Judge: Anne Hwang, Case: 23STCV13072, Date: 2023-10-24 Tentative Ruling

Case Number: 23STCV13072    Hearing Date: October 24, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

On June 8, 2023, Plaintiff Lizzie Johnson (Plaintiff), in pro per, filed a complaint against the Los Angeles County Metropolitan Transportation Authority (LACMTA) for premises liability.

LACMTA now demurs to the complaint because it is uncertain and fails to state facts that Plaintiff complied with Government Code sections 905 and 945.5.

LEGAL STANDARD

The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered.  (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) 

MEET AND CONFER

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Counsel for LACMTA declares that she met and conferred with Plaintiff about the deficiencies in the Complaint on August 4, 2023. (Paulick Decl. ¶ 6.) Therefore, the meet and confer requirement has been satisfied.

JUDICIAL NOTICE

LACMTA requests the Court take judicial notice of Exhibit A, the Declaration of George Roqueni, its custodian of records, pursuant to Evidence Code section 452(c) and (h).

Evidence Code section 452(c) allows the Court to take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” Section 452(h) allows the Court to take judicial notice of “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

When a court takes judicial notice under 452(c) of official acts, it does not require the court to accept as true the matters within. (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134.)  Because a demurrer is not an appropriate mechanism for determining the truth of disputed facts, judicially noticed matters “will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Id.) Cruz involved a lawsuit against a county. The county demurred on the basis that plaintiff filed their lawsuit over six months after receiving a rejection of their claim. (Id. at 1133.) The Court found there was a dispute of fact since plaintiff disputed the rejection notice had been received. (Id. at 1134.) Therefore, it was improper to sustain a demurrer based on judicially noticed testimony that the county had a customary practice of sending rejection letters. (Id.)

Here, LACMTA argues the declaration of Roqueni is not subject to a dispute because Plaintiff cannot provide proof that she filed a claim. However, the Court finds there is a dispute because Plaintiff checked item 9a on the Complaint stating that she complied with the applicable claims statutes. Accordingly, the Court does not take judicial notice of the truth of the facts within the declaration.

ANALYSIS

Because the Court does not take judicial notice of the declaration, it does not reach Defendant’s argument that the demurrer should be sustained due to a failure to file a claim.

LACMTA additionally argues that Plaintiff fails to state facts to constitute a cause of action. The Court agrees. Plaintiff checked item 10 on the complaint: “premises liability.” The elements of a cause of action for negligence and premises liability are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142; McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Therefore, to prevail on a claim for premises liability, Plaintiff must allege facts that: (1) LACMTA owned or controlled the subject property; (2) LACMTA was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) LACMTA’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

            Here, no facts, including any ultimate facts, are alleged in the complaint. Therefore, the Court sustains LACMTA’s demurrer.

CONCLUSION AND ORDER

The Court sustains LACMTA’s demurrer to Plaintiff’s complaint with leave to amend. Any amended complaint must be filed and served within 30 days.

Defendant LACMTA shall provide notice of the Court’s ruling and file a proof of service of such.