Judge Michelle C. Kim, Case Number: 22STCV12731, Date: 2024-03-13 Tentative Ruling

Plaintiff Roberto Quintero (“Plaintiff”) filed this action against defendants, Daniel Andrew Olivier (“Olivier”), City of Compton (“the City”), County of Los Angeles, State of California, and Enterprise FM Trust for damages arising from an automobile incident. The complaint sets forth four causes of action for (1) general negligence, (2) motor vehicle negligence, (3) negligent hiring, training, and supervision, and (4) negligent entrustment of motor vehicle. Trial is set for April 24, 2024.

The City now moves for judgment on the pleadings on the grounds that it is not liable for common law torts except for those set forth by statute. Plaintiff opposes the motion. Any reply was due on or before March 6, 2024; none was filed.

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (C.C.P. §438(b)(1) and (c)(1)(B)(ii).)

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [Citations].) The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).)

Plaintiff contends the motion is untimely because the City is bringing a statutory motion under CCP § 438, as opposed to a common law motion for judgment on the pleadings. Unless the court orders otherwise, a statutory motion for judgment on the pleadings cannot be made after entry of pretrial conference order (CRC Rules 3.720-3.730) or 30 days before the initial trial date, whichever is later. (Code Civ. Proc., § 438(e).) Here, Plaintiff asserts that the matter was initially set for trial on January 19, 2024, but the motion was filed on December 22, 2023, which is less than 30 days before the initial trial date.

The City cites Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650 for the proposition that “‘[a] motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.’” While there are time limits for the motion brought pursuant to CCP section 438, there are no time limits for non-statutory common law motion for judgment on the pleadings. (Id. at 650; Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 585-86.) However, as Plaintiff observes, the City has brought a statutory motion for judgment on the pleadings pursuant to CCP § 438. The City’s quoted part of Stoops merely quotes and cites Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877 in passing when reciting the standard of review for a motion for judgment on the pleadings. There is no indication that the motion in Stoops was a common law motion for judgment on the pleadings, and “ ‘ “cases are not authority for propositions not considered.” ’ ” (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11.) As cautioned in Tung v. Chicago Title Company (2021) 63 Cal.App.5th 734, “Even if nonstatutory motions for judgment on the pleadings are still viable postsection 438…trial judges should think twice before becoming ensnared in addressing them on the merits on the eve of trial where, especially like here, the operative pleading has never been challenged before.” (Id. at 758-759.)

In this case, the City attacks both the legal basis for Plaintiff’s causes of action, and the sufficiency of the factual allegations for punitive damages. As the Court of Appeal explained in Cordova v. 21st Century Ins. Co. (2005) 129 Cal.App.4th 89, “It has long been the rule in this state that when a defendant’s motion for summary judgment depends on the untenability of the plaintiff’s case as pleaded and not on extrinsic evidence negating an element or proving an affirmative defense it may be treated as a common law motion for judgment on the pleadings.” In terms of whether the complaint sufficiently pleads a claim for punitive damages, the Court will not consider the City’s arguments raised now, on the eve of trial, after the City had ample time to either bring a demurrer or a timely statutory motion for judgment on the pleadings. However, because the City’s contention that it is not liable for common law torts goes to the tenability of Plaintiff’s case, the Court will exercise its discretion and consider only this portion of the motion for judgment on the pleadings as a common law motion. Regardless of timeliness, “Granting leave to file an untimely motion for judgment on the pleadings is a matter in the trial court's discretion to control litigation before it.” (Sutherland v. City of Fort Bragg (2000) 86 Cal. App. 4th 13 fn. 4 [citing to Code of Civil Procedure section 438, subdivision (e)—authorizes the trial court to permit late filings of such motions and does not specify any grounds which might serve to limit its power to do so].) The City’s remaining arguments attacking the factual allegations are untimely, and the Court will not consider those arguments raised now for the first time on the merits.

“Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (CCP § 439(a).)

Here, the City’s counsel conclusory declares that he attempted to meet and confer with Plaintiff’s counsel, and the parties were unable to reach a resolution. (Mot. Westmoreland ¶ 6.) However, Plaintiff avers that rather than meeting and conferring in good faith, the City’s counsel emailed on December 20, 2023 that the Complaint’s allegations were insufficient, and demanded Plaintiff dismiss the action by December 22, 2023, or that the City would file this motion. (Opp. Jones Decl. ¶ 8; Exh. 2.) Two days later, the City filed its motion. The Court finds that the City did not attempt to meet and confer in good faith.

Nonetheless, an insufficient meet and confer process is not grounds to grant or deny a motion for judgment on the pleadings. (CCP § 439(a)(4).)

The City argues Plaintiff has failed to allege any statutory authority to maintain his causes of action against it. Except as otherwise provided by statute, “[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.” (Gov. Code § 815(a).) “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.) Consequently, “public entities may be liable only if a statute declares them to be liable.” (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 (emphasis in the original). It has been established that there is no liability for California governmental entities in the absence of an express statute or constitutional provision creating or accepting liability. (Tolan v. State of California (1979) 100 Cal.App.3rd 980, 986.)

“Defendants owned and operated their vehicle negligently and carelessly, proximately causing property damage and personal injury to Plaintiff. Defendants owed Plaintiff a duty to exercise reasonable care in the operation of their vehicle. Defendant Daniel Andrew Olivier was driving under the course and scope of employment at the time of the incident.”

Plaintiff does not allege any statutory basis to maintain a cause of action for negligence against the City. It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.) Plaintiff in opposition, avers that Gov. Code §§ 815 and 815.2(a) and Veh. Code § 17001 are applicable to hold a public entity liable for an act or omission of its employee, while in the scope of employment, in the operation of any motor vehicle. The Court agrees with Plaintiff that this defect is readily capable of cure.

Therefore, the motion as to the first cause of action is granted with leave to amend.

The form complaint alleges that Olivier operated the motor vehicle owned by the City of Compton, et al., and that defendants employed Olivier in the course and scope of his employment, who operated the vehicle with their permission. (Compl. at p. 6.) No statutory basis for liability against a public entity was alleged. However, as previously analyzed, this defect can be remedied.

Therefore, the motion as to the second cause of action is granted with leave to amend.

3. 3^rd C/A – Negligent Hiring, Training and Supervision & 4^th C/A – Negligent Entrustment of Motor Vehicle

Aside from not pleading a statutory basis, the City argues that the third and fourth causes of action are duplicative of each other and therefore should be dismissed.

“A claim that an employer was negligent in hiring or retaining an employee-driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver. (See CACI No. 426.) That same awareness underlies a claim for negligent entrustment. (See CACI No. 724.) In a typical case, like this, the two claims are functionally identical.” (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1157.)

Here, Plaintiff alleges the City was negligent and reckless in hiring Olivier, and that Olivier was unfit and incompetent to perform the work for which he was hired, including but not limited to competently driving a vehicle within the course and scope of his employment. (Compl. at p. 7.) In order to impose liability on City for its own negligence, Plaintiff must allege a violation of a statute imposing a direct duty on City. Even if the two causes of action for negligent hiring and entrustment are duplicative, as argued by the City, the Court will not consider the untimely argument.

Accordingly, the motion as to the third and fourth causes of action are granted with leave to amend to allow Plaintiff to plead statutory grounds for liability.

The City contends that it is exempt from liability for punitive damages, and that the complaint has failed to plead fraud, malice, or oppression by the City for it to be liable for punitive damages. The City has been a party to this action since November 29, 2022, yet failed to challenge the prayer for punitive damages until one year later, with trial to commence on April 24, 2024. The Court will neither permit nor consider this late argument.

(5) To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.

(8) To amend and control its process and orders so as to make them conform to law and justice.

Because the Court wishes to preserve the current trial date, defense counsel is ordered to accept electronic service of the amended complaint.

Regarding the request to shorten time on filing an Answer, pursuant to CCP § 471.5:

(a) If the complaint is amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby. The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases. For the purposes of this subdivision, “complaint” includes a cross-complaint, and “defendant” includes a person against whom a cross-complaint is filed.

For the purposes of preserving the current trial date, the Court directs defendant to answer the amended complaint within fifteen (15) days of service of the amended complaint.

The motion is granted with leave to amend to allow Plaintiff to plead a statutory basis of liability against the City. Plaintiff is granted five (5) days leave to amend.

Hon. Michelle C. Kim

Judge of the Superior Court