Generally, be specific when pleading your case

To plead or not to plead, that is the question. Although Code of Civil Procedure Section 425.10 requires that a complaint contain a “statement of the facts constituting the cause of action in ordinary and concise language,” it is common for negligence causes of action in personal injury cases to set forth nothing more than boilerplate and conclusory language, containing minimal information regarding the facts giving rise to the action. The failure to plead in sufficient detail can result in the granting of summary judgment.

Liberal Pleading Standard

As far back as 1894, the California Supreme Court recognized that negligence causes of action may be stated “in general terms, without stating the facts constituting such negligence.” Stephenson v. Southern Pacific Co., 102 Cal. 143, 147 (1894). The Supreme Court later placed some limitation on generality with which a cause of action for negligence can be pleaded, recognizing that “while negligence may be pleaded in general terms, the plaintiff must indicate the acts or omissions which are said to have been negligently performed.” Guilliams v. Hollywood Hospital, 18 Cal. 2d 97, 101 (1941).

The Jacobs Case

While an overly general complaint can draw a demurrer, it can also lead to the far more serious consequence of summary judgment being granted on an unpleaded theory of liability.

In Jacobs v. Coldwell Banker Residential Brokerage Company, 2017 DJDAR 7816 (Aug. 15, 2017), the plaintiff, who was viewing a property as a potential buyer, was injured when he stepped onto a diving board which collapsed, causing him to fall into the empty swimming pool. In his complaint, the plaintiff set forth the general allegations that the landowner negligently “owned, operated, leased, possessed, secured, maintained and controlled said property.” He also set forth the specific theories that the defendant failed to maintain the diving board in a safe condition, remove the diving board, and warn him of the dangerous condition of the diving board.

The defendant moved for summary judgment, refuting liability based on the broken diving board. In opposition, the plaintiff maintained that the defendant failed to refute the theory that the empty swimming pool constituted a dangerous condition. However, recognizing the principle that the pleadings frame the issues to be resolved on summary judgment and that a party cannot oppose summary judgment on an unpleaded theory, the Court of Appeal held that the defendant did not have to refute the empty pool theory of liability and the plaintiff could not defeat summary judgment by raising a triable issue of fact as to this theory.

Significantly, the complaint was not completely devoid of language which, if read broadly, could be deemed to encompass a theory of liability based on the empty swimming pool. The plaintiff alleged that the defendant “fail[ed] to take measures to make the area where Plaintiff fell reasonably safe” and that the diving board breaking caused the plaintiff “to fall into a nearby empty pool.” (Emphasis added.) Thus, the plaintiff made a general reference to the “area” being unsafe and a specific reference to the empty swimming pool. However, the appellate court held that this was not enough to put the empty pool theory at issue in the case.

Reading the allegations as a whole, the court concluded that the complaint did not place the defendant on notice that the plaintiff was claiming negligence with regard to the empty swimming pool: “Here, a fair reading of the complaint’s allegations does not suggest a negligence claim based on the condition of the empty pool as opposed to the condition of the diving board. A defendant (or a court) reading the complaint would not reasonably anticipate such a claim.”

Lessons Learned

The obvious lesson to be learned from the Jacobs case is that care must be taken in pleading each theory of liability a plaintiff wants to pursue. However, the less obvious lesson is the risk that arises from overly specific pleading. One wonders whether the court would have reached the same result had the plaintiff merely alleged that the “area” was unsafe and that he was injured when he fell from a broken diving board into an empty pool. Having very specifically identified his theory of negligence as having been the broken diving board, the plaintiff was precluded from opposing summary judgment on the related theory that the empty swimming pool constituted a dangerous condition. A more general and less factually specific complaint might avoid the risk of issue preclusion that occurred in this case.

Finally, it should be noted that the scope of the issues at play in a summary judgment motion is not limited to the facts and theories asserted in the complaint, but can also encompass what is set forth in discovery responses. The court in Jacobs pointed out that interrogatory answers are an “adjunct to the pleadings,” and that the fact that the plaintiff did not mention the empty swimming pool in response to the defendant’s contention interrogatories further supported its conclusion that the defendant had not been placed on notice of the empty pool theory. Therefore, parties moving for summary judgment should address not only those facts and theories set forth in the complaint, but also to those set forth in discovery responses.