Judge Michael E. Whitaker, Case Number: 22STCV33143, Date: 2023-06-20 Tentative Ruling

Judge: Michael E. Whitaker, Case: 22STCV33143, Date: 2023-06-20 Tentative Ruling

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.

Plaintiff Andrew Saldivar (Plaintiff) sued Defendant Los Angeles County Metropolitan Transportation Authority (LACMTA) based on injuries Plaintiff alleges he sustained in a vehicle versus pedestrian collision. LACMTA demurs to the Second Amended Complaint (SAC) which contains two general negligence claims: Second Cause of Action – General Negligence and Third Cause of Action – General Negligence. (See SAC, pp. 5 & 6.)

LACMTA further moves to strike portions of the SAC. Plaintiff has not filed an opposition to either the demurrer or motion to strike.

“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.)

LACMTA demurs to the First Cause of Action – Motor Vehicle Negligence on the grounds that Plaintiff fails to set forth a statutory basis for that claim. Notwithstanding, upon the Court’s review of Plaintiff’s SAC filed on April 3, 2023, the SAC does not include a First Cause of Action – Motor Vehicle Negligence. As such, the Court will overrule LACMTA demurrer to the first cause of action as not ripe. [1]

With regard to the second and third causes of action, LACMTA argues that Plaintiff fails to state causes of action because the claims are not plead with particularity. The Court agrees.

As to the second cause of action for general negligence, Plaintiff alleges, in relevant part, the following:

At the time and place aforesaid, Defendants LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY; DOE DRIVER; and DOES 1 to 50, inclusive and each of them, owed a duty of care to Plaintiff, but breached that duty of care by failing to use reasonable care to prevent harm to Plaintiff, thereby causing injury and damages to Plaintiff. Without limiting the generality of the foregoing, at the time and place aforesaid, Defendants LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY; DOE DRIVER; and DOES 1 to 50, inclusive and each of them so negligently, carelessly, recklessly, wantonly, and unlawfully drove, operated, maintained, conducted and controlled their motor vehicle so as to cause it to strike the Plaintiff.

As a direct and proximate result of Defendants' negligence, Plaintiff sustained injuries to his body and has been injured in his health, strength and physical activity. Plaintiff's injuries have caused and continue to cause mental, physical and emotional stress along with nervous pain and suffering. As a result of these injuries, Plaintiff has suffered general damages. As a further direct and proximate result of the Defendants' negligence, Plaintiff has incurred and will continue to incur special damages including but not limited to medical and related expenses. Plaintiff has also suffered loss of earnings, and loss of earning capacity due to his injuries.

Defendant DOE DRIVER's negligent actions as a public employee caused injuries to Plaintiff in violation of CA Gov. Code Section 820. Defendant LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, a public entity, is liable for the negligent actions of Defendant DOE DRIVER per CA Gov. Code Section 815.2(a).

(SAC, p. 5.) As to the third cause of action, Plaintiff alleges in relevant part the following:

Plaintiff was harmed because, on information and belief, Defendant LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY negligently permitted Defendant DOE DRIVER to use Defendant LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY'S vehicle. Defendant DOE DRIVER was negligent in operating the vehicle that struck Plaintiff’s vehicle causing damages to Plaintiff. Defendant LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY owned the vehicle operated by Defendant DOE DRIVER. On information and belief, Defendant LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY knew, or should have known, that Defendant DOE DRIVER was incompetent or unfit to drive the vehicle. Defendant LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY permitted Defendant DOE DRIVER to drive the vehicle. Defendant DOE DRIVER’s incompetence or unfitness to drive was a substantial factor in causing harm to Plaintiff.

Defendant LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, a public entity, is liable for the negligent actions of Defendant DOE DRIVER per CA Gov. Code Section 815.2(a) and CA Vehicle Code 17150.

Here, Plaintiff has pled the ultimate facts to state a cause of action for negligence. Ultimate facts are those “constituting the cause of action” or those upon which liability depends, e.g., duty of care, breach of the duty and causation (damages). (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) [2] Yet simply alleging ultimate facts against a public entity, which is what Plaintiff did herein, is inadequate. [3]

Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.

(Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [cleaned up]; but see

C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 [“Lopez does not stand for the proposition that a plaintiff must specifically plead, before undertaking discovery, the identity of a government employee whose alleged negligence is made the basis for vicarious liability under section 815.2”].) Stated differently, because the action involves a public entity, Plaintiff must plead material facts to state proper causes of action.

Therefore the Court will sustain in part LACMTA’s demurrer as to the second and third causes of action.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Based on the Court’s determinations on the demurrer to the first, second and third causes of action, the Court finds that LACMTA’s motion to strike is moot.

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 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].)

Here, Plaintiff has failed to file an opposition to the demurrer and thus has failed to meet his burden.

Therefore, the Court overrules in part LACMTA’s demurrer to the SAC as to the First Cause of Action – Motor Vehicle Negligence, and sustains LACMTA’s demurrer to the Second Cause of Action – General Negligence and Third Cause of Action – General Negligence without leave to amend.

Based upon the Court’s rulings on LACMTA’s demurrer, the Court denies LACMTA’s motion to strike as moot.

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

[1] “The concept of justiciability involves the intertwined criteria of ripeness and standing. Standing derives from the principle that every action must be prosecuted in the name of the real party in interest. A party lacks standing if it does not have an actual and substantial interest in, or would not be benefited or harmed by, the ultimate outcome of an action. Standing is a function not just of a party's stake in a case, but the degree of vigor or intensity with which the presents its arguments. Ripeness refers to the requirements of a current controversy. According to the Supreme Court, an action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law will not be entertained. A controversy becomes ripe once it reaches, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59 [cleaned up].)

[2] “[T]he term ultimate fact generally refers to a core fact, such as an essential element of a claim. Ultimate facts are distinguished from evidentiary facts and from legal conclusions.” (Central Valley General Hosp. v. Smith (2008) 162 Cal.App.4th 501, 513 [cleaned up]; see also Rodriguez v. Parivar, Inc. (2022) 83 Cal.App.5th 739, 750–751 [“The elements of a cause of action constitute the essential or ultimate facts in a civil case”].)

[3] “[J]udicial Council pleading forms are not demurrer-proof, while relevant, does not address directly to the adequacy of the allegations made in this case. We agree with the general principle that Judicial Council form complaints are not invulnerable to a demurrer. Conversely, Judicial Council form complaints do not always fail to state a cause of action and, thus, they are not necessarily susceptible to demurrer. The logical implication from these polar opposite principles is that use of a Judicial Council form complaint is not a determinative factor in deciding whether or not to sustain a demurrer. Instead, a reviewing court must examine the particular allegations in the form pleading and determine whether those allegations satisfy the pleading requirements established by California law.” (Esparza v. Kaweah Delta Dist. Hosp. (2016) 3 Cal.App.5th 547, 555 [cleaned up].)

DEPARTMENT	32
HEARING DATE	June 20, 2023
CASE NUMBER	22STCV33143
MOTIONS	Demurrer to Second Amended Complaint; Motion to Strike Portions of Second Amended Complaint
MOVING PARTY	Defendant Los Angeles County Metropolitan Transportation Authority
OPPOSING PARTY	None