Demurrer

1DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CARMEN CORNIELLE – In Pro Per 2623 Old Topanga Canyon RoadTopanga, CA 90290 Telephone No. (818) 591-1916DEFENDANT

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NOAH WEISBERG, an individual,

Plaintiff,

vs.

CARMEN ROSE CORNIELLE; and DOES 1 through 10, inclusive,

Defendants.

)))))))))))))))))

Case No.: SC097282

JUDGE: Hon. John A. Kronstadt, Dept. N

NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

Date: 11/20/2008Time: 8:30 A.M.Dept.: “N”

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

NOTICE IS HEREBY GIVEN that on November 20, 2008, at the hour of 8:30 a.m., or

as soon thereafter as counsel can be heard in Department “N” of the above-entitled Court,

Defendant, CARMEN CORNIELLE, will move the court for an order sustaining his demurrer to

the Plaintiff’s First Amended Complaint.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Said demurrer is made pursuant to C.C.P. Section 430.10 and 430.50 and will be based

on this notice, the memorandum of points and authorities attached hereto, the pleadings, records

and files in this action, and on such evidence as may be presented at the hearing on this

demurrer.

Dated: October 23, 2008

IN PRO PER

ByCARMEN CORNIELLE

Defendant


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEMURRER TO THE FIRST AMENDED COMPLAINT

Defendant, CARMEN CORNIELLE, hereby demurs to the First Amended

Complaint herein on each of the following grounds:

1. Plaintiff’s First Amended Complaint fails to state facts sufficient to constitute a

cause of action and is uncertain. (CCP 430.10 (e) and (f)).

WHEREFORE, this demurring defendant respectfully requests:

1. That this Court sustain this Demurrer without leave to amend; and

2. For such other and further relief as the Court may deem just and proper.

I certify that this Demurrer is filed in good faith and is not filed for the purpose of

delay and in Declarant’s opinion the Demurrer is well taken and should be granted.

Dated: October 23, 2008

IN PRO PER

ByCARMEN CORNIELLE

Defendant


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMORANDUM OF POINTS AND AUTHORITIES

1. STATEMENT OF FACTS

This action arises out of injuries sustained by plaintiff after falling off a horse he rented

from defendant CORNIELLE. On the date of the accident, plaintiff WEISBERG and his

companion Ms. Audrey Ciobanu rented horses from defendant CORNIELLE dba LA

HORSEBACK RIDING for purposes of recreational horseback riding. Prior to renting the

horses to plaintiff, CORNIELLE inquired about the plaintiff’s physical condition and skill level.

Plaintiff was also admonitioned, as all potential riders are, of the dangers, hazardous and

inherent risk of horseback riding. Plaintiff and his companion were both given a Waiver and

Release to sign before being allowed to rent a horse. The waiver sets forth in plain language the

inherent risk of horseback riding and the unpredictability of horses, including the possibility of a

horse going from a walk to a canter to a trot to a gallop, without reason. The person renting the

horse does so at their own risk. The waiver also sets forth in plain language that the person

renting the horse releases all rights to any claims it may have against CORNIELLE or LA

HORSEBACK RIDING. Plaintiff WEISBERG fully acknowledged his fully reading and

understanding the Waiver and Release before signing it.

Although, WEISBERG stated he was strong and in good physical condition, because of

his skill level, he was given a gentle horse, one that had taken hundreds of children under the

age of 10 out of trail rides without incident. Mr. Weisberg and his companion were placed in

the first group out of two groups (group A and group B) that were going out on a guided trail

ride. It is common practice to send out two groups of trail riders approximately 10 to 15

minutes apart.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The trail ride is approximately 1 ½ miles with the mid-point being ¾ of a mile from the

trail head or beginning. Once a group reaches the mid-point, they stop and a safety check is

conducted by the trail guide. Also, it is an opportunity to take pictures.

The mid-point of the tour ride is referred to in plaintiff’s amended complaint as the

“photo spot” (Pltf.’s 1st Amended Complaint page 2, ¶¶ 9 & 10). Such designation is incorrect

and is incorrectly referred to by plaintiffs. The mid-point is actually the “safety check point”

and tour turn around point. At the “safety check point,” the trail guides are required to stop the

group and check cinches and other riding equipment before turning the tour group around and

heading back to the stables. It is at this point, that most riders request for pictures to be taken.

In the instant case, it was at this mid-point that group B had arrived at the “safety check

point.” The trail guide dismounted his horse and began his safety equipment check as he has

done on hundreds of other occasions. However, at that particular time, for no particular reason,

his horse began trotting away and caught up to group “A”. The horse plaintiff was riding also

began to trot which lead to plaintiff falling off his horse. The trail guide immediately attended

to plaintiff and paramedics were called and dispatched to the scene.

At no time before or during the time of the incident did any trail guide or anyone else do

anything extra ordinary that caused or lead to the trail guide’s horse to trot off or to cause the

horse ridden by plaintiff WEISBERG to do anything that is not common to a horse or horseback

riding. This was nothing more to this incident other than a HORSE BEING A HORSE!

2. DEMURRER TO THE FIRST AMENDED COMPLAINT IS PROPER

WHEN FIRST AMENDED COMPLAINT DO NOT STATE FACTS

SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION

“When any ground for objection to a complaint, or cross-complaint or answer appears on

the face thereof or from any matter of which the Court is required to or may take judicial notice,

the objection on that ground may be taken by a demurrer to the pleading.”


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Code of Civil Procedure, Section 430.30(a)

“The party against whom a complaint or cross-complaint has been filed may

object, by demurrer or answer as provided in Section 430.30 to the pleading on any one

or more of the following grounds: . .

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, 'uncertain' includes

ambiguous and unintelligible.”

Code of Civil Procedure, Section 430.10

3. ALLEGATIONS CONTAINING ASSUMPTIONS, SPECULATIONS AND

CONCLUSIONS ARE NOT SUCFFICIENT TO OVERCOME THE BURDEN OF

THE DOCTRINE OF ASSUMPTION OF RISK

Plaintiff’s deftly worded First Amended Complaint still fails to overcome the

“assumption of risk doctrine” when engaging in a sport or activity, such as horseback riding.

Plaintiff’s First Amended Complaint is littered with assumptions, conclusions and speculation

without any factual bases or support.

Firstly, plaintiff assumes that the guided tour he went on was the “last of the day.” (Pltf.’s

1st Amended Complaint page 2, ¶¶ 7). This was not the case, as LA HORSEBACK RIDING

operates evening excursions, as well as, night rides, such was the case of the day of the incident.

Plaintiff’s First Amended Complaint further speculates and makes the assumptions that the

turning point of the trail guide was a “photo spot,” (Pltf.’s 1st Amended Complaint page 2, ¶¶ 9

& 10), when in actuality it is what is referred to as the “safety check point.” The “safety check


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

point” is the mid-point of the trail ride. It is also the turnaround point of the guided tour which

is approximately ¾ of mile from the trailhead to the stables.

Next, and probably, the most ironic, is plaintiff presumes to know what a horse is

thinking. Plaintiff stated, “Knew that it was the end of the day and that the horses would be

inclined to head home to the stables; and knew that his horse was reasonably likely to be able to

smell or hear horses…” (Pltf.’s 1st Amended Complaint page 3, ¶ 11). Plaintiff also assumes to

know what the tour guide was thinking, as well as, possessing the ability to know what the horse

was thinking. There is nothing extraordinary in the behavior of the horse or trail guide. It still

amounts to nothing more than a HORSE ACTING LIKE A HORSE.

Plaintiff’s First Amended Complaint makes the assumption that the trail guide of group

“B” “dropped his horse’s reins” (Pltf.’s 1st Amended Complaint page 3,¶ 11). There has been no

evidence or factual information presented that the trail guide “dropped his horse’s reins.”

Plaintiff alleges that the guide’s failing to secure his horse increased the risk inherent. First of

all, a 180-200 lb., person 300 lbs. for that matter, is not going to restrain a 2,000 lb animal, if

that animal chooses not to be restrained. Case in point, plaintiff was holding the reins on his

horse, yet he could not prevent the horse from taking off.

However, the trail guides are also caretakers for the horses they ride. They feed, groom

and bond with the horses they ride. Such interaction builds a trust between the trail guide and

the horse. The horse perceives the guide as an Alpha horse. What control the guide has over the

horse is purely psychological. Holding the reins or not holding the reins has nothing to do with

restraining a horse. It is the “trust” between the animal and his handler (guide). A horse trotting

off is nothing more than a HORSE BEING A HORSE. It is an inherent risk when dealing with

horses.

Again, it is mere speculation on plaintiff’s part to assume that the only way to restrain a

horse is to hold its reins. This is simply incorrect.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clearly, the allegations contained in plaintiff’s First Amended Complaint are

conclusionary, speculative, presumption and uncertain allegations that fail to meet the

requirements for bringing a cause of action against defendant CORNIELLE.

The allegations in the First Amended Complaint fail to state any factual information of

any misconduct or recklessness on the part of defendant as to increase the risk of harm beyond

those already inherent in horseback riding. For plaintiff to base his theory of negligence on

increased inherent risk, the general rule is that such allegations must specifically plead

intentional or reckless conduct outside ordinary activity involved in a sport or activity, such as

horseback riding (See Knight v. Jewett, 3 Cal. 4th 296 (1992). If plaintiff fails to plead such

specific allegations, then plaintiff’s complaint does not support a cause of action for negligence

and should be dismissed. In Cohen v. Five Brooks Stable, 159 Cal.App. 4th 1476, 1499, 1504

the court stated it this way:

“Horseback riding is an active sport with inherent dangers, including

unpredictable behavior by the horse, which by their nature, are difficult to

control, and even afternoon trail ride on back of a walking horse has

inherent risk of injury [sic] Harrold, supra, 19 Cal.App. 4th 578. (1499)

“Two Court of Appeal cases, cited and quoted approvingly in Kahn, confirm

that an allegation of negligence in a complaint is not the same as an

allegation of reckless or intentionally harmful conduct and cannot be

converted into one [citations]. This principle is especially applicable where

there is an “utter absence in the moving papers any evidence of “intentional

misconduct or recklessness on the part of the instructor” [citations].” (1504)

Cohen also stated that the inherent risks of horseback trail riding includes the danger that

a supervising trail guide may unexpectedly provoke horses in his/her group to suddenly jump


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

from a walk to a cantor or gallop without notice to their riders. Such conduct is considered an

integral part of the activity of horseback trail riding and an inherent risk, to which the stable

operator is immune from liability (See Cohen, supra 1499).

Plaintiff’s complaint is devoid of any allegations of intentional or reckless behavior by

defendant and/or her agents or trail guides. 500 Restatement Second of Torts, comment g makes

clear that under the doctrine of assumption of risk, allegations of recklessness and/or intentional

misconduct is essential to liability in cases involving activities of inherent risk. It states:

“Negligence and recklessness conduct. Reckless misconduct differs from

negligence in several important particulars. It differs from that form of

negligence which consists in mere inadvertence, incompetence,

unskillfulness, or a failure to take precautions. The reckless misconduct

requires a conscious choice of a course of action, either with knowledge of

the serious danger to others involved in it or with knowledge of facts

which would disclose this danger to any reasonable man.”

For plaintiff to overcome the “doctrine of assumption of risk,” he must plead factual

allegations demonstrating “intentional and/or reckless” behavior on the part of the stable owner,

her agents, trail guides, etc. Reckless means, “totally outside the range of the ordinary” (Kahn,

supra 996; Shelly v. Stepp, 62 Cal. App. 4th 1288). The absence of proof of reckless or

intentional conduct on behalf of defendant, the doctrine of assumption of risk applies. Mere

speculations, conclusions and assumptions do not overcome the doctrine of assumption of risk.

Therefore, defendant owed no duty to the plaintiff; ergo, no cause of action state in plaintiff’s

First Amended Complaint.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4. PLAINTIFF IS BARRED FROM BRINGING A CLAIM AGAINST DEFENDANT

BY HIS RELEASE OF ALL CLAIMS AGAINST DEFENDANT BY EXPRESS

WAIVER AND RELEASE

Plaintiff WEISBERG signed a waiver and release acknowledging certain inherent risks.

The Waiver and Release signed by plaintiff in this matter specifically identified the risks

inherent to trail guide horse back riding, including but not limited to “horses can trot or canter

without reason.” As Cohen stated, “It is only necessary that the act of negligence, which results

in injury to the releaser, be reasonably related to the object or purpose for which the release is

given.” (1485).

Cohen clearly states that the risks of injury inherent in trail riding does include the danger

that a trail guide may unexpectedly cause a horse to suddenly jump from a walk to a cantor or

gallop without notice to the riders. Such conduct is considered an integral part of the activity of

horseback trail riding (See Cohen, supra 1499). Therefore, such risks are inexplicably

interwoven with trail guide horse back riding.

Moreover, it is well established by statutory and case law that a release that forthrightly

makes clear to a person that he/she is releasing all claims arising out of the activity for any

negligence stemming from that particular act or activity to bring a claim against that party. (Levy

et al., Cal. Torts (2007) Ch. 4; 4 Witkin, Cal. Procedure 4th Ed. Pleading 381).

In the instant case, the scope of the release contains express terms that are applicable to

the particular negligence alleged by plaintiff. Such, Waiver and Release is sufficient to release

defendant CORNIELLE from any negligence claim arising out of the activity of horseback

riding. Similarly in Cohen, supra 1476 the court stated:

“When a release expressly releases the defendant from any liability, it is

not necessary that the plaintiff have had a specific knowledge of the

particular risk that ultimately caused the injury. If a release of all liability

is given, the release applies to any negligence of the defendant. It is only


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

necessary that the act of negligence, which results in injury to the releaser,

be reasonably related to the object or purpose for which the release is

given.”

In the instant case, the release and waiver signed by plaintiff was specific to the inclusion

of the type of negligence he is alleging in his First Amended Complaint. Therefore, plaintiff is

barred from bringing an action against defendant CORNIELLE.

5. PLAINTIFF CAN NOT DISGUISE A PREMISES LIABILITY CAUSE OF

ACTION TO OVERCOME THE BURDEN OF THE INHERENT RISK

DOCTRINE

Plaintiff’s First Amended Complaint makes a veiled attempt at co-mingling an allegation

for “premises liability” with negligence in a veiled attempt at overcoming the assumption of

risk. Plaintiff’s complaint states,

“Knowing that there are inherent risks in horseback riding and that the

riders could be injured by reason of such inherent risks, Defendant

Cornielle had a duty to ensure that emergency medical access to her

customers, such as plaintiff, was not impeded by her action or inaction. In

breach of that duty, Defendant Cornielle failed to have in place a method

or means by Plaintiff’s trail guide could reach Defendant Cornielle or to

call 911 from the trail. Further, Defendant Cornielle knew that vehicular

access to the dirt trail that defendants used for tours were blocked by a

locked, heavy chain across the road, and that she was entitled to have the

combination so that the chain could be removed; however, Defendant

Cornielle had failed to obtain the combination.”


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Again, speculation, assumption and conclusion. The trail used by defendant Cornielle for

horseback riding tours is called “Summit to Summit Motorway” (see Thomas Guide pg. 589,

grid 61) and is owned and maintained by the County of Los Angeles. The trail is a County

maintained trail that is used by hikers, bikers, horse back riding, etc. However, the motorway is

not accessible to civilian vehicles. Only vehicles that have access to Summit to Summit

Motorway are Los Angeles County Fire Department, Los Angeles County Sheriff’s Department

and other Los Angeles County vehicles. Therefore, the County of Los Angeles placed two big

posts secured by a big metal chain and padlock to protect against unauthorized vehicles entering

motorway. Contrary to plaintiff’s contention, there is no “combination lock” on the chain, and if

there were, defendant CORNIELLE is not employed by the County of Los Angeles and would

not have the combination or key to the lock that was placed there by the County of Los Angeles.

Moreover, plaintiff’s allegations that CORNIELLE “breached a duty, by failing to have

in place a method or means by to call 911” has no merit. Each trail is equipped with cellular

phone, as well as, a two-way radio in case of emergencies such as this. This evidence by the

fact that 911 was called immediately and the Los Angeles Fire Department and Paramedics

arrived on the scene through Summit to Summit Motorway by unlocking the chain. In any event, defendant CORNIELLE does not own or maintain the property where

plaintiff was injured; and therefore, she owes plaintiff no duty to maintain the property.

A. A Defendant Who Lacks Ownership, Possession or Control Over The Subject

Premises Does Not Owe A Duty To Prevent A Plaintiff’s Injuries On the Premises

In Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, the Court Stated:

“In premises liability cases, summary judgment properly may be

granted where a defendant unequivocally establishes it lack of

ownership, possession or control of property alleged to be in a

dangerous or defective condition. [citation] This follows from the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

rule that the duty to take affirmative action for the protection of

individuals coming on to one’s property is “grounded in the

possession of the premises and the attendant right to control and

manage the premises.” [citation] Without the ‘crucial element’ of

control over the subject premises [citation], no duty to exercise

reasonable care to prevent injury on such property can be found.

[citation]”

For Defendant CORNIELLE to owe a duty to plaintiff, she must have the opportunity

and ability to eliminate the dangerous condition alleged by plaintiff. (See Rosales v. Stewart

(1980) 113 Cal.App.3d 130, 134). Therefore, Defendant CORNIELLE can not be held liable for

injuries sustained by plaintiff from conditions over which she had no control.

5. CONCLUSION

Based upon the aforementioned fact, statutory and case law, the court is respectfully

requested to sustain this demurrer to plaintiff’s First Amended Complaint without leave to

amend.

Dated: October 23, 2008IN PRO PER

ByCARMEN CORNIELLE

Defendant

Superior Court – Central Los Angeles PROOF OF SERVICE

I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 36280 Lamancha Court, Palmdale, CA 93550

On date set forth below, I served the foregoing document(s) described as DEMURRER TO FIRST AMENDED COMPLAINT to the parties in this action

[ ] by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below, or as stated on the attached service list, on this date before 5:00 pm. [X] by placing the true copies thereof enclosed in sealed envelopes addressed as followed or as stated on the attached mailing list:

Jay Plotkin, Esq.15060 Ventura Blvd., Ste. 490Sherman Oaks, CA 91403

[X] BY MAIL[ ] I deposited such envelope in the mail at Palmdale, California. The envelope was mailed with postage thereon fully prepaid. [X] As follows: I am "readily familiar" with the firm's practice of collection and processing

correspondence for mailing. Under that practice, it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Palmdale, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

[ ] BY FAXI caused the documents described above to be faxed on the interested parties in this action pursuant to CRC Rule 2008 (b) and CCP §1013(e). The facsimile machine I used complied with CRC Rule 2003(3). The telephone number of the sending facsimile machine was (818) 956-4388. The transmission was properly issued by the transmitting facsimile machine, and the transmission was reported as complete and without error.

[X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [ ] (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.

Executed on October 30, 2008 at Palmdale, California.

Bruce HadleyType or Print Name Signature

Documents

Demurrer