Judge: Lee W. Tsao, Case: 22NWCV02962, Date: 2024-07-30 Tentative Ruling
Case Number: 22NWCV02962 Hearing Date: July 30, 2024 Dept: C
Carlos Humberto Ramirez
Ledesma vs. Nicholas Joseph Gutierrez et al.
Case No.: 23NWCV02962
Hearing Date: July 30, 2024 @ 9:30 a.m.
#5
TENTATIVE RULING
Defendant County of Los Angeles’s Demurrer is
SUSTAINED with 20 days leave to amend.
Defendant to give notice.
Background
This is a personal injury lawsuit. The operative First Amended Complaint
(“FAC”), filed on August 16, 2023, alleges “On or about November 16, 2022 at
around 6 :30 a.m., Defendant Nicholas Joseph Gutierrez was south on Mills Road
and veered into northbound lanes, driver was going the wrong-way on Mills
Avenue on his way to work. Defendant Nicholas Joseph Gutierrez plowed into 25 law
enforcement recruits who were on a training run. Plaintiff Carlos Humberto Ramirez Ledesma
“aka” Carlos Ramirez was one of the recruits/runners that was severely
injured. Defendant was in violation of
California Vehicle Code §21651b [sic] driving on the wrong side of the road.”
(FAC, p. 5.) Plaintiff Carlos Humberto Ramirez Ledesma (“Plaintiff”) brings
causes of action for Negligence and Violation of the Bane Act against
Defendants Nicholas Joseph Gutierrez (“Gutierrez”) and the County of Los
Angeles (“The County”).
The County demurs on the grounds that the FAC fails to
state facts sufficient to constitute a cause of action and is uncertain. More specifically, the County argues that the
FAC fails to allege a statutory or factual basis against the County, as there
is no direct liability against a public entity for non-statutory negligence.
Meet and Confer
The Court determines that the County sufficiently attempted
to meet and confer. (CCP § 430.41, subd. (a)(3).)
Legal Standard
The
party against whom a complaint has been filed may object to the pleading, by
demurrer, on several grounds, including the ground that the pleading does not
state facts sufficient to constitute a cause of action or is uncertain. (Code
Civ. Proc. § 430.10., subds. (e) & (f).)
The
grounds for any demurrer must appear on the face of the pleading or from
matters outside the pleading if they are judicially noticeable. (Code Civ.
Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Tenet
Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245
Cal.App.4th 821, 834.)
“If
a demurrer is sustained, the court may grant leave to amend the pleading upon
any terms as may be just and shall fix the time within which the amendment or
amended pleading shall be filed.” (Code Civ. Proc., § 472a, subd. (c).) A trial
court “must grant leave to amend after sustaining a demurrer if a plaintiff
seeks such leave and shows how amendment will cure the defect in the
complaint.” (Thornton v. California Unemployment Ins. Appeals Bd. (2012)
204 Cal.App.4th 1403, 1423.)
Discussion
Second
Cause of Action: Negligence
To state a claim for negligence,
Plaintiff must allege: (1) “the existence of a legal duty of care,” (2) “breach
of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre
v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)
The
County argues that Plaintiff has failed to plead a statutory basis for the
County’s liability.
Gov.
Code § 815 provides in relevant part, “Except as provided by statute: (a) [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.”
This
does not mean the statute itself must expressly make itself applicable to
government entities. It need only define the tort in general terms.
"But the phrase as
‘provided by statute’ is given its broadest possible meaning by our Supreme
Court. It is not interpreted to mean that public entities are liable in tort
only when the Legislature has enacted a statute imposing liability which on its
face is applicable to public bodies. Rather, liability is deemed ‘provided by
statute’ if a statute defines the tort in general terms." (Levine v.
City of Los Angeles (1977) 68 Cal. App. 3d 481, 487.)
The
complaint must identify the statute “at the very least,” “Since the duty of a
governmental agency can only be created by statute or ‘enactment,’ the statute
or ‘enactment’ claimed to establish the duty must at the very least be
identified.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App.
3d 792, 802.)
Here, Plaintiff argues
that the County caused Plaintiff and the other recruits to violate Vehicle Code
§ 21954 (pedestrians shall yield the right-of-way to all vehicles upon the
roadway) and Vehicle Code § 21956 (pedestrians shall not walk upon a
roadway). However, these statutes are
not alleged in the FAC, and the FAC alleges no other statutory basis for
liability against the County.
Accordingly, the demurrer to the second cause of action is
SUSTAINED with 20 days leave to amend.
Third Cause of Action: Violation of the Bane
Act
The Bane Act authorizes
suit against anyone who by threats, intimidation, or coercion interferes with
the exercise or enjoyment of rights secured by the state or federal
Constitutions or laws without regard to whether the victim is a member of a
protected class. (Civ. Code § 52.1.) To obtain relief under Section 52.1,
liability only requires interference or attempted interference with the
plaintiff’s legal rights by the requisite threats, intimidation, or coercion. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841-843.)
Plaintiff fails to plead any facts to illustrate how the County
or any of its employees violated the Bane Act.
Moreover, the violence or threatened violence must be because of
plaintiff’s membership in one of the specified classifications set forth in
Civil Code § 51.7 or a group similarly protected by the Constitution or statute
from hate crimes. (Cabesuela v. Browning-Ferris Indus. of Calif., Inc.
(1998) 68 Cal.App.4th 101, 111.)
The demurrer to the third cause of action is SUSTAINED with
20 days leave to amend.