Judge: David B. Gelfound, Case: 24CHCV01448, Date: 2024-10-03 Tentative Ruling

Case Number: 24CHCV01448    Hearing Date: October 3, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER

Motion filed: 7/15/24

MOVING PARTY: Defendants City of Los Angeles, acting by and through the Los Angeles Department of Water and Power, and City of Los Angeles

RESPONDING PARTY: Plaintiff Rade Raicevic 

NOTICE: OK.

RELIEF REQUESTED: An order sustaining Defendants’ Demurrer to Plaintiff’s Complaint

TENTATIVE RULING: The Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

BACKGROUND

This action arises from alleged damage to Plaintiff’s main water line at 17048 Sunburst Street, Sherwood Forest, California. Plaintiff Rade Raicevic (“Plaintiff” or “Raicevic”) claims that structural damage to the main water line was caused by Defendants’ trash collection truck on March 5, 2022.

On April 19, 2024, Plaintiff filed the Complaint against Defendants Los Angeles Department of Water and Power (“LADWP”), City of Los Angeles (“City of LA”) (collectively, “Defendants”) and Does 1 through 10, alleging single cause of action for General Negligence.

On July 15, 2024, Defendants filed the instant Demurrer to the Complaint. Subsequently, Plaintiff filed an Opposition on August 12, 2024, and Defendants replied on September 24, 2024.

ANALYSIS

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)

At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against them. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 (Berkley).) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

A.    Request for Judicial Notice

Defendants request that the Court take judicial notice of the following matters:

1.      Request for Judicial Notice (“RJN”) No. 1: The fact that LADWP and City of LA are public entities pursuant to California Evidence Code section 452(g).

2.      RJN No. 2: Certified copy of “First Amended Complaint” previously filed by Plaintiff in Small Claim Court, case number 23CHSC01226, and

3.      RJN No. 3: Certified copy of Notice of Entry of Judgment by Small Claim Court in the case number 23CHSC01226

Pursuant to California Evidence Code section 425, Judicial notice may be taken of the following matters: “(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States....(g)  Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.”

            The Court GRANTS Defendants’ RJN No. 1.

            The Court GRANTS Defendants’ RJN Nos. 2 and 3 to the extent that it accepts as true only that (1) they were filed, and (2) the assertions therein were made. The Court does not take notice of the truth of their contents. (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374-375; see also Day v. Sharp (1975) 50 Cal.App.3d 904, 916.)

B.     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., section 430.41(a).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

Here, the requirement for meet and confer has been satisfied. (Baik Decl. ¶ 4, Ex. “5.”)

C.    Demurrer

Defendants demur to the Complaint on the grounds of that: (1) the Court lacks jurisdiction over the subject of the cause of action per principle of Res Judicata, (2) Plaintiff fails to state facts sufficient to constitute a cause of action, and (3) Plaintiff’s allegations regarding certain damages is ambiguous and unintelligible.

1)       Res Judicata

“Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ [Citation.] Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause of action is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896–897.) Res judicata bars not only matters that were actually litigated but also those that could have been litigated in a prior suit, so long as they are part of the same cause of action finally resolved in that suit. (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 975.)

The prerequisite elements for applying the doctrine are: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgement on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.)

The claim preclusion aspect of res judicata applies to small claims judgments. (Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374, 1381 (Pitzen).) Collateral estoppel applies to claims litigated and decided against plaintiffs in a small claims action; it does not apply to claims litigated and decided against a small claims defendant. (Id. at pp. 1385–1386.)

            Here, Defendants present that on November 3, 2023, Plaintiff filed a Claim and Order to Go to Small Claims Court in case number 23CHSC0126 (Baik Decl. Ex. “2.”) Thereafter, on January 19, 2024, Plaintiff filed “First Amended Complaint” or SC-100 Plaintiff’s Claim and Order to Go to Small Claims Court against Defendant “LADWP AND CITY OF LOS ANGELES.” (Baik Decl. Ex. “3,” RJN No. 2) Plaintiff claimed his damages as following: “1. DWP Trush [sic] truck pick-up damage our main water line. We spent 42,8000 for repair. 2. Incident happen on city property. 3. DWP billing statements overcharges invoice over $3,100 in various billing cycle statements. Up to date we been reimbursed $1,100, and we have $2,000 outstanding balance.” (Ibid.) Plaintiff indicated on the SC-100 form that the alleged damages occurred on March 2, 2023. (Ibid.) Subsequently, on March 19, 2024, a judgment was entered in the small claims case, stating, “Court orders judgment entered on the Amended Plaintiff’s Claim (1st) filed by Rade Raicevic on 11/03/2023 as follows: Defendants Los Angeles Dept. of Water Power & Water; City of Los Angeles do not owe the plaintiff Rade Raicevic any money on plaintiff’s claim.” (Baik Decl. Ex. “4,” RJN Nos. 3)

            The Court finds that the requisite elements for applying res judicata are satisfied. First, the claim and issue raised in this action are identical to the those litigated in the small claims court. Both proceedings concern the same alleged damage to Plaintiff’s main water line, caused by Defendants’ weekly trash pick-up truck in the first week of March 2023. Second, the small claims proceeding resulted in a final judgment on the merits following a non-jury trial. Third, the parties involved in the small claims proceeding are the same in this action.

             Accordingly, the Complaint’s sole cause of action for General Negligence is barred from relitigation under the doctrine of res judicata.

            On the ground, the Court SUSTAINS without LEAVE TO AMEND the Demurrer.

2)      Failure to Sufficiently State a Cause of Action

Defendants assert that the Demurrer should be sustained on this alternative ground. The Court agrees.

'The elements of a cause of action for negligence are well established. They are "(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach was the proximate or legal cause of the resulting injury [damages]." (Laddv. County of San Mateo (1996) 12 Cal.4th 913, 917.) The absence of any one of the elements is fatal to a negligence claim. (See Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 195.)

Furthermore, the Government Claims Act states that “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 a public employee or any other person.” (Gov. Code, § 815.) As the Senate Legislative Committee explained in the comment to Government Code Section 815, “the practical effect of this section is to eliminate any common law governmental liability for damages arising out of torts.”

“[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating a specific duty of care, and not on the general tort provisions of Civil Code section 1714.” (Munoz v. City of Union City, (2004) 120 Cal.App.4th 1077, 1112.) “The cases do make plain, however, that a verdict against a county must be overturned if it is erroneously based on a negligence theory.” (Hilts v. Solano County (1968) 265 Cal.App.2d 161, 171.)

Here, Plaintiff’s sole cause of action for General Negligence alleges direct tort liability of Defendants public entities. However, Plaintiff fails to cite any specific statute that impose a duty of care on Defendants in this matter. As a result, Plaintiff has not sufficiently established the first element of the negligence cause of action.

Accordingly, the Court SUSTAINS the Demurrer on this alternative ground.

3)      Allegation of Breach of Implied Covenant of Good Faith and Fair Dealing

Defendants further argue that Plaintiff’s allegation of “Damages for breach of the implied covenant of fair dealing in good faith,” and that “Defendant to compensate Plaintiff for the repair / replacement / restoration of premises damages for Bad Faith – California Code Section 790.03 et. seq.” are ambiguous and unintelligible. (Dem. at p. 7, see Compl. “PLD-PI-001(2).”)

First, the Court notes that such language is typically applicable to contract claims, as the law implies a covenant of good faith and fair dealing in every contract. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720.) The obligations imposed by the implied covenant are imposed by law to govern the manner in which the express contractual obligations must be discharged – i.e., fairly and in good faith. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 573; California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 54; Chateau Chamberay Homeowners Ass’n v. Associated Int’l Ins. Co. (2001) 90 Cal.App.4th 335, 346.) (Underlines added.)

Here, the Complaint alleges single cause of action for General Negligence. In the absence of any allegations supporting a contractual claim, the allegation of “breach of the implied covenant of fair dealing in good faith” is deemed to be ambiguous and unintelligible.

Second, the Court determines that this allegation, on its own, does not constitute a separate cause of action.

In California, what constitutes a “cause of action” for purposes of res judicata is determined by application of the primary right theory. “[A] ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.] A pleading that states the violation of one primary right in two causes of action contravenes the rule against ‘splitting’ a cause of action. [Citation.]” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.)

Here, Plaintiff only alleges the invasion of a single right – his right to be free from property damage to the main water line and resulting monetary loss. Plaintiff asserts that Defendants acted in bad faith by “[f]ailing to promptly pay Plaintiff the necessary amounts required to be paid as the proximate result of his residential water loss for many weeks or perhaps months,” and that “Defendant to compensate Plaintiff for the repair/replacement/restoration of premises damages for bad faith – California Code Section 790.03 et seq.”

Consequently, as the Court has barred the General Negligence cause of action, these allegations – arising from the same right and involving the same legally cognizable harm as those asserted in the General Negligence claim – must also be barred under the doctrine of res judicata.

4)      Plaintiff’s Opposition

Here, Plaintiff’s Opposition include four paragraphs labeled (a) through (d). However, the assertions in these paragraphs amount to, at most, factual declarations by Plaintiff. The Opposition lacks any legal analysis.

Consequently, the Court finds the Opposition fails to address the legal issues raised in Demurrer and does not overcome the findings as analyzed above.

5)      Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff "has pleaded the general set of facts upon which his cause of action is based," the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not "be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars." (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 '("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

Given that Plaintiffs claim is barred, as discussed above, there is no reasonable possibility that the defect can be cured by amendment. For this reason, Defendants' Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

CONCLUSION

Defendants Los Angeles Department of Water and Power and City of Los Angeles’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.