Judge: Michael E. Whitaker, Case: 22STCV28113, Date: 2023-02-06 Tentative Ruling

Case Number: 22STCV28113    Hearing Date: February 6, 2023    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

MOTIONS

Plaintiff Alvin Daniel sued Defendants Raymond Ojeda, Jamal Leshun Daniels, and MV Transportation, Inc. based on a motor vehicle collision on August 21, 2021, and a bus accident on December 4, 2021, in which Plaintiff was injured while he was a passenger on a bus. 

Defendant MV Transportation, Inc. (MV) demurs to Plaintiff’s entire complaint, and further moves to strike the second cause of action for negligence.  Plaintiff opposes the demurrer and the motion to strike.  MV replies.

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.) 

1. Misjoinder

    

   MV demurrers to both the first and second causes of action for negligence arguing that Plaintiff is attempting to combine two completely separate and unrelated occurrences into one lawsuit.  Because each cause of action is based on a separate occurrence and brought against a separate defendant, MV concludes that the complaint is defective due to the improper misjoinder of parties who have zero concert of action or unity.

    

   Anyone who has a “claim, right, or interest adverse to them in the property or controversy which is the subject of the action” may be joined as defendant.  (Code Civ. Proc., § 379, subd. (a)(2).)  A demurrer for misjoinder will lie only where it appears from the face of the complaint or matters judicially noticeable that either plaintiffs lack sufficient unity of interest (Code Civ. Proc., § 378) or there is no common question of law or fact as to the defendants (Code Civ. Proc., § 379).  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 7:78.)

    

   The Complaint alleges the following for the first cause of action:

    

• Plaintiffs repeat, restate, and incorporate by reference the foregoing paragraphs of the complaint. 

• On August 21, 2021, while Plaintiff was attempting to make a left turn onto Hoover Street from West 52nd Street at Los Angeles, CA 90037, Defendant Raymond Ojeda, a motorcyclist escorting a funeral, passed traffic using the ride side of the road and collided with Plaintiff.

• Upon information and belief, Doe Defendants 1 through 10 negligently hired and retained Defendant Raymond Ojeda. Doe Defendants 11 through 25 are liable under the principle of respondeat superior as Defendant Raymond Ojeda was working for them and was acting within the scope of employment.

• As an actual and proximate result of said breach of duty of care, Plaintiff was injured according to proof, but in excess of $25,000.00.

   

  (Complaint, ¶¶ 9-12.)

   

              The Complaint alleges the following for the second cause of action:

   

• Plaintiffs repeat, restate, and incorporate by reference paragraphs 1 through 8 of the complaint.

• On December 4, 2021, Plaintiff was a passenger on Bus Number 15370 operated by MV Transportation, Inc.

• Said bus was driven by Jamal Leshun Daniels, who was employed by MV Transportation, Inc. and DOES 26 through 36, and was acting within the course of employment.

• As the bus reached Florence and Figueroa, Los Angeles, CA 90044, Defendant Jamal Leshun Daniels abruptly hit the brakes, so hard that it caused Plaintiff to fly through the windshield and almost lose his life.

• Defendants MV Transportation, Inc. and DOES 26 through 36 are liable under the principle of respondeat superior.

• Defendants Jamal Leshun Daniels and DOES 37 through 50 are liable because they failed to exercise the care that they owed to Plaintiff, including violating the applicable statutes of the California Vehicle Code.

• As an actual and proximate result of said breach of duty of care, Plaintiff was injured according to proof, but in excess of $25,000.00.

   

  (Complaint, ¶¶ 13-19

   

   The Court finds from the face of the complaint, that there is no common question of law or fact as to Defendant MV and Defendant Raymond Ojeda.  Accordingly, the Court shall sustain the demurrer as to the second cause of action of negligence against MV based on its misjoinder to the first cause of action which is based on a completely separate and unrelated occurrence. 

   

  As the Court has already demurred to the second cause of action in the Complaint, MV’s motion to strike the second cause of action is moot.

   

1. Leave to Amend

    

   The 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 a cause of action. (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. v Hulven Int'l, 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].)

    

   In opposition, Plaintiff argues that a demurrer upon the ground of improper joinder of causes of action should not be sustained without leave to amend when it appears that the defect can be cured by amendment.  (Lord v. Garland (1946) 27 Cal.2d 840, 853.)  Plaintiff respectfully seeks leave to file his proposed First Amended Complaint. 

    

   Additionally, Plaintiff advances the declaration of his attorney, Rabin Saidian (Counsel), who states that after researching the merits of Defendant’s position, he caused to be filed a separate complaint against MV, titled Daniel v. Daniels, et al., case number 23STCV00069.  (See Declaration, ¶ 2.)  The Court notes that Plaintiff alleges in the Daniels v. Daniels Complaint the same facts against MV, as was asserted in the second cause of action in the Complaint in this case.  Accordingly, the Court finds Plaintiff has met his burden in showing how the Complaint can be amended that would change its legal affect. 

    

CONCLUSION AND ORDER

Therefore, the Court sustains in part MV’s demurrer to the second cause of action of the Complaint, with leave to amend.  The Court denies MV’s motion to strike the second cause of action as moot.  The Court orders Plaintiff to file and serve an amended complaint in conformance with the Court’s ruling within 20 days of notice of the Court’s orders.

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