Judge: Malcolm Mackey, Case: 19STCV23612, Date: 2022-11-22 Tentative Ruling

Case Number: 19STCV23612    Hearing Date: November 22, 2022    Dept: 55

LORENZO v. LOS MORALES TRUCKING, INC.                                19STCV23612

Hearing Date:  11/22/22,  Dept. 55

#7:   DEMURRER TO SECOND AMENDED COMPLAINT.

Notice:  Okay

Opposition

MP:  Defendants GREEN DOT PUBLIC SCHOOLS CALIFORNIA and GREEN DOT PUBLIC SCHOOLS NATIONAL.

RP:  Plaintiff

Summary

On 7/3/19, plaintiffs filed the lead action, Lorenzo v. Los Morales (19STCV23612) against the trucking defendants.

On 3/30/20, plaintiffs filed the Complaint, Lorenzo v. LAUSD (20STCV12415), against LAUSD and others.

On 1/13/21, this lead case was ordered consolidated for all purposes with 20STCV23961 and 20STCV12415.

On 2/3/21, plaintiffs filed the Second Amended Complaint, regarding separately filed wrongful death lawsuits that arise out of the same double fatal pedestrian accident. Allegedly, plaintiffs are the parents of two sisters who died in April 2019, after being run over by a dump truck, while they were pedestrians in a crosswalk, on route to middle school, due to the failure to provide for previously school-arranged crossing guards for student safety on particularly dangerous streets near the school, at a time a substitute crossing guard was needed.

On 4/2/21, GREEN DOT PUBLIC SCHOOLS CALIFORNIA and GREEN DOT PUBLIC SCHOOLS NATIONAL were added as DOE defendants 1 and 2, to the Second Amended Complaint.

On 7/16/21, Defendant/Cross-Complainant LOS ANGELES UNIFIED SCHOOL DISTRICT (LAUSD) filed an official form Cross-Complaint against GREEN DOT PUBLIC SCHOOLS CALIFORNIA, GREEN DOT PUBLIC SCHOOLS NATIONAL,  ORIVERA TRUCKING, LLC; LOS MORALES TRUCKING INC; GLOBAL HAWK INSURANCE COMPANY RISK RETENTION GROUP; and STANLEY RANDLE.  The causes of action are:  1)  Indemnification, 2) Apportionment of Fault and 3) Declaratory Relief.

On 6/15/21, the Court overruled the Demurrer of LAUSD, and, on 10/6/21, the Court of Appeal summarily denied an unopposed petition for writ of mandate filed 8/16/21, by Defendant LAUSD, which had requested to overturn the demurrer ruling.

The Complaint in consolidated case number 20STCV23961 alleges that GLOBAL CENTURY, as insurance broker, was used by THANDI as a device to broker insurance policies between California trucking insureds, like LOS MORALES, a small trucking company, and the non-California-admitted, insolvent insurer, Global Hawk, provided a policy for indemnity in the event of catastrophic loss, but now the Lorenzo plaintiffs are unlikely to receive any compensation from GLOBAL HAWK’S liquidation proceedings.

MP Position

Moving parties request an order sustaining the demurrer to the First Cause of Action (Gov. Code § 815.2), and Third Cause of Action (Negligence), of the Second Amended Complaint, on bases including the following:

·         The DOE amendments expressly only apply to the First Cause of Action under the Government Code, but neither Green Dot National nor Green Dot California are public entities, they are private corporations.

·         Even if plaintiffs were to request to amend to allege negligence against demurring defendants, the pleading admits that LAUSD alone controlled safety at the school site bar such a claim.

·         Schools have never been considered insurers of a student’s physical safety while at play or elsewhere. Jimenez v. Roseville City School District (2016) 247 Cal.App.4th 594, 603-04.

·         Decedents were students at LAUSD’s Clinton Middle School, which was alone responsible for safety at the co-location of Clinton Middle School and Animo Jackie Robinson Charter High School.

RP Position

Opposing party advocates overruling, or leave to amend, for reasons including the following:

·         Negligence is sufficiently alleged against demurring defendants.

·         The failure of school personnel to provide a substitute crossing guard was negligence by school personnel in supervising and controlling the crossing guard program, after having already made the operational decision to provide such a program. (Second Amended Complaint ¶ 61.)

·         The conduct of school personnel was unreasonable, because of school personnel’s knowledge and awareness of factors including but not limited to, the risk of students being hit by vehicles, the extent to which students relied on one or more crossing guard(s) on a daily basis, the advance notice that was given that the crossing guard would be away and unavailable for certain days, the extent of control and oversight that school personnel exercised over the crossing guard program, and the feasibility of providing a substitute crossing guard. (Second Amended Complaint, ¶¶ 52 - 61.)

·         “[O]ne who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking.”  Paz v. State of California (2000) 22 Cal.4th 550, 558-59.

·         That LAUSD owns the site and retains some responsibility of site operations and safety in general, does not extinguish as a matter of law the duty owed by the demurring parties, in their negligence in the operation of the crossing guard program.

·         Plaintiffs can amend to plead additional facts establishing the manner in which the employees of the charter school coordinated the crossing guard program, including the training of the volunteer crossing guards, and scheduling. Plaintiffs can also plead further facts establishing that, at its peak, the program had as many as 10 volunteers. Plaintiffs can plead additional facts establishing that employees of the charter school provided equipment to the crossing guards, including a vest, stop sign, and walkie talkie. Further, that the equipment was kept at the school to be available for use, and indeed was at the school on the day of the accident.

Tentative Ruling

The demurrer is sustained, with 20 days’ unlimited leave to amend.

The DOE allegations are very messed up in the heading and body of the Negligence Cause of Action.  The opposition argues negligence liability, but those DOE allegations are against DOE defendants numbered 21 through 30, and not whatsoever against demurring DOE defendants 1 and 2 (e.g., Second Amended Complaint, p. 28).

The failure to identify claims and parties by labeling causes of action may render a complaint uncertain.  Williams v. Beechnut Nutrition Corp. (1986) 185 Cal. App. 3d 135, 139. 

As to each stated cause of action, pleaders must specify defendants.  CRC Rule 2.112. 

Charging allegations against DOE defendants to the effect that each is responsible is some manner for alleged occurrences supporting causes of action, are sufficient, and no more specificity is required.  Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 941-42.  Accord  Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1143. 

Finally, the Court finds a reasonable possibility of successful amendment, which could be done by adding DOE 1 and DOE 2 to the heading and/or body of the Negligence Cause of Action.