Judge: Michael E. Whitaker, Case: 21STCV40891, Date: 2022-12-07 Tentative Ruling

Case Number: 21STCV40891    Hearing Date: December 7, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Omni Zukkar King, Elizabeth Sanchez, Akiyah Alize-Uni King, and Maryjanne Miramontes (Plaintiffs), sued Defendants City of Los Angeles, State of California, County of Los Angeles, Bus Driver of Bus No. 3103 on D.O.I, and Metropolitan Transportation Authority (collectively, Defendants), based on injuries Plaintiffs allege they sustained due to Defendants alleged carelessness. 

Defendant, The People of the State of California, acting by and through the Department of Transportation (Demurring Defendant), demurs to the first cause of action for Motor Vehicle Negligence and the second cause of action for General Negligence.  Plaintiffs have not filed an opposition to the demurrer.

ANALYSIS

1. DEMURRER

    

   “It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

    

   Government Code section 815 provides that “[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” except as provided by statute.  (Gov. Code, § 815, subdivision (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)  “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)  To state a claim against a public entity, “every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.”  (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) 

    

   Here, Demurring Defendant argues that Plaintiffs fail to assert a statutory basis for both causes of action.  Upon review of the operative complaint, the Court finds that not every fact essential to the existence of statutory liability is pled with particularity, including the existence of a statutory duty.   

    

2. LEAVE TO AMEND

    

   A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state claim for negligence against the Demurring Defendant.  (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.)  A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim.  (See PGA West Residential Assn., Inc., supra, 14 Cal.App.5th at p. 189.)  Moreover, a plaintiff does not meet his or her  burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.”  (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) 

    

   Here, the burden is on Plaintiffs to establish that the operative complaint can be amended successfully.  However, Plaintiffs have failed to meet his burden by failing to oppose the demurrer. 

    

   CONCLUSION AND ORDER

    

   Therefore, the Court sustains Demurring Defendant’s demurrer to Plaintiffs’ Complaint (first and second causes of action) without leave to amend.

    

   Demurring Defendant shall provide notice of the Court’s ruling and file a proof of service of such.