Judge: Michael E. Whitaker, Case: 22STCV33143, Date: 2023-03-13 Tentative Ruling

Case Number: 22STCV33143    Hearing Date: March 13, 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 Andrew Saldivar (Plaintiff) sued Defendant Los Angeles County Metropolitan Transportation Authority (LACMTA) based on injuries Plaintiff alleges he sustained in an auto versus pedestrian collision.  LACMTA demurs to the First Amended Complaint (FAC) in its entirety, which contains one claim of motor vehicle negligence, and three claims of general negligence.  LACMTA further moves to strike portions of the FAC.  Plaintiff opposes the demurrer and motion to strike.  LACMTA 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.)

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, LACMTA argues that Plaintiff fails to assert a statutory basis for all four 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.     MOTION TO STRIKE

As the Court has already sustained LACMTA’s demurrer to the entire FAC for Plaintiff’s failure to assert a statutory basis for his motor vehicle negligence claim, and three general negligence claims, the Court finds LACMTA’s motion to strike to be moot.

3.     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. 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, the burden is on Plaintiff to establish that the operative complaint can be amended successfully.  The Court finds Plaintiff has met his burden by citing to at least one statute, California Government Code, section 815.2, subdivision (a), which if alleged against LACMTA,  may establish a statutory basis for liability.

CONCLUSION AND ORDER

Therefore, the Court sustains LACMTA’s demurrer to Plaintiffs’ FAC with leave to amend, and orders Plaintiff to file and serve an amended complaint in conformance with the Court’s ruling on or before April 3, 2023.  The Court denies LACMTA’s motion to strike as moot.

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