Case Number: BC515141    Hearing Date: July 24, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

FERNANDO NATARENO, )
) Case Number BC515141
Plaintiff, )
) ORDER AFTER HEARING
v. )
) Date of Hearing:
WAL-MART STORES, INC., ) July 24, 2014
) Dept. A-11
Defendant. ) Judge Randolph A. Rogers
____________________________________)

The demurrer of Defendant Wal-Mart Stores, Inc., to the Complaint came on for hearing on July 24, 2014. Plaintiff Fernando Natareno appeared through his counsel of record, ________________. Defendant Wal-Mart Stores, Inc., appeared through its counsel of record, ___________________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:

The demurrer of Defendant Wal-Mart Stores, Inc., is OVERRULED, and Defendant is Ordered to file its Answer on or before August 15, 2014.

SO ORDERED this the _____ day of July, 2014.

______________________
RANDOLPH ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

FERNANDO NATARENO, )
) Case Number BC515141
Plaintiff, )
) STATEMENT OF DECISION
v. )
) Date of Hearing:
WAL-MART STORES, INC., ) July 24, 2014
) Dept. A-11
Defendant. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case, filed by Plaintiff Fernando Natareno (“Plaintiff”), concerns a slip and fall accident that occurred at one of Defendant Wal-Mart Stores, Inc. (“Defendant”) facilities on August 2, 2011. Plaintiff apparently slipped on spilled shampoo, which had congealed on the floor due to another customer holding a bottle of shampoo upside-down, resulting in leakage from the bottle.

2. Plaintiff filed suit on July 15, 2013, alleging causes of action for products liability (negligence), strict products liability, and negligence.

3. Defendant filed its demurrer on February 28, 2014, arguing that the Complaint is deficient because it fails to identify the specific product that is claimed to be defective. Plaintiff served his Opposition on July 9, 2014 by mail, which was received and filed by the Court on July 16, 2014. Defendant filed its reply on July 17, 2014.

4. Standard for ruling on demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Cal. Code Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339.

5. A general demurrer admits the truth of all factual, material allegations properly pleaded in the challenged pleading, regardless of possible difficulties of proof. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

6. Pursuant to Cal. Code Civ. Proc. §§ 430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2001) 31 Cal.4th 1074, 1082. The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. Id.

7. Products Liability – The elements for a strict product’s liability claim are: (1) product is placed on the market; (2) defendant has knowledge that it will be used without inspection for defect; (3) defect in the manufacture or design, or there is a failure to warn; (4) causation, and (5) injury. See Nelson v. Superior Court (2006) 144 Cal.App.4th 689, 695.

8. Liability for defects in a product “extends not only to actual consumers or users but to any human being to whom an injury from the defect is reasonably foreseeable.” Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1026. Moreover, “California provides broad protection to bystanders and does not limit strict liability to situations occurring after sale of the product or equivalent transaction.” Nelson v. Superior Court (2006) 144 Cal.App.4th 689, 698 (vacating trial court grant of judgment on the pleadings in favor of defendant where gasoline stored at gas station leaked and caused property damage to plaintiff).

9. Uncertainty – “A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in pleading, but is directed at the uncertainty existing in the allegations actually made.” People v. Taliaferro (1957) 149 Cal.App.2d 822, 824-25 (disapproved of on other grounds by Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717). “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. “[W]here the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135,

10. Defendant contends that the Complaint fails to identify the specific product in question, and because of this, the Complaint is fatally defective. However, it has long been the case that where a matter “in respect to which the complaint is uncertain or ambiguous, was particularly within the knowledge of the defendant, such uncertainty or ambiguity is not a ground of demurrer of which the defendant can avail himself.” Dow v. City of Oroville (1913) 22 Cal.App.215, 222. See Also Strozier v. Williams (1960) 187 Cal.App.2d 528, 532 (plaintiff “need not particularize matters presumptively within the knowledge of the demurring defendants”); Fanucchi v. Coberly-West Co. (1957) 151 Cal.App.2d 72, 82-83 (“A demurrer for uncertainty will not lie where the ambiguous or uncertain facts alleged are presumably within the knowledge of the demurring party”). A bottle of hair product marketed for sale by Defendant, spilled in Defendant’s facility, and presumably kept at Defendant’s facility, and the facts pertaining to such a bottle, are facts presumably within the knowledge of Defendant.

11. This is particularly true where, as represented by Plaintiff, Defendant was on notice the day the incident occurred. Opposition, Exhibit D. Indeed, Defendant’s assistant manager reviewed the surveillance footage and saw the sequence of events leading to the spill and slip. It appears that Defendant at a minimum had some idea that it could be subject to liability and had notice of where the bottle in question had been placed. Moreover, it appears that Defendant retained control over the bottle in question. Under such circumstances, a demurrer on the grounds of uncertainty, ambiguity, or vagueness cannot be sustained, because Defendant is uniquely in position of discovering and safeguarding the facts related to the incident.

12. Defendant also argues in its Reply that Plaintiff has not alleged causation. Specifically, Defendant argues that “the pleaded facts do not show plainly the connection between cause and effect or give rise to an inference of causation under products liability.” Reply at 6:6-7.

13. The facts as pleaded in the Complaint are that “a bottle of hair product . . . when held upside down by another shopper, leaked on the floor of the aisle.” Complaint at ¶6. Plaintiff therein slipped on the leakage and sustained injuries. Complaint at ¶5. It seems reasonably indisputable that an ordinary bottle containing shampoo or other liquids would not leak when held upside down. The inference, therefore, is clear that some defect existed in the bottle such that it would leak from this reasonably foreseeable use.

14. Causation is a necessary element in strict products liability as it is in negligence liability. See 50A Cal.Jur.3d Products Liability §37. See also County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292. However, “[a] plaintiff need not establish that a defendant’s product was the sole potential proximate cause of injury, but only that the defendant’s conduct substantially contributed to the injury and the circumstances make it just to hold the defendant responsible for the consequences of the accident.” Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278, 1302. Stated differently, “the plaintiff must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 696. To be a substantial factor, “the contribution of the individual cause [must] be more than negligible or theoretical. Thus, a force which plays only an infinitesimal or theoretical part in bringing about injury, damage, or loss is not a substantial factor, but a very minor force that does cause harm is a substantial factor. This rule honors the principle of comparative fault.” Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 (internal citations omitted).

15. Based on the facts pled in the Complaint, it is clear that the alleged defect existing in the bottle, at a minimum, was a “very minor force that does cause harm.” As such, it was a substantial factor in Plaintiff’s injury, and the Complaint has alleged enough as to causation.

16. Accordingly, the Defendant’s demurrer is OVERRULED, and Defendant is Ordered to file its Answer on or before August 15, 2014.

SO ORDERED AND ADJUDGED this the ______ day of July, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE