1. Demurrer by Defendant Ellen Einkauf and Olympus Training Center to Complaint:

The demurrer is overruled in its entirety.

(a) 1st cause of action for “gross negligence”:

(i) Gross negligence long has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754.)

(ii) Whether conduct rises to the level of gross negligence as opposed to ordinary negligence generally is a question of fact. (See Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1241.)

(iii) Although Defendant’s conduct does not appear to constitute gross negligence, the court cannot rule out the plausible possibility that Defendant’s behavior was an extreme departure from the ordinary standard of conduct under these circumstances. It could be that Defendant’s choice of horse, its size in relation to the rider, constituted gross negligence because any minimally competent trainer would have known from the start that use of such a large horse would cause injury to a novice rider of Plaintiff’s size. Nor does Defendant cite to any authority indicating that as a matter of law the conduct does not constitute gross negligence.

(b) 2nd cause of action for loss of consortium:

Paragraphs 37-40 state a cause of action for loss of consortium. This cause of action is overruled since it depends on the 1st cause of action which is viable.

(c) 3rd cause of action (misrepresentation):

Facts supporting fraud must be pleaded with particularity sufficient to show how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

The Complaint alleges that on 11/01/12 Defendant made verbal and written representations, on her website, to Plaintiff that Defendant had special qualifications to help a Special Needs “Injured Rider” to overcome her fears and return to horseback riding. (Complaint, ¶ 45.) This allegation is sufficient to satisfy the specificity requirements.

As for the complaint that damages are not pled with specificity, Defendant does not cite any authority requiring such specificity. Generally the specificity requirement or fraud concerns only the misrepresentations made.

(d) Fourth cause of action (negligent misrepresentation):

“The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. While there is some conflict in the case law discussing the precise degree of particularity required in the pleading of a claim for negligent misrepresentation, there is a consensus that the causal elements, particularly the allegations of reliance, must be specifically pleaded.” National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc., 171 Cal. App. 4th 35, 50 (2009) (citations and quotations omitted).

A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

Here, the Complaint is not so bad that Defendant cannot respond to it. Plaintiffs are simply pleading alternative theories relating to Defendant’s alleged misrepresentations of expertise as a trainer for special needs/injured riders. And it is alleged Plaintiff Christina Lazuric would not have signed the release had she known of Defendant’s lack of expertise. Any uncertainty regarding the specifics of these allegations can be ascertained through the discovery process.

(e) Fifth cause of action (rescission of release based on fraud):

Because the demurrer to the fraud cause of action has been overruled and that cause of action [3rd] is viable, the defendant’s demurrer on lack of specificity is overruled.

Responding Party shall give Notice.

2. Motion by Einkauf etc. to Strike: The motion is denied. Plaintiff has successfully pleaded fraud in the 3rd cause of action which pleaded facts justify the punitive damage allegations at this point in the proceedings.

Defendant shall answer in 10 days. Responding Party shall give Notice.

3. TSC: Set for trial in December [December 1 or 8 2014].