Lucas v. Roberts

AGEE, J.

Plaintiffs appeal from the judgment entered upon the sustaining of defendants’ general demurrer to each of the two causes of action alleged against defendants in their complaint. Plaintiffs had been granted leave to amend but elected not to do so and the judgment followed.

The complaint alleges that defendants owned and possessed a residence located in Hayward, California; that on November 28, 1958, plaintiff Rae Marie Lucas, while a guest therein, was severely burned; that plaintiff Ray Anthony Lucas is the guardian

ad litem

of Rae Marie Lucas, a minor; that plaintiffs were required to and did incur expenses for medical and hospital care and treatment for said burns. The charging allegations against defendants will be related hereafter.

Where, as here, plaintiffs elect not to amend their complaint after leave to do so is granted, it must be presumed that they have stated as strong a case as could be stated in their favor and no facts necessary to plead a cause of action can be deemed to have existed unless actually pleaded.

(Melikian

v.

Truck Ins. Exchange,

133 Cal.App.2d 113, 115 [283 P.2d 269];

Frace

v.

Long Beach, etc., School Dist.,

58 Cal.App.2d 566, 568 [137 P.2d 60]; 2 Witkin, California Procedure, pp. 1191-1193.)

[367]

For example, we cannot assume that plaintiff Rae Marie Lucas is of any particular age except that, the complaint having referred to her as a “minor” and having alleged that a guardian

ad litem

was appointed for her in November, 1959, she must have been under the age of 21 years at the time of such appointment.

The first count alleges that defendants “. . . so carelessly and negligently maintained, operated and controlled their said premises, as to leave in an obvious location, where the same would attract the attention of, and be available to, minor children upon the premises, highly inflammable materials, to-wit, matches; . . . [b] y reason of their careless and negligent