Judge: Michael E. Whitaker, Case: 23SMCV02781, Date: 2023-10-04 Tentative Ruling

Case Number: 23SMCV02781    Hearing Date: October 4, 2023    Dept: 207

TENTATIVE RULING

MOTION

Plaintiff Hunter Nation aka Milo Senaca (“Plaintiff”) alleges the Santa Monica Police Department (“Defendant”) committed an intentional tort by failing to maintain the emergency phone system along Santa Monica beach, causing him emotional distress.  (See Complaint.) 

Defendant demurs to the Complaint for uncertainty and failure to state a cause of action, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), on the bases that (1) Plaintiff failed to first present his claim to the City of Santa Monica as required by Government Code section 945.6; (2) as a public entity, Defendant is not liable for any injury unless such liability is imposed by statute, pursuant to Government Code section 815; (3) Defendant is immune from liability under Government Code sections 818.2 and 845; and (4) Plaintiff has failed to allege extreme or outrageous conduct to support his claim for intentional infliction of emotional distress.  Defendant also moves to strike the punitive damages claims. 

Plaintiff opposes the demurrer,[1] and Defendant has replied.

MEET AND CONFER REQUIREMENT

            Code of Civil Procedure section 430.41, subdivision (a) requires that “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” 

The statute further requires “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.”  (Code Civ. Proc., § 430.41, subd. (a)(1).)  “The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.”  (Ibid.)

“The parties shall meet and confer at least five days before the date the responsive pleading is due.  (Code Civ. Proc. § 430.41, subd. (a)(2).)  “The demurring party shall file and serve with the demurrer a declaration stating either” the means by which the parties met and conferred, or that the party who filed the pleading subject to demurrer failed to respond to the meet and confer request.  (Id., subd. (a)(3).) 

            Here, Defendant contends that it has previously discussed the relevant issues with Plaintiff by email and by telephone on numerous occasions in connection with another case Plaintiff previously filed and dismissed against it pertaining to the same incident.  (Demurrer at p. 2:1-16; Brown Decl. ¶¶ 1-8.)  Defendant also contends that it emailed Plaintiff the bases for its demurrer in this case, and that Plaintiff responded, refusing to correct the deficiencies Defendant identified.  (Brown Decl. ¶¶ 4-9 and Exs. B-F thereto.)  Defendant has further indicated that Plaintiff has repeatedly called Defendant by telephone, and that those resulting conversations have been unproductive, and at times crude and harassing, resulting in Defendant requesting that all communications with Plaintiff be in writing.  (Ibid.) 

            The Court finds that under the circumstances presented, Defendant has met its meet and confer obligations prior to filing its demurrer and motion to strike.

ANALYSIS

1.      PRIOR DISMISSAL WITH PREJUDICE

Although the Defendant has not directly argued the issue of mootness as a result of the prior dismissal with prejudice as one of the bases for its demurrer, the Court finds that the briefing raises a threshold issue concerning the justiciability of this matter.  (See Demurrer at p. 5:22-24 [“At best, he alleges direct negligence, which is not recoverable against a public entity (Gov. Code. 815) and which is moot since he already filed a dismissal with prejudice alleging the same facts in the first lawsuit against the City.”])

“In its narrowest form, res judicata precludes parties or their privies from relitigating a cause of action finally resolved in a prior proceeding.”   (Smith v. ExxonMobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1413–1414 [cleaned up].)  “But res judicata also includes a broader principle, commonly termed collateral estoppel, under which an issue necessarily decided in prior litigation may be conclusively determined as against the parties thereto or their privies ... in a subsequent lawsuit on a different cause of action.”  (Id. at p. 1414.)  “Thus, res judicata does not merely bar relitigation of identical claims or causes of action.  Instead, in its collateral estoppel aspect, the doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case.”  (Ibid.)

For the purposes of applying the doctrine of res judicata, “a dismissal with prejudice is the equivalent of a final judgment on the merits[.]”  (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 793.)  Thus, “[A] dismissal with prejudice ... bars any future action on the same subject matter.”  (Ibid.)  “Dismissal with prejudice is determinative of the issues in the action and precludes the dismissing party from litigating those issues again.”  (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 820.) 

On its own motion, the Court takes judicial notice of the filings made in case number 23SMCV01811 as court records, pursuant to Evidence Code section 452, subdivision (d).  In that case, on April 27, 2023, Plaintiff filed a similar case against Defendant, alleging Defendant committed “General Negligence” due to “No or irregular maintenance of the Emergency Kiosk near 1200 Arizona (a beach bathroom)” and as a result “it was not of resource during a sexual assault (Exhibit A – Report 230036132).”  (See Case no. 23SMCV01811.)  On June 21, 2023, Plaintiff requested a dismissal of that case with prejudice, which the clerk granted on June 23, 2023. 

On June 22, 2023, Plaintiff filed this case against Defendant, alleging Defendant committed an “Intentional Tort” stemming from Defendant’s failure to maintain the emergency phone system along the Santa Monica beach.  Plaintiff alleges, “The police department utilizes emergency phones in public locations” (Complaint ¶ IT-1) and “As indicated by the emergency phone present on the beach, the Santa Monica Police Delartment [sic] has a duty to maintain the system by any means.  This was breached, resulting in distress as no emergency services were able to arrive the night of the incident.”  (Complaint at p. 2:13-16.)

Thus, the same issue of Defendant’s alleged failure to maintain the emergency phone kiosk system along Santa Monica beach, causing it to be inoperable on the night Plaintiff alleges he was sexually assaulted, was already raised and dismissed with prejudice in case number 23SMCV01811.  As such, Plaintiff is collaterally estopped from relitigating the same issue in this subsequent case, notwithstanding that Plaintiff changed the theory of liability from one of negligence to an intentional tort.

As such, the Court sustains Defendant’s demurrer for failure to state a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the basis that Plaintiff is collaterally estopped from relitigating issues already dismissed with prejudice in the prior case, (case number 23SMCV01811.)

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 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 not provided the Court with any proposed amendment.  Moreover, because Plaintiff is collaterally estopped from relitigating the issue of Defendant’s alleged failure to maintain the emergency phone kiosk system along Santa Monica beach, there are no facts Plaintiff could add to the complaint to cure this deficiency.  Therefore, the Court sustains the demurrer to the complaint without leave to amend.[2]

CONCLUSION AND ORDER

Therefore, the Court sustains Defendant’s demurrer to the complaint without leave to amend. 

Plaintiff shall file the opposition to the demurrer so that the case record is complete. 

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

DATED:  October 4, 2023                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court