Judge Gail Killefer, Case Number: 23STCV16491, Date: 2024-08-01 Tentative Ruling

TENTATIVE: Defendant’s MJOP is granted without leave to amend. The action is dismissed. Defendant to give notice.

On July 14, 2023, Devan Fetherston (“Plaintiff”) filed a Complaint against Los Angeles Dodgers, LLC (“Defendant”).

On March 20, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”). The FAC alleges causes of action for General Negligence and Premises Liability, Intentional Infliction of Emotional Distress, and Violations of Penal Code §§ 347 and 182.

On June 12, 2024, the Defendant filed a Motion for Judgment on the Pleadings (“MJOP”). No opposition or reply has been filed. The matter is now before the court.

motion for judgment on the pleadings[1]

I. Legal Standard

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)¿¿

Defendants move for a judgment on the pleadings on the grounds that the FAC (1) fails to state a cognizable cause of action against Defendant, (2) Plaintiff cannot bring claims against Defendant under the alleged Penal Code statutes, and (3) Plaintiff's claims for general negligence, premises liability, negligent and intentional infliction of emotional distress are barred by the applicable statute of limitations.

Defendant asserts that the alleged Penal Code violations— section 347 (unlawful mingling of poison or harmful substance with food, drink, medicine, or water supply), section 646.9 (stalking),section 422 (criminal 5 threats), section 182 (conspiracy), and section 236.1 (human trafficking)—do not confer a private right of action. (See Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 144 [“[I]n the absence of an intent to provide a private right of action, that the courts were not to create such a right.”]; Ellis v. City of San Diego, Cal. (9th Cir. 1999) 176 F.3d 1183, 1189 [No private right of action for alleged Pen. Code violations].)

B. Intentional Infliction of Emotional Distress (IIED) and Negligence Based-Causes of Action

The FAC alleges that Plaintiff attended an event at Dodgers’ stadium on June 2, 2019, and was then assaulted by non-party members of a criminal and/or terrorist organization. (Compl. at p. 4.) Plaintiff further alleges that “these same individuals” “poisoned” him prior to an assault that occurred on February 4, 2019. (Ibid.) Defendants demur to the IIED claim because there are no facts regarding the Defendant’s conduct that would give rise to liability under IIED. Defendants further assert that the FAC alleges no facts showing that Plaintiff suffered extreme emotional distress. The court agrees.

Defendant also asserts that Plaintiff’s claims are barred by the applicable statute of limitations.

CCP § 335.1 imposes a two-year statute of limitations for “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another. The IIED, negligence, and negligent infliction of emotional distress (“NIED”) causes of action have a two-year statute of limitations. (CCP, § 335.1; Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th 825, 852–853; Miller v. Bank of America, Nat. Ass'n (S.D. Cal. 2012) 858 F.Supp.2d 1118, 1127 [explaining NIED claims is now governed by a two-year statute of limitations rather than the previous one-year statute of limitations].) The FAC alleges that Plaintiff’s injury-causing event occurred on June 2, 2019, but Plaintiff did not file this action until over four years later on July 14, 2023. Therefore, the action is time-barred.

Plaintiff failed to oppose the MJOP and failed to show that the FAC is capable of successful amendment. For this reason, the court grants the motion without leave to amend.

Defendant’s MJOP is granted without leave to amend. The action is dismissed. Defendant to give notice.

[1] CCP § 439 requires the moving party to meet and confer in person or by telephone with the party who filed the pleading before filing a motion for judgment on the pleadings. The meet and confer requirement has been met. (Robie Decl., ¶ 2.)