United States District Court, N.D. California
ORDER RE DEFENDANT'S MOTION TO DISMISS RE: DKT.
NOS. 8, 37
JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE
filed this personal injury action against Defendant JP Morgan
Chase Bank, N.A., in the Superior Court for the County of San
Francisco and it was later removed to this Court based on
diversity jurisdiction. Defendant's Motion to Dismiss is
now pending before the Court. (Dkt. No. 7.) After carefully
considering the arguments and briefing submitted, the Court
concludes that oral argument is unnecessary, see
Civ. L.R. 7-1(b), and GRANTS the motion to dismiss with leave
to amend. As currently pled, Plaintiff fails to state a claim
for negligence, premises liability, or product liability.
alleges that her finger was seriously injured when using an
ATM machine at the Chase Bank branch at 500 Van Ness Ave.,
San Francisco, California on June 20, 2016. (Complaint (Dkt.
No. 1-1) at 5.) As a result of her injury, Plaintiff
suffered impairment of her right hand as well as hospital and
medical expenses. (Id.)
subsequently filed this personal injury action against
Defendant JP Morgan Chase Bank, N.A., in the Superior Court
for the County of San Francisco. (Dkt. No. 1-1.) Her
complaint alleges claims for (1) general negligence, (2)
products liability, and (3) premises liability. (Id.
at 5.) Defendant removed the action to this Court based on
diversity jurisdiction under 28 U.S.C. § 1332. (Dkt. No.
1.) Defendant then moved to dismiss the complaint for failure
to state a claim under Federal Rule of Civil Procedure
12(b)(6). (Dkt. No. 7.) After Plaintiff failed to respond to
the motion to dismiss and an order to show cause regarding
the same, the Court dismissed the action for failure to
prosecute. (Dkt. No. 14.) Shortly thereafter, Plaintiff filed
a motion to reopen the action based on excusable neglect
which the Court granted. (Dkt. Nos. 15, 19.) Plaintiff also
filed an opposition to the motion to dismiss. (Dkt. No. 20.)
based its removal on diversity jurisdiction under 28 U.S.C.
§ 1332. To properly allege diversity jurisdiction, a
plaintiff must claim damages in excess of $75, 000 and each
defendant must be a citizen of a different state from each
plaintiff. See 28 U.S.C. § 1332; Diaz v.
Davis (In re Digimarc Corp. Derivative Litig.), 549 F.3d
1223, 1234 (9th Cir. 2008). Here, the amount in controversy
exceeds $75, 000 because Plaintiff pleads damages in the
amount of $250, 000. (Dkt. No. 1-1 at 5.) The diversity of
citizenship requirement is likewise satisfied because
Plaintiff is a resident of California and Defendant is a
citizen of Ohio where its main office is located. (Dkt. No. 1
at ¶ 7.)
moves to dismiss the complaint for failure to state a claim
upon which relief can be granted.
Negligence and Premises Liability
elements of a negligence and premises liability claim are the
same: “a legal duty of care, breach of that duty, and
proximate cause resulting in injury.” Kesner v.
Superior Court, 1 Cal. 5th 1132, 1158 (2016).
“Premises liability is grounded in the possession of
the premises and the attendant right to control and manage
the premises; accordingly, mere possession with its attendant
right to control conditions on the premises is a sufficient
basis for the imposition of an affirmative duty to
act.” Id. (internal citation and quotation
marks omitted). While the allegations of Plaintiff's
complaint fail to plead the elements of a negligence claim or
a premises liability claim, Plaintiff's opposition to the
motion to dismiss and the declaration submitted therewith
demonstrate that she can plead the necessarily elements of
these claims; namely, that she was injured using an ATM
machine at the Chase Bank at 500 McAllister Street in San
Francisco because the machine was poorly
maintained. Plaintiff is granted leave to amend her
complaint to include these allegations.
plaintiff may seek recovery in a products liability case
either on the theory of strict liability in tort or on the
theory of negligence. See Merrill v. Navegar, Inc.,
26 Cal.4th 465, 478 (2001). A manufacturer is strictly liable
in tort when an article he places on the market, knowing that
it is to be used without inspection for defects, proves to
have a defect that causes injury to a person. See
Anderson v. Owens-Corning Fiberglas Corp., 53 Cal.3d
987, 994 (1991). California recognizes three types of product
defects under a strict liability theory-manufacturing
defects, design defects, and warning defects (inadequate
warnings or failure to warn). Id. at 995.
prevail on a negligence products liability claim, a plaintiff
must show that the defendant owed her a legal duty, that the
defendant breached the duty, and that the breach was a
proximate or legal cause of his injuries. Merrill,
26 Cal.4th at 477. Under a negligence theory, as opposed to
strict liability in tort, the plaintiff must prove the
additional element “that the defect in the product was
due to negligence of the defendant.” Id. at
479; see also Id. at 485 (“‘[S]trict
products liability differs from negligence in one key
respect: it obviates the need ...