Judge: Michael E. Whitaker, Case: 22STCV28152, Date: 2023-01-24 Tentative Ruling

Case Number: 22STCV28152    Hearing Date: January 24, 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

MOTION

Plaintiff Siavash Alikhanlou (Plaintiff) sued Defendant Los Angeles County Metropolitan Transportation Authority (Defendant) based on injuries Plaintiff alleges she sustained during an incident at a railroad crossing.  Defendant demurs to the first cause of action asserted in the Plaintiff’s First Amended Complaint (FAC).  Plaintiff opposes the demurer.  Defendant replies.

ANALYSIS

1. DEMRURRER

“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.)

Defendant argues that Plaintiff’s first cause of action for negligence fails to state facts sufficient to constitute a cause of action, is uncertain, and is duplicative of the second cause of action for premises liability. 

1. UNCERTAINTY

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

Here, Defendant fails to articulate how the first cause of action is uncertain.  Nevertheless, the Court finds Plaintiff’s allegations in the first amended complaint are clear enough that Defendant can reasonably determine what issues must be admitted or denied, or what claims are directed against it.  Accordingly, on this basis, the Court will overrule the demurrer. 

1. DUPLICATION

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.)

Plaintiff’s first cause of action for general negligence cites in part to Government Code section 815.2 which states that "a public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative", as well as Government Code section 830, as a basis for Defendant’s liability.  The crux of the first cause of action against Defendant is the following:

DEFENDANTS, inclusive of Los Angeles County Metropolitan Transportation Authority and its employees, agents, and independent contractors acting within the course and scope of their employment were negligent, and breached their respective duties owed to Plaintiff in the following ways:

(a) by creating and permitting to exist a known dangerous condition of public property; (b) by negligently failing to timely and properly maintain, manage, repair, and/or monitor the Railroad Crossing Controls;

(c) by negligently failing to conduct adequate, reasonably prompt, proper, effective, and/or frequent inspections of the Railroad Crossing Controls;

(d) by negligently failing to design, construct, monitor, and/or maintain the Railroad Crossing Controls; and

(e) by negligently failing to take reasonable precautions to protect the public and property at large against the foreseeable risk of harm resulting from their creation of a dangerous condition on public property.

DEFENDANTS, inclusive of Los Angeles County Metropolitan Transportation Authority and its employees, agents, and independent contractors failed to maintain the Railroad Crossing Controls through which the DEFENDANT(S), and each of them, knew, or in the exercise of reasonable care should have known, constituted a dangerous condition and unreasonable risk of harm of which Plaintiff was at all times herein mentioned unaware.

As a proximate result of the negligence of DEFENDANTS, inclusive of Los Angeles County Metropolitan Transportation Authority and its employees, agents, and independent contractors acting within the course and scope of their employment, Plaintiff suffered severe injuries and other damages alleged herein, when the Railroad Crossing Controls failed to operate and caused this accident involving Plaintiff.

(FAC, p. 4.)

Plaintiff is generally entitled to plead in the alternative.  (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.)  However, the Court finds in this instance that the first and second causes of action allege the same duty owed by Defendant to Plaintiff:

Under California Government Code Section 830 et seq., DEFENDANTS, inclusive of Los Angeles County Metropolitan Transportation Authority and its employees, agents, and independent contractors, at all relevant times herein alleged, had a mandatory duty not to create or permit to exist a dangerous condition of public property. The inoperative Railroad Crossing Controls constituted a condition creating a substantial and unreasonable risk of death or serious bodily harm when the property and/or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used by Plaintiff and others motor vehicle operators, as well as pedestrians. The dangerous character of the inoperative Railroad Crossing Controls was not reasonably apparent to, and would not have been anticipated by, a mature, reasonable person using the property with due care. DEFENDANTS, inclusive of Los Angeles County Metropolitan Transportation Authority and its employees, agents and independent contractors had actual knowledge of the dangerous condition of this public property and knew or should have known of its dangerous character a sufficient time prior to the Plaintiff's injury to have taken measures to protect against the condition. 

(FAC, pp. 4-5; see also FAC, Counts 1 & 3, p. 5.)  In opposition, Plaintiff contends that the following allegations make the first cause of action distinct from the second cause of action. 

Los Angeles County Metropolitan Authority and its employees

agents, and independent contractors acting within the course and scope of their employment were negligent and breached their respective duties in the following ways: (a) by creating and permitting to exist a known dangerous condition of public property; (b) by negligently failing to timely and properly maintain, manage, repair, and/or monitor the Railroad Crossing Controls; (c) by negligently failing to conduct adequate, reasonably prompt, proper, effective, and/or frequent inspections of the Railroad Crossing Controls; (d) by negligently failing to design, construct, monitor, and/or maintain the Railroad Crossing Controls; and (e) by negligently failing to take reasonable precautions to protect the public and property at large against the foreseeable risk of harm resulting from their creation of a dangerous condition on public property.

(FAC, p. 4.)  At best, the Court finds the distinctions are without any difference.  The allegations noted by Plaintiff centers on Defendant allegedly creating a dangerous condition of public property – the faulty Railroad Crossing Controls – which are duplicative of what is alleged concerning the second cause of action. 

            Thus, the first cause of action for negligence “adds nothing to the complaint by way of fact or theory of recovery.”  (See Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501; see also Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [duplicative causes of action are a basis for sustaining a demurrer]; but see Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 [finding that duplication is not grounds for demurrer and that a motion to strike is the proper way to address duplicative material].)

1. LEAVE TO AMEND

Plaintiff has have the burden of showing in what manner the amended 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.)  The 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].) 

Here, in the opposition to the demurrer, Plaintiff does not address how the FAC can be amended to cure any deficiency with the first cause of action.  Consequently, the Court finds that Plaintiff has not met the requisite burden for granting leave to amend.

CONCLUSION AND ORDER

Therefore, the Court sustains Defendant’s demurrer to Plaintiff’s first cause of action for negligence without leave to amend.  Defendant shall file and serve an answer to the FAC within 20 days of the hearing on the demurrer. 

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