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Denise Johnson et al v. Elks Lodge of Oroville et al

April 24, 2012

DENISE JOHNSON ET AL., PLAINTIFFS AND APPELLANTS,
v.
ELKS LODGE OF OROVILLE ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 142508)

The opinion of the court was delivered by: Hull , J.

Johnson v. Elks Lodge of Oroville

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is an appeal from a judgment of dismissal of plaintiffs' action for damages alleged to have resulted from the shooting death of Kevin Kimble (Kimble) at a bar owned and operated by defendant Elks Lodge of Oroville (the Lodge). Defendant Kevin Jenkins is alleged to have been the Lodge manager and the bartender at the Lodge on the date of the killing.

Defendants Lodge and Jenkins demurred to those causes of action alleged against them in the fourth amended complaint. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal. Plaintiffs appeal. We affirm the judgment.

DISCUSSION

I

Legal Principles

"On appeal from the [sustaining] of a demurrer, 'we independently review the complaint to determine whether the facts alleged state a cause of action under any possible legal theory.' [Citation.] We will affirm 'if proper on any grounds stated in the demurrer, whether or not the court acted on that ground.' [Citation.] On appeal, 'the plaintiff bears the burden of demonstrating that the trial court erred' in sustaining the demurrer. [Citation.]" (Melton v. Boustred (2010) 183 Cal.App.4th 521, 528 (Melton).)

"'In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law."' [Citations.] Further, 'we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' [Citation.] 'If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.' [Citation.]" (Melton, supra, 183 Cal.App.4th at pp. 528-529.)

"'If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment.' [Citation.] 'The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citation.] 'As a general rule, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.' [Citation.] 'Nevertheless, where the nature of the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result.' [Citation.]" (Melton, supra, 183 Cal.App.4th at p. 529.)

II

The Fourth Amended Complaint

As they pertain to these defendants, the "well-pleaded" facts set forth in the Fourth Amended Complaint are as follows:

The Lodge owned and operated a bar in Oroville, California. Jenkins was "the bartender and managed and operated the bar." Jenkins was an ...


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