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CARMEN CORNIELLE In Pro Per

2623 Old Topanga Canyon Road
Topanga, CA 90290
Telephone No. (818) 591-1916
DEFENDANT

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

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NOAH WEISBERG, an individual,

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Plaintiff,
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vs.
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CARMEN ROSE CORNIELLE; and DOES 1 )
through 10, inclusive,
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Defendants.
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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: 11/20/2008
Time: 8:30 A.M.
Dept.: N

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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 Plaintiffs First Amended Complaint.

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

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.

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Dated: October 23, 2008

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IN PRO PER

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By

CARMEN CORNIELLE
Defendant

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

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DEMURRER TO THE FIRST AMENDED COMPLAINT

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Defendant, CARMEN CORNIELLE, hereby demurs to the First Amended

Complaint herein on each of the following grounds:
1.

Plaintiffs First Amended Complaint fails to state facts sufficient to constitute a

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

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WHEREFORE, this demurring defendant respectfully requests:

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

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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 Declarants opinion the Demurrer is well taken and should be granted.

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Dated: October 23, 2008

IN PRO PER
By

CARMEN CORNIELLE
Defendant

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

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MEMORANDUM OF POINTS AND AUTHORITIES

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1.

STATEMENT OF FACTS

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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

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

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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.

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

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

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

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

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

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minutes apart.

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

The trail ride is approximately 1 miles with the mid-point being 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 plaintiffs amended complaint as the

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

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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

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

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

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

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anything extra ordinary that caused or lead to the trail guides horse to trot off or to cause the

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

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

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2.

DEMURRER TO THE FIRST AMENDED COMPLAINT IS PROPER

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WHEN FIRST AMENDED COMPLAINT DO NOT STATE FACTS

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SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION

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

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

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

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

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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

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ambiguous and unintelligible.

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Code of Civil Procedure, Section 430.10

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3.

ALLEGATIONS

CONTAINING

ASSUMPTIONS,

SPECULATIONS

AND

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CONCLUSIONS ARE NOT SUCFFICIENT TO OVERCOME THE BURDEN OF

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THE DOCTRINE OF ASSUMPTION OF RISK

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Plaintiffs 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.
Plaintiffs First Amended Complaint is littered with assumptions, conclusions and speculation
without any factual bases or support.

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

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

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

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Plaintiffs First Amended Complaint further speculates and makes the assumptions that the

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

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

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

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

is approximately 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

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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.
Plaintiffs First Amended Complaint makes the assumption that the trail guide of group
B dropped his horses reins (Pltf.s 1st Amended Complaint page 3, 11). There has been no
evidence or factual information presented that the trail guide dropped his horses reins.
Plaintiff alleges that the guides failing to secure his horse increased the risk inherent. First of

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

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

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

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

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

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

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

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

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

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horses.

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Again, it is mere speculation on plaintiffs part to assume that the only way to restrain a
horse is to hold its reins. This is simply incorrect.

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

Clearly, the allegations contained in plaintiffs 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

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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 plaintiffs 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:

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Horseback riding is an active sport with inherent dangers, including

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

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

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

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

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

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allegation of reckless or intentionally harmful conduct and cannot be

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

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

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

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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

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

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).

Plaintiffs 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

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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

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

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which would disclose this danger to any reasonable man.

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

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

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

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

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

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

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

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First Amended Complaint.

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

4.

PLAINTIFF IS BARRED FROM BRINGING A CLAIM AGAINST DEFENDANT

BY HIS RELEASE OF ALL CLAIMS AGAINST DEFENDANT BY EXPRESS

WAIVER AND RELEASE

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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

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given. (1485).

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

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

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

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horseback trail riding (See Cohen, supra 1499).

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interwoven with trail guide horse back riding.

Therefore, such risks are inexplicably

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

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

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

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

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

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

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

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

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

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

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

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

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

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.

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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.

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PLAINTIFF CAN NOT DISGUISE A PREMISES LIABILITY CAUSE OF

ACTION TO OVERCOME THE BURDEN OF THE INHERENT RISK
DOCTRINE

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Plaintiffs 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. Plaintiffs 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

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

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

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or means by Plaintiffs trail guide could reach Defendant Cornielle or to

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

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

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

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

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Cornielle had failed to obtain the combination.

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

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

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Motorway are Los Angeles County Fire Department, Los Angeles County Sheriffs 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 plaintiffs 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, plaintiffs allegations that CORNIELLE breached a duty, by failing to have

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

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

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

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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

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

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In premises liability cases, summary judgment properly may be

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granted where a defendant unequivocally establishes it lack of

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

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

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

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

individuals coming on to ones 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]

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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.

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5.

CONCLUSION

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

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requested to sustain this demurrer to plaintiffs First Amended Complaint without leave to

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amend.

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Dated: October 23, 2008

IN PRO PER

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By

CARMEN CORNIELLE
Defendant

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DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

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. 490
Sherman 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 FAX
I 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) 9564388. 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 Hadley
Type or Print Name

Signature