Judge: Kerry Bensinger, Case: 22STCV15316, Date: 2023-10-06 Tentative Ruling

Case Number: 22STCV15316    Hearing Date: October 6, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 6, 2023                                 TRIAL DATE:  November 6, 2023

CASE:                         Crystal Lambert v. Child Care Careers, LLC, et al.

CASE NO.:                 22STCV15316

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:               Defendant City of Los Angeles

RESPONDING PARTY:     Plaintiff Crystal Lambert

I.          BACKGROUND

            On May 9, 2022, Plaintiff, Crystal Lambert, initiated this action against Defendants, Child Care Careers LLC, City of Los Angeles (“City”), and Mexican American Opportunity Foundation, for (1) Negligence, (2) Premises Liability, and (3) Respondeat Superior.  Plaintiff alleges she was working as a substitute teacher at Preschool & Day Care Staffing Firm at 3440 Wilshire Blvd Suite 1111, Los Angeles, California (the “Premises”) when a student assaulted Plaintiff.  Plaintiff further alleges the Defendants owned, maintained, controlled, managed, and operated the Premises.  Plaintiff seeks punitive damages.

            On August 31, 2023, the City filed this Demurrer and Motion to Strike punitive damages from the Complaint. 

Plaintiff opposes the demurrer and the City replies.  The motion to strike is unopposed.

II.        LEGAL STANDARD FOR DEMURRER  

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)  

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)   

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  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 complainant to show the Court that a pleading can be amended successfully.  (Ibid.)  

III.      JUDICIAL NOTICE

            The City requests judicial notice of the following: (1) Plaintiff’s Claim for Damages No. C22-18920 filed with the City of Los Angeles on April 18, 2022; (2) U.S. Census Bureau Data for the Cities of Beverly Hills and Los Angeles; (3) California Secretary of State Records of ChildCare Careers LLC Filings; and (4) Screen shot and Printouts from the ChildCare Careers LLC Website.  Given the ruling herein, the Court need not address the request for judicial notice.  

IV.       DISCUSSION

C.  Meet and Confer

Defense counsel has complied with the meet and confer requirement.¿ (See Declaration of Margaret Shikibu, ¶¶ 3-10.)

D.  Analysis

The Complaint is subject to demurrer for at least two reasons.  First, common law causes of action cannot be asserted against a public entity.  “Under the Government Claims Act (Gov. Code, § 810 et seq.), there is no common law tort liability for public entities in California; instead, such liability must be based on statute.”  (Guzman v. County of Monterey¿(2009) 46 Cal.4th 887, 897.)  Here, the Complaint sets forth causes of action against the City— negligence, premises liability, respondeat superior—which sound in common law.  Plaintiff argues there are statutory bases for her claims.  However, the Complaint is devoid of allegations showing which statutes apply. 

Second, a complaint against a public entity must allege compliance with the Government Claims Act.  “[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement.”  (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.)  Here, the Complaint does not allege whether she has complied with the applicable claims statute.  

In sum, the Complaint is deficient.  Plaintiff does not provide any meritorious or relevant argument to the contrary.  The demurrer is SUSTAINED.

IV.        CONCLUSION

The demurrer is sustained.  Leave to amend is granted.

Plaintiff Cyrstal Lambert is ordered to serve and file a First Amended Complaint within 30 days of this order. 

Defendant City of Los Angeles is ordered to serve and file its responsive pleading within 30 days of service of the First Amended Complaint.

The motion to strike is moot.

Moving party to give notice. 

Dated:   October 6, 2023                                           ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.