Judge Lynne M. Hobbs, Case Number: 21STCV19068, Date: 2023-12-18 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV19068, Date: 2023-12-18 Tentative Ruling

Case Number: 21STCV19068 Hearing Date: December 18, 2023 Dept: 30

MONIQUE MAYO-LEVIN vs CITY OF SANTA MONICA, et al.

TENTATIVE

Defendants’ demurrer is SUSTAINED without leave to amend. Moving party to give notice.

Request for Judicial Notice

Defendants request that the Court take judicial notice of (1) Plaintiff’s Complaint; (2) Defendants’ Answer (3) Defendant City of Santa Monica’s Motion for Summary Judgment; (4) Plaintiff’s Opposition to Defendant City of Santa Monica’s Motion for Summary Judgment; and (5) Defendant City of Santa Monica’s Reply to Plaintiff’s Opposition to Defendant City of Santa Monica’s Motion for Summary Judgment; (6) this Court’s minute order granting the City of Santa Monica’s Motion for Summary Judgment; (7) Defendants’ Notice of Ruling on Defendants’ Motion for Judgment on the Pleadings; (8) Plaintiff’s First Amended Complaint; and (9) portions of Plaintiff’s deposition transcript, dated on or about April 7, 2022.

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

The Court may take judicial notice of the existence of the records, but not the truth of matters asserted in such records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565).

Defendants’ request for judicial notice is GRANTED as to the existence of the records, but not the truth of the matters contained in the records.

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.) 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.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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 747.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code of Civ. Proc. § 430.41.)

Discussion

Meet and Confer

The motion is accompanied by the declaration of Darin Flagg, which satisfies the meet and confer requirements.

Merits

Defendants demur to Plaintiff’s FAC, arguing that it fails to allege sufficient facts to state a cause of action. Given that Defendant City of Santa Monica’s motion for summary judgment was granted by this Court on the ground that the defect that allegedly caused Plaintiff’s fall was trivial as a matter of law, Defendants argue Plaintiff is collaterally estopped from asserting a claim for negligence against Defendants.

Collateral estoppel, or issue preclusion, “precludes relitigation of issues argued and decided in prior proceedings.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) “ ‘The threshold requirements for issue preclusion are: (1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding. [Citation.]’ (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481.)” (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 398-399.)

Defendant first argues that the Court already ruled, as a matter of law, that Plaintiff could not prevail on her first cause of action on the Complaint because the defect in the sidewalk is trivial as a matter of law. Defendant contends the exact same allegation, under the exact same cause of action, was alleged against the Defendants in the Complaint. Next, Defendant argues the issue of trivial defect has actually been litigated and necessarily decided. It was the primary argument in the City's Motion for Summary Judgment, which was fully briefed and opposed by the Plaintiff. Plaintiff's opposition included the presentation of evidence, including an expert witness declaration. Defendants argue that the ruling was final as the Defendant City of Santa Monica obtained a judgment against the Plaintiff. Finally, Defendants argue that Plaintiff was a party to the prior proceeding.

The Court finds that issue preclusion applies here. Defendants are seeking to preclude the issue that the sidewalk defect was a trivial defect. Further, the issue was necessarily decided by this Court when it granted the City’s MSJ. Further, it was actually litigated as both parties briefed the issue presented in the City’s MSJ. The ruling was final, and preclusion is sought against Plaintiff, who was the party that the MSJ was brought against.

In opposition, Plaintiff asserts that collateral estoppel does not apply as the issue decided by the City’s MSJ regarding dangerous condition of public property pursuant to Gov. Code § 835, is not identical to the issue in the instant case against Defendants for the negligent management of property pursuant to Civil Code § 1714.

However, the issue to be precluded is whether the defect was trivial. Because the Court ruled that it is, it would also bar Plaintiff’s cause of action for negligence/premises liability.

Plaintiff also argues that the FAC pleads aggravating circumstances. Plaintiff alleges that hedges on the property and a planter were obscuring Plaintiff’s view. However, Plaintiff cannot relitigate the issue of whether the defect was trivial by asserting new allegations or evidence that could have been raised in the prior proceeding, i.e., in opposition to the motion for summary judgment.

“ ‘If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.’ ” (Warga v. Cooper (1996) 44 Cal.App.4th 371, 377–378, quoting Sutphin v. Speik (1940) 15 Cal.2d 195, 202.) A party cannot “ ‘by negligence or design withhold issues and litigate them in consecutive actions' ” (Warga v. Cooper, supra, at p. 378), or “escape the bar of the prior decision[ ] by asserting that ... [it has] other evidence which was not introduced in the earlier proceedings.” (MIB, Inc. v. Superior Court (1980) 106 Cal.App.3d 228, 235.)

“An exception to collateral estoppel cannot be grounded on the alleged discovery of more persuasive evidence. Otherwise, there would be no end to litigation.” (Evans v. Celotex Corp. (1987) 194 Cal.App.3d 741, 238.)

Thus, Plaintiff cannot, by negligence or design, withhold the allegations relating to the hedges and the planter, and assert them now that the City’s MSJ was granted on the grounds that the defect was trivial because Plaintiff did not provide evidence of aggravating circumstances. Otherwise, there would be no end to litigation.

As such, Defendants’ demurrer is SUSTAINED. A demurrer must be sustained without leave to amend absent a showing by plaintiff that a reasonable possibility exists that the defect can be cured by amendment. (Blank v Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proving such reasonable possibility rests squarely on the plaintiff. (Torres v City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1041.) Plaintiff was given an opportunity to amend the complaint in an effort to cure the defects. Plaintiff has failed to cure the defect. Further, in opposition, Plaintiff has not met her burden to show a reasonable possibility exists that the defect can be cured as the opposition does not request leave to amend at all.