Judge: Jon R. Takasugi, Case: BC720118, Date: 2022-09-21 Tentative Ruling

Case Number: BC720118    Hearing Date: September 21, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s demurrer is SUSTAINED without leave to amend. Accordingly, Defendant’s motion to strike is MOOT.

            On September 4, 2018, Plaintiff Tito A. Thomas filed a Complaint against Defendants Kota Commercial Assets, LLC, Kurt Bierschenk, and Mark Anthony Sarno. On its face, the Complaint is for 1) personal injury and 2) defamation.

            On April 30, 2019, Plaintiff filed a FAC against Kota Commercial Assets, LLC, Kurt Bierschenk; Cactus Heating & Cooling; Mark Anthony Sarno; and Travelers Insurance, setting forth claims for 1) violation of Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99); 2) violation of Civil Rights Act of 1964 (Title VI), and Title IX of the Education Amendments of 1972; 3) retaliation – public policy (Penal Code § 422); 4) false evidence violations; 5) failure to prevent discrimination, harassment, and assault; and 6) public policy – religious discrimination (Cal. Const. art. I, § 8).

            On August 26, 2019, the Court sustained Sarno’s demurrer to the first, fourth, fifth, and sixth cause of action without leave to amend.

            On September 20, 2019, Plaintiff filed the operative SAC for 1) Ralphs Civil Rights Act (Violation of Cal. Civ. Code § 51.7), 2) battery, 3) assault, 4) interference with exercise of Civil Rights (Cal. Civ. Code § 52.1), 5) intentional infliction of emotional distress, and 6) negligence (premises liability).

Defendant Cactus Heating & Cooling now demurs each cause of action in the SAC and moves to strike the second and third causes of action.

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 (Hahn).) ¿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.)¿ 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.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “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 p. 747.)

Discussion

I.                   Judicial Notice

Defendant’s request for judicial notice is GRANTED. (Evid. Code § 452(d).)

II.               First Cause of Action

Defendant argues that the first cause of action for violation of the Ralph Civil Rights Act of 1976 is barred because in the act Plaintiff claims his right to be free from any violence or intimidation based upon … race, color he was actually charged and convicted of violations of Penal Code § 211 (armed robbery) and Penal Code § 245(a)(4) (assault by means likely to produce great bodily injury). Said conviction arises out of the same events and occurrences that form the basis of the allegations contained in Plaintiffs Second Amended Complaint. Defendant cites to Gabrielle A. v. County of Orange (2017) 10 Cal. App. 5th 1268, which held that no-contest pleas to jurisdiction in juvenile dependency proceedings barred subsequent civil rights claims for wrongful removal of children. Furthermore, as a condition of probation Plaintiff Thomas was required to pay restitution to the victims, including Mark Sarno. Accordingly, the demurrer to the first cause of action is SUSTAINED without leave to amend.

III.            Second and Third Causes of Action

Defendant demurs and moves to strike to the second and third causes of action on the basis that the claims barred because the Court previously sustained the demurrer to these causes of action without leave to amend.

            The Court previously found that to the extent that Plaintiff was claiming assault, the claim was barred by the statute of limitations. The facts alleged in the fifth cause of action in the FAC are the same facts alleged for assault and battery. As both assault and battery have a two-year statute of limitations, both of these claims are barred as the Court previously found. (See CCP §335.1; Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1450.)

            Accordingly, the demurrer to the second and third causes of action are SUSTAINED without leave to amend.

IV.            Fourth, Fifth, and Sixth Causes of Action

Defendant argues that the fourth, fifth, and sixth causes of action are barred by the statute of limitations because they are personal injury claims that must have been filed two years from the injury. The injury occurred on June 21, 2016 and thus Plaintiff had to file the action by June 21, 2018. The Court agrees. Plaintiff filed this action on September 4, 2018, thus these claims are barred.

Accordingly, the demurrer to the fourth, fifth, and sixth causes of action are SUSTAINED without leave to amend.

The motion to strike is moot.

It is so ordered.

Dated:  September    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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