Judge: Mark C. Kim, Case: 21STCV14469, Date: 2023-04-11 Tentative Ruling

Case Number: 21STCV14469    Hearing Date: April 11, 2023    Dept: S27

1.     Background Facts

Plaintiff, Donna Bailey filed this action against Defendants, Darelyne Heacock and Farmers and Merchants Trust Company for damages arising out of a landlord-tenant dispute.  Plaintiff’s operative First Amended Complaint contains numerous factual allegations, which will be discussed in more detail below.  The crux of the FAC is three-fold.  Plaintiff alleges (a) she is disabled, (b) she has ongoing disputes with Defendants about parking and use of a garage on the property, and (c) Heacock assaulted her in connection with one of these disputes. 

On 11/02/21, the Court heard Defendants’ demurrers and motions to strike directed at the FAC.  The Court sustained and granted the pleading challenges in part, and ordered Plaintiff to file an SAC.  Plaintiff filed her SAC on 11/19/21.  On 6/23/22, the Court heard Defendants’ demurrers and motions to strike directed at the SAC.  The Court sustained the demurrers as to the hostile environment harassment cause of action without leave to amend, deemed the motion to strike moot as to that cause of action, otherwise denied the motion to strike, and ordered Defendants to file an answer to the SAC with the hostile environment harassment cause of action deemed stricken. 

2.     Motion to Clarify

a.     Procedural History

Defendant filed an ex parte application to clarify the demurrer and motion to strike order on 2/08/23.  It filed an amended application on 2/09/23.  Plaintiff’s attorney filed a declaration in opposition to the application on 2/10/23.  The essence of the opposition was that there was no emergency to warrant ex parte relief; the opposition did not address the merits of the relief requested. 

The Court, on 2/15/23, issued an order granting the alternative request to shorten time for hearing on the motion.  The Court set the hearing on the motion for 4/11/23 and ordered Defendant to give notice.  Defendant gave notice the same day.

Any substantive opposition to the motion was due on or before 3/28/23.  The Court has not received substantive opposition to the motion. 

b.     Analysis

As relevant to this motion, Plaintiff’s FAC included causes of action for general negligence and negligent hiring and retention against F&M.  The Court overruled the demurrer to the general negligence cause of action, but sustained the demurrer to the negligent hiring and retention claim with conditional leave to amend.

Plaintiff’s SAC included causes of action for hostile environment harassment and general negligence against F&M.  The Court sustained the demurrer to the harassment cause of action without leave to amend, leaving only the negligence cause of action against F&M. 

As mediation, Plaintiff took the position that her negligence cause of action encompassed a claim for negligent hiring and retention against F&M.  Plaintiff took this position despite the fact that the Court previously sustained a demurrer to the cause of action for negligent hiring and retention, and granted leave to amend if and only if Plaintiff could allege specific prior violent acts on the part of Heacock and prior knowledge of such violent acts on the part of F&M.  Plaintiff did not do so. 

F&M seeks clarification of the prior order to establish, between the parties, that claims for negligent hiring and retention are not at issue in the litigation.  F&M adequately showed that no claim for negligent hiring and retention survives at this point in the action, because Plaintiff did not amend in compliance with the Court’s order on the demurrer to the FAC.  In light of the lack of opposition, the motion to clarify is granted.  All references to hiring and retention are stricken from the SAC, and the parties will proceed in litigation without any such claims pending between them. 

F&M 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 any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.