Judge: Peter A. Hernandez, Case: 20STCV24771, Date: 2022-10-27 Tentative Ruling

Case Number: 20STCV24771    Hearing Date: October 27, 2022    Dept: O

Defendant County’s Motion for Judgment on the Pleadings is DENIED as to the first, third, sixth, and seventh causes of action.

Defendant County’s Motion for Judgment on the Pleadings is GRANTED as to the second cause of action with leave to amend and as to the third cause of action concerning Plaintiff Evangelina Hernandez, individually, without leave to amend.

BACKGROUND

The matter arises out of the death of Noah Cuatro (“Noah”) resulting from the alleged failure of defendants County of Los Angeles (“Defendant County”) and Hathaway-Sycamores Child and Family Services’ (“Defendant Hathaway”) failure to remove Cuatro from his parents’ custody. This action is brought by A.C., E.C., R.C. (“minor Plaintiffs”), siblings of Noah, and Evangelia Hernandez (“Hernandez”), grandmother of Noah and guardian ad litem of minor Plaintiffs. The initial complaint was filed on July 1, 2020. After three demurrers were sustained as to Defendant Hathaway, the operative Third Amended Complaint (“TAC”) was filed on September 20, 2021.

            The TAC asserts causes of action for:      

1.      Wrongful Death against Defendant County

2.      Failure to Warn against Defendant County

3.      Wrongful Death – Negligent Retention & Supervision against Defendant County

4.      Wrongful Death – Negligence, against Defendant Hathaway

5.      Survival Action – Negligence against Defendant Hathaway

6.      Survival Action – Negligence against Defendant County

7.      Wrongful Death – Negligence against Does 31-60

The Court sustained Defendant Hathaway’s Demurrer as to the TAC and entered judgment against Plaintiffs in favor of Defendant Hathaway on January 26, 2022.

On October 5, 2022, Defendant County brought this Motion for Judgment on the Pleadings (“MJOP”).

ANALYSIS

Judicial Notice

Defendant County requests that the Court take Judicial Notice of four documents in this pending case, 20STCV24771: (1) Plaintiffs’ TAC (Exh. A); (2) Declaration of Plaintiff Hernandez filed pursuant to CCP § 377.32 (Exh. B); (3) the Court’s Order sustaining Defendant Hathaway’s Demurrer to Plaintiff’s TAC (Exh. C); and (4) the Court’s Order denying Plaintiff’s Motion for Trial Preference.

Defendant County’s Request for Judicial Notice is GRANTED as to all four items, pursuant to Cal. Evid. Code § 452(d). 

Legal Standard

A motion for judgment on the pleadings is the functional equivalent to a general demurrer. (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198.)  Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  The Court “must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.”  (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.) Courts must consider whether properly pled factual allegations—assumed to be true and liberally construed—are sufficient to constitute a cause of action.  (Stone Street Capital, LLC v. Cal. State Lottery Com'n (2008) 165 Cal.App.4th 109, 116.) 

Defendants move for judgment on the pleadings as to the first, second, third, sixth, and seventh causes of action. They allege that Plaintiffs do not have standing as to the first, third, sixth, and seventh causes of action. Additionally, they allege Plaintiffs have not sated sufficient facts to constitute a cause of action for the first, second, third, sixth and seventh cause of action.

Standing—Wrongful Death and Survival Actions

Defendant County argues that the first, third, sixth, and seventh causes of action fail because Plaintiffs do not have standing to assert wrongful death or survival actions. They argue that no Plaintiff in this case is the successor-in-interest nor personal representative of Noah’s estate because Noah’s parents are still alive.

Wrongful death and survival actions are statutory. CCP § 377.60(a) provides that a wrongful death action may be brought by any of the following persons: “decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.”

CCP § 377.30 provides that a survival action can only be brought by the decedent’s personal representative or, if none, by the decedent’s successor in interest. A successor in interest is the beneficiary of the decedent’s estate, which refers to the takers of assets that are or would be subject to probate. (CCP § 377.11.)

Pursuant to Probate Code § 6402, if there is no surviving spouse or children, the order of persons who would inherit by intestate succession are: (1) decedent’s parents, (2) the issue of decedent’s parents (including decedent’s siblings), (3) decedent’s grandparents. (4) the issue of decedent’s grandparents, (5) the issue of a predeceased spouse, and (6) next of kin. (Prob. Code § 6402.)

Probate Code § 250 states that “A person who feloniously and intentionally kills the decedent is not entitled to… any property of the decedent by intestate succession.” “A final judgment of conviction of felonious and intentional killing is conclusive… In the absence of a final judgment…the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this part. The burden of proof is on the party seeking to establish that the killing was felonious and intentional for the purposes of this part.” (Prob. Code § 254.) “The persons who may bring an action for wrongful death of the decedent and to benefit from the action are determined as if the killer had predeceased the decedent.” (Prob. Code § 258.)

Here, because Noah had no spouse or children, the right to bring a wrongful death and survival action presumably belongs to Noah’s parents, who are both alive. However, the minor Plaintiffs, Noah’s siblings, assert that they have standing because both of Noah’s parents have been charged with his murder. (TAC ¶ 90, 119.)

The TAC states that “four-year-old Noah Cuatro was murdered by his parents.” (TAC ¶ 14.) The complaint also states that the parents “have been indicted on murder and torture charges in connection with Noah’s death” after “hospital staff found signs of trauma on Noah’s body and determined there were issues and irregularities with his parents’ explanation for his cause of death.” (TAC ¶ 14-15.) The complaint also details numerous allegations of abuse by Noah’s parents. (See generally TAC.)

At a trial preference hearing, this Court denied Plaintiffs’ Motion for Trial Preference because Plaintiffs failed to establish by a preponderance of the evidence that Noah’s parents feloniously and intentionally killed him. (RJN Exh. D, 6:7-9.) “Judicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Fremont Indem. Co. v. Fremont Gen. Corp. (2007)148 Cal.App.4th 97, 113-114.) Even though the Court takes judicial notice of the existence of this Order, the court’s findings are not indisputably true for purposes of a judgment on the pleadings. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548.) At a motion for judgment on the pleadings, Plaintiffs are not required to make the same evidentiary showing required at the Motion for Trial Preference.

At a motion for judgment on the pleadings, the court must accept all properly plead allegations as true and the court does not consider the sufficiency of the evidence. The complaint explicitly asserts that Noah was murdered by his parents. Taking this as true, the parents then would not be able to bring a wrongful death or a survival action, and Noah’s siblings have standing pursuant to Prob. Code §§ 250, 254, 258, 6402. Requiring the Plaintiffs to prove that the parents feloniously and intentionally killed decedent by a preponderance of the evidence in order to survive a motion for judgment on the pleadings would shift the statutory burden for this motion. Defendants must challenge the sufficiency of the evidence through summary judgment or at trial. Thus, the Court finds that the Plaintiffs complaint is sufficient to allege standing.

The Court DENIES the MJOP as to the first, third, sixth, and seventh causes of action brought by the minor Plaintiffs.  

The Court sustains the MJOP as to the third cause of action brought individually by Plaintiff Hernandez without leave to amend. Hernandez has not alleged standing because the complaint clearly states that the minor Plaintiffs are successors in interest and that, at the time of Noah’s death, his parents were his legal guardians, not Hernandez. (TAC ¶ 2-4, 84.)

Failure to State a Claim

Defendant County asserts that the second cause of action for failure to warn fails to state sufficient facts to support a cause of action because Government Code § 815 bars tort claims against the County. The Government Claims Act states that “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.”  (Govt. Code § 815.)  As the Senate Legislative Committee explained in the comment to Government Code § 815, “the practical effect of this section is to eliminate any common law governmental liability for damages arising out of torts.”

Government Code § 815.6 imposes liability for injuries proximately caused by failure to discharge a mandatory duty without reasonable diligence. To plead a mandatory duty liability, a plaintiff must specifically allege liability in his or her complaint and identify the applicable statute or regulation that imposes the alleged mandatory duty. (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1349.)

Government Code § 815.2 imposes a duty of care on employees of the government acting within the scope of their duties. The plaintiff must allege facts establishing that one or more public employees owed a duty of care to the plaintiff and breached it. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1130.) Although generally a defendant owes no duty to control the¿conduct of another person or warn those endangered by that conduct, nevertheless a duty to do so may arise if there is a special relationship between the defendant and a third person that gives the third person a right to protection. (J.H. v. Los Angeles Unified School Dist.¿(2010) 183 Cal.App.4th 123, 141–142.)

In opposition, Plaintiff argues that Hernandez was Noah’s primary caregiver until 2019, and Hernandez was identified as a prospective adoptive parent. Plaintiff states that the County’s stated policy is to give notices of hearings to caregivers and interested parties, and that Hernandez was ready and willing to take Noah, but the County never notified Hernandez about the concerns for Noah’s safety, the petition to remove Noah, the order of removal, and the County’s ultimate decision not to remove Noah. Hernandez states that the failure to warn destroyed Hernandez’s visitation rights as well as her rights to notice under the law. These details are not alleged in the TAC.  

Here, Plaintiff Hernandez has not alleged sufficient facts to state a cause of action for failure to warn because the TAC fails to identify any statutory liability for the County, nor does the TAC allege a special relationship that would give rise to a duty of a County employee to warn Hernandez. The TAC states that Defendant “had a duty to warn and inform relative caregivers of the children in County of Los Angeles’ care and control… on known and knowable dangers posed to children.” (TAC ¶ 96.) However, it is not clear from the face of the complaint that Hernandez was a relative caregiver at the time of Noah’s death. Instead, the complaint states that “At the time of Noah’s death, his parents remained his legal guardians.” (TAC ¶ 84.) Thus, the TAC does not allege facts sufficient to show a statutory mandatory duty of the County to warn Hernandez, nor does it allege a proper special relationship that would give way for a duty to warn Hernandez.

The Court GRANTS Defendant’s MJOP as to the second cause of action for failure to warn with leave to amend.