Judge Daniel M. Crowley, Case Number: 24STCV04687, Date: 2024-06-05 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter. If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SMCDept71@LACourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.

If you elect to argue your matter, you are urged to do so remotely, via Court-Connect. If the moving party fails to appear and/or submit to the Court’s tentative ruling, the Court will take the matter off calendar.

Moving Defendant Los Angeles Unified School District’s unopposed demurrer to Plaintiff Estenfer Emmanuel Velasquez’s complaint is sustained with 20 days leave to amend as to the 1st, 2nd, and 3rd causes of action.

Moving Defendant Los Angeles Unified School District’s motion to strike is denied as moot.

Defendant Los Angeles Unified School District (“LAUSD”) (“Moving Defendant”) demurs unopposed to each of the causes of action in Plaintiff Estenfer Emmanuel Velasquez’s (“Velasquez”) (“Plaintiffs”) complaint (“Complaint”) on the grounds that the Complaint and each of the stated causes of action fail to state facts sufficient to constitute a cause of action against Moving Defendant and each is uncertain. (Notice of Demurrer, pg. 2; C.C.P. §§430.10, et seq.) Moving Defendant also moves to strike portions of the Complaint. (Notice of MTS, pg. 2; C.C.P. §§435, 436.)

Plaintiff filed his operative Complaint on February 26, 2024, against Moving Defendant and Non-Moving Defendant B. Bird (“Bird”) (collectively, “Defendants”), alleging three causes of action.

This action arises out of a motor vehicle accident that allegedly occurred on or about February 22, 2023, wherein Bird was driving motor vehicle registered to Moving Defendant near the address of 668 S. Hoover Street in the City of Los Angeles, County of Los Angeles, State of California. (Complaint ¶14.) Plaintiff alleges at that time and place, Bird, while acting within the course and scope of his employment with and for Moving Defendant, negligently and carelessly operated the motor vehicle that was owned by, maintained by, and entrusted to him by Moving Defendant so as to cause the vehicle he was driving to collide with the vehicle the Plaintiff was in, parked in front of 668 S. Hoover Street, Los Angeles, California 90005, thereby causing damage to the plaintiff’s person and property. (Complaint ¶15.)

Moving Defendant filed the instant demurrer and accompanying motion to strike on April 25, 2024. As of the date of this hearing no opposition has been filed.

Moving Defendant demurs to Plaintiff’s 1st, 2nd, and 3rd causes of action on the basis each fails to state facts sufficient to constitute a cause of action against Moving Defendant and is uncertain. (Demurrer, pg. 3; C.C.P. §§430.10(e), (f).)

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference 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. (C.C.P. §430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Moving Defendant’s counsel declares that on April 17, 2024, at 8:05 a.m., he called Plaintiff in an attempt to meet and confer prior to having to file a Demurrer and Motion to strike, and Plaintiff called him back the same day. (Decl. of Simmen ¶¶10-11.) Moving Defendant’s counsel declares as of the date of this filing, no informal agreement has been reached regarding the Demurrer and motion to strike. (Decl. of Simmen ¶12.) Moving Defendant’s counsel’s declaration meets the requirements of C.C.P. §430.41(a). Accordingly, the Court will consider the instant demurrer.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.

Plaintiff alleges at the times, places, and in the manner as aforesaid, Bird negligently and carelessly drove the motor vehicle entrusted to him by Moving Defendant, while Defendant Bird was acting within the course and scope of his employment with Moving Defendant and Bird thereby negligently and carelessly caused Plaintiff to suffer personal injuries and related damages. (Complaint ¶17.)

Plaintiff alleges at the times, places in the manner as aforesaid, Bird was a public employee and is subject to liability to plaintiff herein to the same extent as a private person, per Government Code §820(a). (Complaint ¶18.)

Plaintiff alleges as a legal result of the foregoing, Bird negligently and carelessly caused Plaintiff to suffer past, present, and future injuries to Plaintiff’s health, strength, and activity, sustaining injury to Plaintiff's’ nervous systems and persons, all of which injuries have caused, and continue to cause, said Plaintiff great mental, physical, and nervous pain and suffering. (Complaint ¶19.) Plaintiff alleges as a result of such injuries, Plaintiff have suffered general, non-economic damages in an amount in excess of the jurisdictional minimum of this Court. (Complaint ¶19.)

Plaintiff alleges as a further legal result of the foregoing, Plaintiff incurred and continue to incur economic losses for necessary hospital, medical and professional care and treatment of the injuries they suffered, and continue to suffer, all to their damages, which will be demonstrated according to proof at the time of trial. (Complaint ¶20.) Plaintiff alleges as a further legal result of the foregoing, Plaintiff incurred, and will incur in the future, lost wages and diminished earning capacity. (Complaint ¶21.)

Plaintiff’s cause of action under Government Code §815.2 fails because, under Government Code §815, a public entity is not liable for injuries unless the liability is specifically imposed by statute. (See Gov’t Code §815(a) [“Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such an injury arises out of an act or omission of the public entity or a public employee or any other person.”].) The Fourth District Court of Appeal further instructs that §815(a) “abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement, public entities may be held liable only if a statute (not including a charter provision, ordinance or regulation) is found declaring them to be liable. . . . There is no liability in the absence of a statute declaring such liability. [Citation.]” (Corona v. State of California (2009) 178 Cal.App.4th 723, 728.)

Because all governmental tort liability is statutory, plaintiffs alleging a breach of a statutory obligation owed by a public entity must identify the statute alleged to have been breached. (Becerra v. County of Santa Cruz (1999) 68 Cal.App.4th 1450, 1458.) Whether the alleged statute creates a mandatory duty is a question of law. (Haggis v. City of Los Angeles (2000) 22 Ca1.4th 490, 499.)

Here, Plaintiff cites to Government Code §815.2, which is not an enactment that provides the requisite mandatory duty that must be pled against a public entity. Further, if Plaintiff’s cause of action is construed as one for negligence, the Tort Claims Act prohibits such an allegation against a public entity and its employees, unless enumerated in an applicable statute. (See Gov’t Code §815(a).)

Accordingly, Moving Defendant’s demurrer to Plaintiff’s 1st cause of action is sustained with 20 days leave to amend.

Government Code §820(a) states, “Except as otherwise provided by statute (including §820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” (Gov’t Code §820.)

Plaintiff alleges at the times, places and in the manner as aforesaid, Bird was Moving Defendant’s employee who was acting within the scope of his employment with and for Moving Defendant. (Complaint ¶23.) Plaintiff alleges Bird negligently and carelessly caused the motor vehicle he was driving, which motor vehicle was entrusted to him, negligently or otherwise, by Moving Defendant. (Complaint ¶23.) Plaintiff alleges as a legal and proximate result of Bird’s negligence, Plaintiff was caused to suffer personal injuries and related damages. (Complaint ¶23.)

Plaintiff alleges as a legal result of the foregoing, Moving Defendant is subject to liability under the doctrine of respondent superior and Government Code §§815.2 and 820 et seq. for the damages Bird caused Plaintiff herein to suffer. (Complaint ¶24.)

Plaintiff cites to Government Code §820, which is not an enactment that provides the requisite mandatory duty that must be pled against a public entity. Further, if Plaintiff’s cause of action is construed as one for negligent entrustment, the Tort Claims Act prohibits such an allegation against a public entity and its employees, unless enumerated in an applicable statute. (See Gov’t Code §815(a).)

Accordingly, Moving Defendant’s demurrer to Plaintiff’s 2nd cause of action is sustained with 20 days leave to amend.

“A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment.” (Vehicle Code §17001.)

Plaintiff alleges at the times, places and in the manner as aforesaid, Bird operated the motor vehicle entrusted to him by Moving Defendant in a manner that was negligent or wrongful and while Bird was acting within the course and scope of his employment with Moving Defendant. (Complaint ¶26.) Plaintiff alleges as a result of Bird’s negligent and/or wrongful acts, as aforesaid, Plaintiff was caused to suffer severe and serious personal injuries and related damages, as aforesaid. (Complaint ¶26.)

Plaintiff cites to Vehicle Code §17001, which is not an enactment that provides the requisite mandatory duty that must be pled against a public entity.

Accordingly, Moving Defendant’s demurrer to Plaintiff’s 3rd cause of action is sustained with 20 days leave to amend.

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

If the complaint contains enough facts to apprise defendant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels . . . does not substantially impair [defendant’s] ability to understand the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 n.2.)

Plaintiff’s causes of action are not so uncertain that Moving Defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury, 14 Cal.App.4th at pg. 616.)

Accordingly, Moving Defendant’s demurrer on the basis of uncertainty is overruled.

Moving Defendant’s unopposed demurrer to Plaintiffs’ Complaint is sustained with 20 days leave to amend as to the 1st, 2nd, and 3rd causes of action.

In light of the Court’s ruling on the demurrer, Moving Defendant’s motion to strike is denied as moot.

Hon. Daniel M. Crowley

Judge of the Superior Court