Judge: Douglas W. Stern, Case: 22STCV06315, Date: 2023-09-18 Tentative Ruling

Case Number: 22STCV06315    Hearing Date: January 4, 2024    Dept: 68

West Coast Add It Up Ad Agency vs. Los Angeles Metropolitan Transportation Authority.; 22STCV06315

MOVING PARTIES: Defendants Los Angeles County Metropolitan Transportation Authority, Alvin Kusumoto, Evan Rosenberg, and Stephanie Wiggins

RESPONDING PARTY: Plaintiff West Coast Add It Up Ad Agency

Demurrer to Third Amended Complaint

Motion to Enforce Settlement

I. BACKGROUND

Plaintiff West Coast Add It Up Ad Agency (Plaintiff) appears to be alleging that it entered into some type of agreement with Defendant Los Angeles County MTA (Defendant) for the usage of the Tap App in 2014. Plaintiff’s Third Amended Complaint (TAC) does not include the specific terms of the agreement or have the agreement attached to the TAC. In Plaintiff’s TAC, Plaintiff has sued Defendant along with Defendant’s employees: Alvin Kusumoto, Evan Rosenberg, and Stephanie Wiggins.

The TAC seems to include just one cause of action for due process violation.

Defendant filed its demurrer Plaintiff’s TAC on November 20, 2023. Plaintiff opposes the demurer.

Plaintiff also filed a motion to enforce settlement to be heard on the same day as the demurrer. However, Plaintiff has not provided any indication that such a settlement agreement exists. Additionally, Plaintiff filed the motion on December 22, a mere 13 days before the hearing. That is not proper notice.  CCP § 1005. It is unknown whether the motion has been served on Defendants as there is no proof of service.

II. ANALYSIS

A. The Demurrer

As a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

1. Entire First Amended Complaint

            Defendants demur to Plaintiff’s entire TAC on the basis that the complaint fails to state facts sufficient to constitute a cause of action against Defendants, fails to comply with basic pleading rules, is barred by the applicable statute of limitations, fails to plead whether Plaintiff complied with the Government Tort Claims Act, fails to plead a statutory basis for Defendants’ liability, and fails to allege a constitutionally protected liberty or property interest in its due process claims against Defendants.

            As with the previous iteration of Plaintiff’s complaint, there is no Civil Cover Sheet Addendum and Statement of Location. (L.A. Sup. Ct. Rule 2.3(a).)

            Next, as it appears that Plaintiff is basically alleging a breach of contract claim, that would be barred by the statute of limitations. Breach of contract claims have a four-year statute of limitations. (CCP § 337(a).) The alleged breach of contract took place in 2014, and Plaintiff did not file this action until February 18, 2022.

            Defendant is a public agency created by state law. There is no indication that Plaintiff complied with the Government Tort Claims Act before filing this action against Defendant. (Gov. Code § 911.2.) Plaintiff would need to provide allegations that a claim has been presented to the public entity and has been acted on or rejected by the public entity. (Gov. Code § 910 et seq.)

            Based on the foregoing, the Court sustains Defendant’s demurrer to Plaintiff’s entire TAC without leave to amend. Plaintiff has been given several chances to amend its complaint to comply with the court rules and code requirements, but it has failed to do so.

            B. Motion to Enforce Settlement

            Plaintiff has filed a motion to enforce settlement, apparently pursuant to CCP § 664.6. However, Plaintiff has not indicated the terms of the settlement agreement, or provided any other evidence that such a settlement agreement exists. Plaintiff appears to be alleging that Defendant agreed to the settlement agreement by its silence, but its arguments are unclear in the matter, and the authority that Plaintiff cites is from the New York Appellate Division.

            Plaintiff’s motion to enforce settlement is denied.

III. ORDER

1.    Defendants’ demurrer to Plaintiff’s entire TAC is SUSTAINED WITHOUT LEAVE TO AMEND.

2.    Plaintiff’s motion to enforce settlement is DENIED.