Judge: Mark C. Kim, Case: 18STCV072682, Date: 2022-08-23 Tentative Ruling
Case Number: 18STCV072682 Hearing Date: August 23, 2022 Dept: S27
1. Background
Facts
Plaintiff, Ursula Carmody filed
this action against Defendant, City of Los Angeles for (1) negligence – direct liability,
(2) negligence – city vicarious liability/employee, and (3) negligence – city/employee
failed to inspect and warn of dangerous condition. Plaintiff alleges she was a volunteer at Harbor
Animal Care Shelter, which is owned by the City. She alleges the City breached a duty to
inspect and evaluate a dog under its control, and failed to warn Plaintiff or others
that the animal was dangerous. Plaintiff
alleges Defendant instructed her to groom, bathe, and walk the dog, and the dog
knocked her down, attacked her, mauled her, and bit her in her head, face, and
armpit.
On 8/24/21, the Court signed the parties’
stipulation to permit Plaintiff to file a First Amended Complaint adding a
claim for gross negligence. The Court
does not have any record of Plaintiff ever actually filing the amended
complaint. On 9/16/21, the City filed
its operative First Amended Answer, which indicates it is to Plaintiff’s “complaint,”
not FAC. It therefore appears Plaintiff’s
original complaint remains operative.
On 1/18/22, the Court granted the City’s
unopposed motion for leave to file a cross-complaint. On 1/26/22, the City filed a cross-complaint
against Plaintiff. The cross-complaint includes
causes of action for indemnification, apportionment of fault, declaratory
relief, and breach of contract. The prayer
seeks indemnity, judgment in a proportionate share, a judicial determination
for indemnification, and compensatory damages.
2. Demurrer
Plaintiff demurs to the entire
cross-complaint, as well as to the ninth affirmative defense in the amended
answer, which contends Plaintiff’s action is barred by the provisions of the
parties’ indemnity waiver and the release of liability and assumption of risk receipt
of volunteer handbook.
A demurrer is a pleading used to test
the legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true, however
improbable they may be.
A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39
Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], §
430.30 [as to any matter on its face or from which judicial notice may be
taken], and § 430.50(a) [can be taken to the entire complaint or any cause of
action within]. Specifically, a demurrer
may be brought per CCP § 430.10(e) if insufficient facts are stated to support the
cause of action asserted. Per CCP
§430.10(a) a demurrer may be brought where the court has no jurisdiction of the
subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be
sustained only where the complaint is so bad that the defendant cannot reasonably
respond. CCP § 430.10(f).
However, 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, 189 Cal.App.3rd 764, 769 (1987). And, if the
facts pled in the complaint are inconsistent with facts which are incorporated
by reference from exhibits attached to the complaint, the facts in the
incorporated exhibits control. Further, irrespective of the name or label given
to a cause of action by the plaintiff, a general demurrer must be overruled if
the facts as pled in the body of the complaint state some valid claim for relief.
Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. Goodman v.
Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show
the Court that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41
requires that “[b]efore filing a demurrer pursuant to this chapter, the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (CCP §430.41(a).) The parties are to meet and confer at
least five days before the date the responsive pleading is due. (CCP §430.41(a)(2).)
Thereafter, the demurring party shall file and serve a declaration detailing
their meet and confer efforts. (CCP §430.41(a)(3).)
In Plaintiff’s original filing, Plaintiff
failed to file a meet and confer declaration with the demurrer. Per the Court’s
July 12th Minute Order, the hearing on the instant case was
continued to August 23, 2022 in order to allow for parties to meet and confer.
(Minute Order, 07/12/22). In opposition to the demurrer, Defense Counsel provides
a declaration stating that the parties met and conferred prior to the filing of
the motion for leave to file a cross-complaint, but the crux of the issue was whether
a cross-complaint by a single defendant against a single plaintiff was proper
as a matter of law, and not whether the indemnification and waiver agreement
was enforceable. Plaintiff, with the
reply, submits two emails, one of which shows a discussion concerning unconscionability
and the other of which shows a discussion concerning the logistics of how the parties
plan to proceed with the action. Neither
of the previous emails showed a discussion concerning the major issue raised by
way of the instant demurrer, which is whether the waiver and release agreement
is unenforceable under Civil Code §1668.
Notably, it appears the parties agreed, during meet and confer, that an
FACC was appropriate and would limit the claims stated; however, no such FACC
was ever filed, and the City does not concede those issues in its opposition to
the demurrer.
On August 2, 2022, Plaintiff filed a
Declaration from her attorney of record, Peter Goldstein, which details an
attempt of both parties to address the contents of the demurrer. Per the
declaration, both parties believe that
both of their arguments were sufficiently outlined in the moving papers, opposition,
and reply. Additionally, both parties have discussed the issue of waiver and do
not believe supplemental arguments are necessary to file with this court.
Based on the foregoing, this Court
finds that both parties have complied with the meet and confer requirement pursuant
CCP §430.41(a) and arguments of this demurrer shall be heard on its merits.
In this case, Plaintiff seeks
damages against Defendant for a dog bite.
Defendant’s FAA includes affirmative defenses stating that Plaintiff is responsible
for her own damages, that she assumed the risk of the damages, and that she is barred
from seeking damages per her signature on the waiver agreement. If Defendant is successful in connection with
those affirmative defenses, the cross-complaint will be entirely moot. As part of the main action, the jury will be
asked to determine (a) whether Plaintiff is barred from bringing her claims,
and (b) whether Plaintiff was responsible, in whole or in part, for her own
damages, such that liability should be denied or proportionately limited.
It appears the City’s position is
that the release agreement would require Plaintiff to pay Defendant’s attorneys’
fees if Defendant successfully defends the action. It is not, however, clear why this needs to
be the subject of a cross-complaint.
Defendant can assert a prayer for attorneys’ fees in its answer, and can
make a motion for attorneys’ fees pursuant to contract if it prevails in the
action.
The parties must meet and confer
concerning whether the cross-complaint is necessary or proper under the circumstances. If they agree that it is necessary and
proper, they must meet and confer concerning whether the causes of action could
be limited, as they proposed during prior meet and confer correspondence.
The more difficult issue is the
release and waiver agreement. Plaintiff argues
it is unenforceable for three reasons, which include (1) Civil Code §1668, (2) public
policy, and (3) unconscionability. §1668
voids any exculpatory contract which purports to exempt a defendant from
liability for its “violation of law.”
Plaintiff argues she has set forth a variety of statutes that impose liability
on Defendant, and therefore she is seeking damages against Defendant for a “violation
of law.” Defendant, in opposition,
argues the various statutes cited in the complaint are procedural statutes in the
government code that render a public entity liable or not liable for
negligence, but which do not create “violations of law” in the sense contemplated
by §1668. While neither party cites any
case directly on point, the Court tends to agree with Defendant; these are not
statutes that create obligations to do or not to a specific thing, but instead mechanisms
for determining whether and when a public entity is liable for its employee’s or
its own negligence.
The Court is also not inclined to
find in Plaintiff’s favor in connection with the public policy and/or
unconscionability arguments. There is
nothing so blatantly objectionable about allowing a public entity to require a
volunteer to sign a waiver agreement prior to working with shelter animals as
to shock the conscience or otherwise be improper as a matter of law. No person is forced to work in an animal
shelter, and persons choose to do so while accepting the risks. At best, these are jury issues and not
pleading issues.
With the above guidance in mind,
Counsel was ordered to meet and confer and file a supporting memorandum of
points and authorities. The meet and confer declaration, filed August 2, 2022, addressed
the issue of indemnity and waiver, however, neither party was able to determine
whether or not Defendant’s cross-complaint was necessary and proper, and no
accompanying memorandum of points and authorities was filed. (Decl. of Goldstein
p. 1). Because this issue remains unresolved,
Defendant must file an accompanying
memorandum of points and authorities to support the merits of filing a cross-complaint.
3. CMC
and TSC
At present, a CMC and TSC are scheduled
for 8/23/22 at 8:30 a.m., to be heard contemporaneously with the continued
hearing on the demurrer. However, the
hearing on the demurrer is continued pending Plaintiff’s submission of an
accompanying memorandum of points and authorities to support the merits of
filing a cross-complaint. Therefore, this
hearing is continued from 8/23/22 to 9/20/22 to allow Defendant to submit supplemental
paperwork. The Court notes that the case has been pending since 12/07/18, and the
Court is hopeful it can be set for trial in the near future.
Plaintiff is ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. 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. 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
the parties do not submit on the tentative, they should arrange to appear remotely.