has neither shown why this court should not consider the demurrer, nor made the appropriate motion to strike. Therefore, to the extent that the instant demurrer was late-filed, the Court will exercise its discretion consider the demurrer.

Demurrer for Uncertainty

Defendants argue that the complaint is uncertain because Plaintiff alleges vague and contradictory facts. Here, Plaintiff alleges she was struck by a box off the aisle’s top shelf which presented a dangerous condition. (Compl. ¶ Prem.L-1.) Additionally, the Complaint alleges that Defendants knew that employees operating and supervising the operations of the fork lift were unfit, untrained, unqualified and/or incompetent. (Compl. ¶ GN-1(3).)

These allegations, while potentially vague, are not so-bad that Defendants cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against them. (CCP § 430.10(f); Khoury, supra, 14 Cal.App.4th at 616.) As currently constituted, the Complaint avers sufficient allegations that Defendants can admit or deny, i.e. that such a dangerous condition exists or that they negligently supervised employees. The addition of allegations regarding the fork lift and statutes, while ambiguous, do not render the Complaint uncertain and can be sufficiently admitted/denied. Defendants’ demurrer is principally concerned with the sufficiency of these facts and the perceived contradictions of the allegations—not with whether these allegations are truly uncertain from a pleading standpoint. Accordingly, Defendants’ demurrer for uncertainty is OVERRULED.

First Cause of Action – Premises Liability

Premises liability is a form of negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) To allege a cause of action for premises liability, a plaintiff must show: that 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. (Ibid.; CACI No. 1000.) A complaint for premises liability based upon negligence is not subject to strict pleading requirements and may be generally pled. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1116-1117.)

Here, Plaintiff alleges she was struck by a box off the aisle’s top shelf which presented a dangerous condition. (Compl. ¶ Prem.L-1.) The Complaint alleges Defendants negligently maintained that dangerous condition, and failed to warn of the condition, which led to Plaintiff’s injuries. (Compl. ¶ Prem.L-1.)

These factual allegations are sufficient for pleading purposes to put Defendants on notice of the dangerous condition that Plaintiff alleges led to her injuries. The inclusion of allegations regarding Defendants’ negligent training/supervision of a forklift neither contradicts nor supersedes the allegations regarding the shelf and box as a dangerous condition. (See Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1120 [to survive a demurrer, a complaint only needs to state an entitlement to some relief].) Moreover, the allegations of the box and shelf as a dangerous condition cannot be merely contradicted by Defendants’ arguments. (See e.g. Dem. p. 9.) Defendants cite no authority that such a determination should be made at the demurrer stage and cite no authority that such a condition cannot be a dangerous condition. In fact, each of Defendants’ cited authority regarding dangerous conditions only generally discuss the sufficiency of evidence of the dangerous condition after trial. (Staggs v. Atchison, Topeka & Santa Fe Ry. Co. (1955) 135 Cal.App.2d 492; Harpke v. Lankershim Estates (1951) 103 Cal.App.2d 143.)

Accordingly, Defendants’ demurrer to the first cause of action is OVERRULED.

Second Cause of Action – General Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

As to the second cause of action, the complaint alleges general negligence, on the apparent basis of negligent hiring/training/supervision of employees regarding a forklift in some capacity. The Complaint alleges that Defendants owed Plaintiff a duty to adequately “hire, train, and supervise their employees and that Defendants knew or should have known that the employees operating and supervising the operations of the fork lift were unfit, untrained, unqulified [sic], and/or incompetent to perform the work he/she was hired to do… [¶] As a result, Defendants actually and proximately caused the Plaintiff personal injuries…” (Compl. ¶ GN-1.) However, this is the only reference to a forklift in the Complaint.

Defendants contest the element of causation and argue that the off-handed reference to the forklift as the basis for the general negligence claim is unsupported by the facts alleged. The Court agrees. Plaintiff’s contention in opposition that a forklift was negligently used by an employee “contributed” to the box striking Plaintiff is not factually alleged in the complaint, nor can it be reasonably inferred. (Opp. p. 4:20-24.) There are no allegations that an employee of Defendants operated a forklift negligently — only that the unknown employee was unfit for such a purpose. (See Compl. p. 5.) As such, no causation is alleged between Defendants’ negligent hiring/training/supervision of employees and Plaintiff’s injuries. Without such an allegation, the Complaint only concludes that Defendants’ negligence caused Plaintiff’s injuries.

Accordingly, Defendants’ demurrer is SUSTAINED as to the second cause of action with 20 days leave to amend.

Conclusion

Defendants’ demurrer is OVERRULED as to the first cause of action and SUSTAINED as to the second cause of action. Plaintiff is to file an amended complaint within 20 days.

All parties should note that the hearing on this motion and all future hearings will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

The moving party is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: June 1, 2018 ___________________________

Elaine Lu

Judge of the Superior Court