Pending - Other Pending
Personal Injury - Other Personal Injury
GEORGINA T. RIZK
PRISM HOSPITALITY LP
MICHIE DOUGLAS CHARLES ESQ.
10/17/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
4/2/2019: Minute Order
10/11/2018: Demand for Jury Trial
Docketat 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Jury Trial - Not Held - Advanced and Vacated[+] Read More [-] Read Less
Docketat 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court[+] Read More [-] Read Less
DocketMinute Order ( (Final Status Conference;)); Filed by Clerk[+] Read More [-] Read Less
DocketDemand for Jury Trial (and notice of posting jury fees); Filed by KATHLEEN MERRICK (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
DocketComplaint; Filed by KATHLEEN MERRICK (Plaintiff)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
Case Number: ****0096 Hearing Date: November 26, 2019 Dept: 2
Merrick v. Prism Hospitality, et al.
The Demurrer of Defendants PRISM HOSPITALITY, L.P. and HYATT FRANCHISING, LLC (erroneously sued as HYATT CORPORATION), filed on 10/25/2019, is OVERRULED. Defendants are ordered to answer within 10 days.
Plaintiff alleges that she slipped and fell while exiting a bathtub at the hotel owned and operated by the Defendants. Plaintiff alleges Defendants negligently failed to maintain the valve of the bathtub, which leaked and caused water to pool on the floor, and that this failure to maintain the bathtub caused her injury. Plaintiff further alleges that Defendants failed to warn of this condition.
Based on these facts, Plaintiff asserts two causes of action, premises liability and general negligence. Defendant has demurred to each of these claims, stating (1) the complaint is barred by a delay in prosecution under Code of Civil Procedure section 583.110, et seq.; and (2) the failure to warn theory is improperly based on Civil Code section 846.
A. Delay in Prosecution Under Code of Civil Procedure section 583.110, et seq.
Defendant argues that the case should be dismissed for failure to prosecute. But this argument is not properly raised on a demurrer. Rather, for the Court to consider this argument, Defendant must bring a motion to dismiss pursuant to sections 583.410(a) and 583.420. Such motions are subject to specific procedural requirements that do not apply to demurrers; for example, a party seeking dismissal for failure to prosecute must file and serve the motion at least 45 days before the date set for the hearing. Further, a motion to dismiss under that section is an evidentiary motion; the Court is not limited to consideration of facts alleged in the complaint and matters subject to judicial notice. In short, the demurrer on this ground is procedurally improper.
The Court notes that the Court file makes plain that there would be no grounds for a motion to dismiss for delay in prosecution. The Court has the discretion to dismiss on such grounds only if the summons and complaint are served more than two years after it was filed. Code Civ. Proc. ; 583.410(a). Here, the court file shows that the complaint was filed on 10/17/2017 and that the summons and complaint were served on Defendants on 6/25/2019 and 6/26/2019 respectively. Thus, even if it were proper to bring this motion by way of a demurrer, the motion would be denied.
B. Failure to Warn
Although the demurrers purport to be directed at the failure to warn allegations in the premises liability and negligence causes of action, there is no argument on this point in the memorandum of points and authorities in support of the demurrer. The Court thus overrules the demurrers on this ground. Defendants make arguments regarding the applicability of Civil Code section 846 in connection with the motion to strike, which arguments are addressed below.
II. MOTION TO STRIKE
Defendants’ Motion to Strike Portions of Plaintiff’s First Amended Complaint, filed on 10/25/2019, is GRANTED in part and DENIED in part. The Court strikes only the words “Civil Code section 846” and “recreational user” in the paragraph labeled Prem. L-3; the remaining portions of that paragraph and the attachment labeled “Attachment Prem. L-3” are not stricken. .
Defendants move to strike paragraph labeled “Prem. L-3” in Plaintiff’s first cause of action for premises liability, as well as the “Attachment to Prem. L-3.”
Plaintiff used Judicial Council Form PLD-PI-001(4) in preparing the cause of action for premises liability in the first amended complaint. Plaintiff checked the box concerning “Willful Failure to Warn [Civil Code section 846].” In so doing, Plaintiff has alleged that the defendants “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure or activity.” Plaintiff also alleges that she was a “recreational user” of the hotel. The Attachment Prem. L-3 attachment contains additional allegations in support of a negligent failure to warn theory.
Defendants seek to strike these portions of the first amended complaint on the ground that Civil Code section 846 does not apply to this case. As an initial matter, the Court notes that the owner of a commercial premises “who knows of, or by the exercise of reasonable care could discover, an artificial condition upon his premises which he should foresee exposes his business visitors to an unreasonable risk, and who has no basis for believing that they will discover the condition or realize the risk involved, is under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm.” Bridgman v. Safeway Stores, Inc. (1960) 53 Cal. 2d 443, 447-49. Defendants do not argue that Plaintiff could not state a claim under that general principle. Defendants’ only argument concerns the applicability of Civil Code section 846.
Defendants are correct that Civil Code section 846 has no application to the present case. That section creates an exception to the general premises liability standard (quoted above) for recreational users of private property. Maneul v. Pacific Gas & Electric Co. (2009) 173 Cal. App. 4th 927, 937-38. limits the liability of property owners to recreational users, and correspondingly imposes a higher burden on recreational users who seek recovery against property owners. Specifically, such recreational users are required to prove, among other things, that the failure to warn or guard against the dangerous condition was willful or malicious, as opposed to just negligent. Id.
Here, as Defendants expressly admit, Plaintiff was not a recreational user of the hotel bathtub, and thus Plaintiff is not required to meet the higher standard set forth in section 846. That said, even though Plaintiff is not required to prove malicious or willful conduct, Plaintiff could establish a premises liability claim by proving that Defendants “maliciously and willfully failed to guard or warn against a dangerous condition.” Court thus declines to strike those allegations. , in which Plaintiff alleges simply alleges that Defendants acted negligently.
There are thus only a few words in the premises liability cause of action that are subject to a motion to strike: the words “Civil Code section 846” and “recreational user” in the paragraph Prem. L-3. The Court grants the motion to strike as to those words only. The remaining allegations in paragraph Prem. L-3 and Attachment Prem. L-3 are not stricken.
Moving party is ordered to give notice.
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