Judge: David A. Rosen, Case: 19STCV43802, Date: 2023-03-24 Tentative Ruling
Case Number: 19STCV43802 Hearing Date: March 24, 2023 Dept: E
Hearing Date: 03/24/2023 – 10:00am
Case No. 19STCV43802
Trial Date: 10/23/2023
Case Name: ORLANDO PRICE v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION
AUTHORITY, and DOES 1-20
TENTATIVE
RULING ON DEMURRER & MOTION TO STRIKE TO SAC
Moving Party:
Defendant, Los Angeles County Metropolitan Transportation Authority (Metro)
Responding
Party: Plaintiff, Orlando Price
Oppo and reply submitted.
RELIEF REQUESTED
Defendant, Los Angeles County Metropolitan Transportation Authority, filed the
instant demurrer pursuant to CCP §430.10 et seq. on the following grounds:
1.
Plaintiffs First Cause of Action
fails to state facts sufficient to constitute a cause of action against
Defendant, is uncertain, and is duplicative of Plaintiff s Second Cause of Action.
2.
Plaintiff’s second cause of action
fails to state facts sufficient to constitute a cause of action against
Defendant and is uncertain.
3.
Plaintiff’s third cause of action
fails to state facts sufficient to constitute a cause of action against
Defendant and is uncertain.
MEET AND CONFER
A
party filing a demurrer “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 shall meet and confer at least five days before the date
the responsive pleading is due. If the parties are not able to meet and confer
at least five days prior to the date the responsive pleading is due, the
demurring party shall be granted an automatic 30-day extension of time within
which to file a responsive pleading, by filing and serving, on or before the
date on which a demurrer would be due, a declaration stating under penalty of
perjury that a good faith attempt to meet and confer was made and explaining
the reasons why the parties could not meet and confer.” (Code Civ. Proc., §430.41, subd. (a)(2).)
Failure to sufficiently meet and confer is not grounds to overrule or sustain a
demurrer. (Id., §430.41(a)(4).)
Parties
met and conferred but no agreement was reached. (Decl. Ashour ¶6.)
BACKGROUND
This case arises out of an incident wherein
Plaintiff fell down stairs at a Metro train station.
On December 5, 2019,
Plaintiff filed a Complaint alleging two causes of action for negligence and
premises liability.
On May 23, 2022, this
Court granted Plaintiff’s motion for leave to file a first amended complaint.
On January 20, 2023,
this Court heard Defendant’s demurrer to Plaintiff’s FAC. The FAC alleged four
causes of action for negligence, premises liability, violation of disabled
persons act Cal. Civ. Code §53 et seq., and violation of Unruh Act, Cal. Civ.
Code §51 et seq. Defendant demurred to the third and fourth causes of action. Defendant’s
demurrer to the third cause of action for violation of disabled persons act Cal
Civ. Code §53 et seq. was sustained with leave to amend granted and Defendant’s
demurrer to the fourth cause of action for violation of the Unruh Act was sustained
with leave to amend granted.
On January 24, 2023,
Plaintiff filed a SAC alleging causes of action for: (1) Negligence, (2)
Premises Liability, and (3) Violation of Disabled Persons Act, Cal. Civ. Code
§54 et seq. Defendant now demurs to all three causes of action in the SAC.
DEMURRER LEGAL STANDARD
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.) The court “treat[s] the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law ….” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face
of the pleading or via proper judicial notice.
(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters; therefore, it lies only
where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) 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, supra, 147 Cal.App.4th at
747.)
The general rule is that the plaintiff need only
allege ultimate facts, not evidentiary facts.
(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a
matter of pleading … is that his complaint set forth the essential facts of the
case with reasonable precision and with sufficient particularity to acquaint
the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.” (Das v. Bank of
America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of
causes of action, where some valid claim is alleged but “must dispose of an
entire cause of action to be sustained.”
(Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.) “Generally it is an abuse
of discretion to sustain a demurrer without leave to amend if there is any
reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.)
Demurrer – Uncertainty
A special demurrer for
uncertainty, CCP section 430.10(f), is disfavored and will only be sustained
where the pleading is so bad that defendant cannot reasonably respond—i.e.,
cannot reasonably determine what issues must be admitted or denied, or
what counts or claims are directed against him/her. (Khoury
v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)
Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified
under modern discovery procedures.” (Ibid.)
ANALYSIS
First Cause
of Action (Negligence), Second Cause of Action (Premises Liability)
As noted in Miklosy v. Regents of
University of California:
The Government Claims Act (§ 810 et seq.) establishes the
limits of common law liability for public entities, stating: “Except as
otherwise provided by statute: [¶] (a) 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.” (§ 815, subd. (a), italics added.) The Legislative Committee Comment
to section 815 states: “This section 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....” (Legis. Com. com., 32 West's Ann. Gov.Code
(1995), foll. § 815, p. 167, italics added.) Moreover, our own decisions confirm
that section 815 abolishes common law tort liability for public
entities.
(Miklosy v. Regents of University of California (2008)
44 Cal.4th 876, 899.)
Further,
Eastburn states, “The California Tort Claims Act provides that ‘[a]
public entity is not liable for an injury,’ ‘[e]xcept as otherwise provided by
statute.’” (Eastburn v. Regional Fire Protection Authority (2003) 31
Cal.4th 1175, 1179.)
Here,
as pointed out by Defendant, Plaintiff’s SAC as to the first and second causes
of action does not plead any violation of statute or reference a statute that
allows for tort liability against a public entity. Defendant also argues that
Plaintiff cannot allege both negligence and premises liability because the
causes of action are duplicative and add nothing by way of fact or theory of
recovery. Here, the Court will not address the duplicative issue because Plaintiff
did not sufficiently allege a cause of action for either of the first two
causes of action for failing to identify a statutory basis for its two tort
claims.
Further,
while Plaintiff points out that Defendant never previously demurred to the
first two causes of action, Plaintiff presented no authority that Defendant
cannot now demur to those causes of action.
TENTATIVE
RULING
Defendant’s demurrer as to the first
and second causes of action are sustained with 20 days’ leave to amend.
Third
Cause of Action (Violation of Disabled Persons Act, Cal. Civ. Code §54, et seq
Defendant
argues that Plaintiff’s Claim for Damages presented to the public entity did
not provide sufficient notice to Metro because the addition of the new cause of
action, the third cause of action, was added to the SAC and it wasn’t mentioned
in the Claim for Damages and thus the SAC alleges facts and theories of
liability materially different that the allegations set forth in the Claim for
Damages in violation of Fall River.
As
a preliminary matter, Defendant’s citation to Shirk v. Vista Unified School
District (2007) 42 Cal.4th 201, 213 is not on point and has nothing to do
with the issue that Defendant is trying to raise. The Shirk case, as to
notice, dealt with timing/statute of limitations/revival.
As
to Defendant’s argument that by adding the third cause of action in the SAC,
the SAC alleges facts and theories of liability materially different than the
allegations set forth in Plaintiff’s Claim for Damages in violation of Fall
River, this Court already addressed that issue in the demurrer hearing of
the FAC held on 1/20/2023.
Here,
Plaintiff alleged as follows in its Claim for Damages: “Mr. Price was walking
down Metro Station stairs because the elevator was out of order, he was using a
cane and he fell down several stairs. Elevator was out of order and our client
was forced to use stairs, under his condition and the Metro’s condition, he
fell.”
“The
third cause of action patently attempts to premise liability on an entirely
different factual basis than what was set forth in the tort claim. Such a
variance has been held fatal to a plaintiff's pleading in several analogous
cases.” (Fall River Joint Unified School Dist. v. Superior Court (1988)
206 Cal.App.3d 431, 435.) Here, the third cause of action does not attempt to
premise liability on an entirely different factual basis than what was alleged
in the Claim for Damages.
Defendant
also argues that the four statutes that Plaintiff cites for its basis for the
third cause of action do not provide a mandatory duty under the third cause of
action. Problematic with Defendant’s arguments with respect to the four
statutes that Plaintiff referenced in its SAC is that Defendant provided no
law(s) to support its arguments. The Court also finds that Plaintiff’s
allegations are sufficiently certain based upon the law that Plaintiff cited in
its opposition on pages 3 and 6.
TENTATIVE RULING
Defendant’s
demurrer to the third cause of action is OVERRULED.
MOTION TO STRIKE
RELIEF
REQUESTED
Defendant moves for an order
striking the following portions alleged in Plaintiff’s SAC:
1. Page 3, paragraph 8.
2. Page 3, paragraph 9.
3.
Page 3, paragraph 10, line 17-20: ''...which violated applicable building
codes, ADA regulations, and other industry standards, which led to an incident
wherein Plaintiff tripped and fell while at the PREMISES..."
4.
Page 6, line 18-20.
5.
Page 6-7, paragraph 30-35.
6.
Page 7, line 16-18.
7.
Page 7-8, paragraph 36-42.
Meet
and Confer
“Before filing a motion to strike
pursuant to this chapter, the moving party shall meet and confer in person or
by telephone with the party who filed the pleading that is subject to the
motion to strike for the purpose of determining if an agreement can be reached
that resolves the objections to be raised in the motion to strike. If an
amended pleading is filed, the responding party shall meet and confer again
with the party who filed the amended pleading before filing a motion to strike
the amended pleading.” (CCP §435.5(a).)
The
parties met and conferred but an agreement was not reached. (Decl. Ashour ¶5.)
Motion
to Strike Standard
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. (CCP § 435(b)(1); Cal. Rules of Court, Rule
3.1322(b).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any
pleading not drawn or filed in conformity with the laws of California, a court
rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz
(1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the
claim is surplusage; probative facts are surplusage and may be stricken out or
disregarded”].)
TENTATIVE
RULING
Motion to strike portion 1 is GRANTED
as it is irrelevant because Plaintiff is not bringing a cause of action for
violation of the ADA.
Motion to
strike portion 2 is DENIED because it is relevant.
Motion to
strike portion 3 is DENIED. The quotation that Defendant provided in its notice
of motion alleged to be at Page 3, paragraph 10, lines 17-20, is not what the
SAC actually states at those lines.
Motion to
strike portion 4 is DENIED.
Motion to
strike portion 5 is DENIED.
Motion to
strike portion 6 is DENIED.
Motion to
strike portion 7 is DENIED.