Judge: Anne Hwang, Case: 23STCV16555, Date: 2024-03-11 Tentative Ruling

Case Number: 23STCV16555    Hearing Date: April 10, 2024    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 July 17, 2023, Plaintiff Jameelah Budhan (Plaintiff) filed a form complaint for negligence against Defendant City of West Hollywood (Defendant) based on a motor vehicle accident. Plaintiff alleges the incident took place on July 24, 2022.

On March 12, 2024, the Court granted Plaintiff’s former counsel’s motion to be relieved.

Defendant now demurs to the second cause of action in Plaintiff’s complaint, for general negligence. No opposition was filed.

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.)

Additionally, courts can sustain a demurrer where one cause of action is duplicative of another and adds nothing to the complaint by way of fact or theory of recovery. (See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

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).)

Defendant’s counsel, David M. Ferrante-Alan, submits a declaration that he sent a meet and confer correspondence to Plaintiff’s last known address as indicated on the Plaintiff’s counsel motion to be relieved. No response was received. (Ferrante-Alan Decl. ¶ 3.) Therefore, the meet and confer requirement is satisfied.

ANALYSIS

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Consequently, “public entities may be liable only if a statute declares them to be liable.”  (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 (emphasis in the original). It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.)   

Moreover, to state a cause of action [for government tort liability] every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.”  (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)  

 As an initial matter, the Court on its own motion takes judicial notice that Defendant is a public entity as defined by the California Government Code.  (Gov. Code § 811.2 [“’Public entity includes . . . a county city, district, public authority, public agency, and any other political subdivision or public corporation in the State.”].)

            Here, Defendant argues the second cause of action is duplicative of the first cause of action for motor vehicle liability and asserts a non-statutory cause of action for general negligence.

Plaintiff’s complaint alleges that on July 24, 2022, Defendant Tasia Dawn Sanchez Dorado collided with his vehicle. Plaintiff alleges that Sanchez was under the scope of employment with the public entity Defendants, and thus they are liable under Government Code section 815.2 and Vehicle Code section 17001. Viewing the complaint, the Court finds that the allegations in the two causes of action are identical. Therefore, since the second cause of action adds no additional facts or a separate theory of recovery, it is duplicative and subject to demurrer. (See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

Plaintiff does not oppose the demurrer and therefore fails to meet his burden to show how the complaint can be amended. However, since the second cause of action is duplicative, the Court does not find that Plaintiff would be prejudiced since the first identical cause of action remains.

Therefore, Defendant’s demurer to the second cause of action in Plaintiff’s complaint is sustained without leave to amend.

CONCLUSION AND ORDER

Therefore, the Court sustains Defendant’s demurrer to Plaintiff’s second cause of action in the complaint without leave to amend.

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