Judge: Daniel M. Crowley, Case: 22STCV19678, Date: 2022-10-14 Tentative Ruling
Case Number: 22STCV19678 Hearing Date: October 14, 2022 Dept: 28
Defendant County of Los Angeles’s Demurrer with Motion to Strike
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On June 16, 2022, Plaintiff Catalina Alvarez (“Plaintiff”) filed this action against Defendant County of Los Angeles (“Defendant”) for negligence sounding in wrongful death, wrongful death sounding in negligent supervision, negligent hiring and retention sounding in wrongful death, and negligence (breach of mandatory duty).
On July 29, 2022, Defendant filed a Demurrer with Motion to Strike to be heard on September 20, 2022. On September 13, 2022, Defendant filed a reply. The Court continued the hearing on the motion to October 14, 2022, so that Plaintiff could file their opposition to the demurrer; Plaintiff filed the opposition on September 20, 2022.
Trial is scheduled for December 14, 2023.
PARTY’S REQUESTS
Defendant requests the Court sustain the demurrer as the first cause of action as it is duplicative, and the second and third causes of action for failure to state facts sufficient to constitute causes of action.
Defendant also requests the Court strike the request for attorney’s fees as allowed by law.
Plaintiff requests the Court overrule the demurrer. Plaintiff did not oppose the motion to strike.
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 complaint alleges that Decedent child was murdered by his stepmother after multiple calls were made to the Department of Child and Family Services regarding Decedent’s welfare. Plaintiff alleges that DCFS failed to adequately and properly investigate this call(s) and left Decedent in an abusive home situation, eventually resulting in his death.
Defendant argues that the first cause of action is duplicative with the second, third and fourth causes of action; the Court agrees. The first cause of action, negligence sounding in wrongful death, focuses on the failure of Defendant to respond to this phone call and lists a collection of duties of care that were violated. These duties of care are subsequently addressed in the remaining causes of action—for example, the failure to interview children over four, is listed both in the first and fourth causes of action.
Defendant argues the Second and Third causes do not have a statutory basis, as is required by GC § 815.6 to bring claims against a government organization or agency. In reviewing the complaint, the Court find that neither cause of action cites specific statutes to support these causes of action.
Plaintiff argues that the first through third causes of action are distinct from the fourth because the fourth cause of action requires Plaintiff show that “Defendants violated specific statutes and regulations that are applicable to Defendant...” and that specific duties are absent from the other causes of action. As discussed above, this does not solve the problems warranting the demurrer. A cause of action against a public entity must be based in statute under GC §815.6. Meaning that only a cause of action that specifically cites to a statutory duty withstands demurrer. The first through third causes of action do not rely on specific statutory duties, but rather common law duties. The Court sustains the demurrer.
Motion to Strike
Defendant requests the Court strike requests for attorney’s fees. Plaintiff has provided no contractual or statutory basis for attorney’s fees within the complaint. As such, the Court will strike the request.
CONCLUSION
Defendant County of Los Angeles’s Demurrer is SUSTAINED, with 30 days leave to amend.
Defendant County of Los Angeles’s Motion to Strike is GRANTED, with 30 days leave.
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.