Case Number: 18STCV03311 Hearing Date: May 31, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEMURRER TO THE FIRST AMENDED COMPLAINT

I. INTRODUCTION

On November 1, 2018, Plaintiff Jonahary Aleman Arias (“Plaintiff”) filed this action for general negligence and premises liability arising out of a January 1, 2017 incident where Plaintiff stepped on a screw on the floor. On February 1, 2019, Plaintiff filed a First Amended Complaint (FAC) against NBC Universal Media, LLC, Forte Specialty Contractors of California, LLC, and Universal City Studios LLC. Universal Studios LLC (erroneously sued as Universal Studios, LLC and NBC Universal Media, LLC) (“Defendant”) demurs to the FAC.

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.)

III. DISCUSSION

Plaintiff alleges that while performing construction or renovation work at Universal City Walk, Plaintiff stepped on a 2.1 cm screw left on the floor, which penetrated her shoe and left foot. Plaintiff contends Defendant breached its duty to keep the construction area safe from unreasonable risk of harm or to give adequate warning. (FAC, ¶ GN-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).) On March 26, 2019, defense counsel spoke with Plaintiff’s counsel regarding the basis for this demurrer and they were unable to reach an agreement. (Declaration of Carol A. Baidas, ¶¶ 5, 6.)

General Negligence and Premises Liability

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Defendant argues Plaintiff’s allegations fail to set forth with particularity or precision where in City Walk the incident occurred, what construction and/or renovation was going on in the vicinity, how close the construction was to where Plaintiff was walking, whether or not construction was actually occurring at the time of the incident, what type of injury Plaintiff suffered, and whether any medical attention was required or rendered. Further, Defendant contends Plaintiff failed to allege what duty of care Plaintiff was entitled to, how Defendant breached that duty of care, and what causal connection exists between Defendant’s breach and the damage caused as a result. Finally, Defendant contends the screw was a trivial defect or was an obvious danger.

Plaintiff argues she has alleged sufficient facts that Defendant owned, leased, occupied or controlled the property and that it owed business invitees such as Plaintiff to keep the premises in a reasonably safe condition. Plaintiff alleged Defendant knew or should have known of the dangerous condition of screws left on the floor given the construction/renovation work taking place in areas open to the general public and the condition posed an unreasonable risk of harm to visitors. Plaintiff alleged that she required medical attention as a result of the incident.

Plaintiff has alleged sufficient facts to state a cause of action against Defendant for general negligence and premises liability. The details Defendant seeks as to where exactly on Universal City Walk the incident took place, details about the construction/renovation, and details about Plaintiff’s injuries and damages can be clarified in discovery. The Court cannot determine, on demurrer, whether a defect was trivial or open and obvious. And even if the defect was obvious and Defendant had no duty to warn, Defendant may still have had a duty to remedy the defect. On demurrer, the Court considers the allegations of the complaint to be true and Plaintiff has alleged sufficient facts as to each element of her causes of action.

IV. CONCLUSION

Universal Studios LLC’s demurrer is OVERRULED.

Moving party to give notice.