Case Number: 18STCV02596 Hearing Date: January 15, 2019 Dept: 3

SHERRY STERLING,

Plaintiff(s),

vs.

EDWARD LEAL DA ROZA, JR., ET AL.,

Defendant(s).

Case No.: 18STCV02596

[TENTATIVE] ORDER DENYING MOTION TO STRIKE

Dept. 3

1:30 p.m.

January 15, 2019

1. Allegations of the Complaint

Plaintiff, Sherry Sterling filed this action against Defendants, Edward Leal da Roza, Jr., Mariners Village Apartment Homes, E&S Ring Management Corp., and Marina Admiralty Company for damages arising out of an incident that occurred at Defendants’ apartment building. Plaintiff alleges the residents of Defendants’ building, including Plaintiff and da Roza, were invited to Defendants’ annual Halloween party on 10/27/17. She alleges Defendants invited its residents to an event with light refreshments and live music. She alleges da Roza fell over a guardrail and/or handrail on the premises that failed to meet minimum requirements and/or standards for safety of residents and guests. When he fell, he landed on Plaintiff, who suffered injuries.

The complaint includes causes of action for premises liability and negligence against the entity defendants, and for negligence against the individual defendant. The complaint includes allegations of “gross negligence” and “conscious disregard” against the entity defendants, which allegations are supported by contentions that Defendants failed to obtain necessary permits for the event, failed to provide sufficient security for the event, and failed to ensure the premises were safe to host the event.

2. Motion to Strike

At this time, the entity defendants move to strike Plaintiff’s references to “gross negligence” and the related allegations. The parties agree that a cause of action for gross negligence is not a separate and distinct cause of action, which is why the allegations of “gross” negligence are found in the causes of action for premises liability and negligence, and are not stated as a separate cause of action.

CCP §436 permits a defendant to file a motion to strike any “irrelevant, false or improper matter” instead in a pleading. While not pled in the complaint, the parties appear to agree that there will be an issue of Plaintiff’s waiver of her claims against the entity defendants in the litigation. The allegation of gross negligence is therefore not “irrelevant,” as it would affect resolution of the waiver defense. The Court also cannot say that the allegations are “false” or “improper.”

Notably, per CCP §452, it is the policy of the law to construe the pleadings liberally. Per C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872, the complaint need only allege “ultimate facts,” not “evidentiary facts.” While fraud and claims for punitive damages must be pled with specificity (see Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 and Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-42, respectively), no other cause of action or claim carries the same requirement.

Defendants cited no authority which permits the Court to determine whether alleged conduct constitutes gross negligence on a pleading motion such as this. The motion to strike is therefore denied. This ruling is without prejudice to Defendants’ right to raise the issue by way of an evidentiary motion, and this ruling is not intended to make any determination, in either direction, concerning whether or not the claims in the complaint rise to the level of gross, as opposed to ordinary, negligence.

Defendants are ordered to file an answer to the complaint within ten days. Defendants are ordered to give notice.