Judge: Daniel M. Crowley, Case: 22STCV12948, Date: 2022-08-16 Tentative Ruling

Case Number: 22STCV12948    Hearing Date: August 16, 2022    Dept: 28

Defendant Los Angeles County Metropolitan Transporation Authority’s Demurrer with Motion to Strike

Having considered the moving papers, the Court rules as follows. 

BACKGROUND

On April 18, 2022, Plaintiff Maria Salud Zepeda-Pedrizco (“Plaintiff”) filed this action against Defendants Los Angeles County Metropolitan Transporation Authority (“Metro”) and City of Los Angeles (“City”) for negligence and common carrier liability.

On May 31, 2022, Plaintiff filed the FAC.

On July 1, 2022, Metro filed a Demurrer with Motion to Strike to be heard on August 17, 2022.

Trial is scheduled for February 8, 2023.

PARTY’S REQUESTS

Metro requests the Court sustain the demurrer to the second cause of action for common carrier liability on the basis that there are insufficient facts to constitute a cause of action.

Metro also requests the Court strike ¶ 13, references to Civil Code § 2101, and requests for pre-trial interest, prejudgment interest and attorney's fees.

LEGAL STANDARD

CCP § 430.10 states: “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: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (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 ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

Following the sustaining of a demurrer, with leave to amend, Plaintiff is only allowed to amend the cause of action in the pleading to which the demurrer was sustained; the Plaintiff must obtain permission to add a new cause of action in an amended pleading. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.)

“Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employee or any other person.” (Gov. Code § 815.) A public entity’s direct liability must be statutorily based, not based on common law. (Gov. Code § 815; Munoz v. City of Palmdale (1999) 75 Cal.App.4th 367, 369- 370.)

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).”  (CCP § 435(b)(1).)  “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.”  (CRC 3.1322(b), italic added.)  “The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.”  (CCP § 471.5(a).)

Government Code § 815.6 provides: “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” To impose a mandatory duty on a public entity, the “mandatory nature of the duty must be phrased in explicit and forceful language;” it is not sufficient to contain just some mandatory language. (Guzman v. County of Monterey (2009) 46 Cal. 4th 887, 910-911.)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (CCP § 437(a).)  The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.”  (Ivanoff, supra, 9 Cal.App.5th p. 725.)  The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.”  (Id.)  “The court does not, however, assume the truth of contentions, deductions or conclusions of law.  [Citation.]”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Code of Civil Procedure § 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time at its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or any order of the court.”

DISCUSSION

Demurrer

Plaintiff’s FAC provides while Plaintiff was a passenger on Metro’s blue line, the train driver accelerated rapidly without providing proper time for passengers to secure themselves. As such, Plaintiff was thrown by the abrupt movement. The second cause of action specifically alleges that Metro was engaged in business as a common carrier, and thus subject to California Civil Code §2100 and §2102.

Metro argues that under GC §815.6, CC §2100 and §2102 do not apply to this action. GC §815.6 requires an explicit, mandatory duty intended to protect against the kind of injury suffered and that breach of said duty caused the injury suffered. CC §2100 merely provides a general statement that a carrier must use care and diligence, utilizing a reasonable degree of skill. There is no particular explicit duty or action in CC §2100 or §2102 that provides a basis for governmental liability. As such, the Court sustains the demurrer.

Motion to Strike

Metro requests the Court strike a portion of ¶13, which asserts that the DOE defendant’s employers were responsible for acts done in the scope of DOE’s employment. Metro requests that this be stricken on the basis it does not provide any facts to support this statement—furthermore, Metro asserts that neither Metro nor the City constitute a “corporate or business defendant,” which is the focus of the paragraph. The Court agrees; thus, this paragraph is irrelevant to Metro and the City, more likely included in case DOE defendants are later added. The Court sees no need to strike a paragraph not intended to incorporate Metro nor the City.

¶35 is a portion of the second cause of action, to which the Court has sustained the demurrer—thus, the motion is moot as to this point.

Metro requests the Court strike the request for prejudgment interest, arguing that CC §3291, which provides a basis for interest on damages, does not apply to public entities. However, the Court notes that under §3287, which specifically address prejudgment interests, includes “any city...or public agency.” As such, the Court will not strike the request for prejudgment interest.

Metro states that Plaintiff has not provided any statute or law that would give rise to attorneys’ fees. The Court agrees and orders this section stricken.

CONCLUSION

Defendant Los Angeles County Metropolitan Transporation Authority’s Demurrer is SUSTAINED, with 30 days leave to amend. Defendant Los Angeles County Metropolitan Transporation Authority’s Motion to Strike is GRANTED, in part, with 30 days leave to amend. The Court strikes the request for attorneys’ fees. The Court DENIES the motion as to the rest of the requests.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.