Case Name: Timothy Messier v. Homestead Bowl
Case No.: 18CV337321

This is a personal injury action. The October 30, 2018 form Complaint filed by Plaintiff Timothy Messier (“Plaintiff”) states claims for General Negligence and Premises Liability against Defendant Homestead Bowl (“Defendant”) and Does 1-30. The Complaint alleges that Plaintiff was present on Defendant’s property on December 22, 2017 and was injured by dangerous conditions on the property created by Defendant’s negligence. Currently before the Court is Defendant’s demurrer to the entire complaint on the ground that it is uncertain.

Request for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

With his opposition to the demurrer Plaintiff has submitted a request for judicial notice asking the Court to take notice of three documents (copies of correspondence between the parties submitted as exhibits B-D to the declaration of Plaintiff Counsel Maureen Pettibone Ryan) pursuant to Evidence Code §452(h). The request is DENIED as this correspondence is irrelevant to the issue presently before the Court: whether Plaintiff’s Complaint is uncertain.

Even if it were relevant, correspondence between private parties would rarely be noticeable under Evidence Code §452(h). (See Gould v. Md. Sound Indus. (1995) 31 Cal.App.4th 1137, 1145 [“Judicial notice under Evidence Code section 452, subdivision (h) is intended to cover facts which are not reasonably subject to dispute and are easily verified. These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.”].)

Demurrer to Complaint
The Court, in ruling on a demurrer, treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

As an initial matter the Court notes that Code of Civil Procedure (“CCP”) §430.41(a) requires the parties to meet and confer “in person or by telephone” before the filing of a demurrer. The mere exchange of emails or written letters (with “invitations” to speak by telephone), as described in the meet and confer declarations from counsel submitted by both sides, does not comply with the express terms of the statute. The Court will proceed with the demurrer despite this technical noncompliance, but it expects counsel to fully comply with the statute should any future demurrer be filed.

As noted above Defendant demurs to the entire complaint on a single ground, uncertainty. (See Defendant’s Notice of Demurrer and Demurrer at p. 1:23-28, citing CCP §430.10(f).) The demurrer on uncertainty grounds is OVERULED. “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; see also Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 [“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.”])

While the operative complaint is not a model pleading it cannot reasonably be described as “incomprehensible” as it adequately informs Defendant that Plaintiff is bringing claims for general negligence and premises liability against it based on an injury allegedly sustained by Plaintiff while on premises owned and/or controlled by Defendant on December 22, 2017.