Janis Lazos v. Southern California Regional Rail Authority, et al. (24STCV17629)

 

1.               Defendant Union Pacific Railroad Company’s Motion to Abate Action, or in the alternative, Join Necessary Parties is DENIED in part as to abatement and GRANTED in part as to joining a necessary party.

 

2.               Defendant Union Pacific Railroad Company’s Motion to Strike is DENIED in part and GRANTED in part.

 

The court will inquire at the hearing whether leave to amend should be granted.

 

Background

 

Plaintiff Janis Lazos (“Plaintiff”) alleges as follows:

 

On January 24, 2024, Plaintiff’s 14-year old son, Raymond Patrick Paskel (“Decedent”), was struck and killed by a train and cars owned by Union Pacific Railroad Company in El Monte, California.

 

The Governor’s Office Emergency Services posted a tweet stating that the accident occurred at around 9:00 a.m. near Arden Drive and Railroad Drive, and the city’s fire and police departments responded.

 

It was reported that a burglary was in process on the train and of suspicious behavior at the train, but the train was not stopped.

 

Plaintiff was not present at the train track. Plaintiff filed a missing person juvenile report of Decedent at 7:40 p.m. on January 24, 2024 and Plaintiff identified a photo of the Decedent at 9:00 p.m. on January 24, 2024.

 

On July 16, 2024, Plaintiff filed a complaint asserting causes of action against Defendants Southern California Regional Rail Authority, Los Angeles County Metropolitan Transportation Authority, Union Pacific Railroad Company (“Union”), and Does 1-50 for:

 

1.                Negligence, Premises Liability, and Gross Negligence – Wrongful Death;

2.               Negligence Per Se – Wrongful Death;

3.               Negligent Selection, Inspection, and Supervision;

4.               Survival Action; and

5.               Dangerous Condition and Failure to Warn of Dangerous Conditions.

 

On August 27, 2024, Defendant Los Angeles County Metropolitan Transportation Authority (“MTA”) filed their answer to Plaintiff’s complaint.

 

On August 29, 2024, Defendant Union Pacific Railroad Company (“Union”) filed this Motion to Join a Necessary Party and Motion to Strike. On October 4, 2024, Plaintiff filed her oppositions to Union’s motions. On October 10, 2024, Union has filed replies to Plaintiff’s oppositions.

 

1.               Defendant Union Pacific Railroad Company’s Motion To Join A Necessary Party

 

Legal Standard

“Necessary” parties are defined under Code of Civil Procedure section 389(a):

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. 

“Code of Civil Procedure section 389 limits compulsory joinder to those situations where the absence of a person may result in substantial prejudice to that person or to the parties already before the court.” (Morrical v. Rogers (2013) 220 Cal.App.4th 438, 461.)

A determination that a person is a necessary party under section 389(a) is the predicate for the determination whether he or she is an indispensable party under section 389(b). (Dreamweaver Andalusians, LLC v. Prudential Ins. Co. of America (2015) 234 Cal.App.4th 1168, 1173.) A “necessary” party only becomes “indispensable” if the court undertakes the analysis set forth under section 389(b) and determines that the action cannot proceed without that party. (City of San Diego v. San Diego City Employees' Retirement System (2010) 186 Cal.App.4th 69, 83-84.) “The term ‘indispensable’ actually is a conclusion that, absent joinder of the party in question, the case must be dismissed.” (Edmon and Kernow, Cal. Prac. Guide: CPBT (Rutter Group 2020), ¶2:155.)

“Whether a party is necessary and/or indispensable is a matter of trial court discretion in which the court weighs ‘factors of practical realities and other considerations.” (City of San Diego v. San Diego City Employees' Retirement System (2010) 186 Cal.App.4th 69, 84.) “For example, where existing and absent parties' interests are sufficiently aligned such that the absent party's rights will not be affected or impaired by the judgment or proceeding, the absent party need not be joined.” (Ibid.)

B.        Discussion

 

Union moves the court to issue an order abating the instant action until Decedent’s natural father, Shunta Paskel (“Shunta”), is joined in this action either as a plaintiff pursuant to Code of Civil Procedure section 389 or as a nominal defendant pursuant to Code of Civil Procedure section 382. (Motion to Join, 3:7-13.)

Union argues that an heir who brings a wrongful death action has a duty to join all known heirs in a single action. (Id., 3:24-28, 4:1-15.) Union contends that Decedent was a minor at the time of the accident who had never been married and does not have any surviving issues. (Ibid.) Union argues that Shunta has standing to bring a wrongful death claim as the natural father of Decedent making Shunta a necessary party in this wrongful death action and Plaintiff had a duty to ensure that Shunta is properly joined under Code of Civil Procedure section 377.60. (Ibid.)

As such, Union argues that this action should be abated until Shunta is joined or that the court order that Shunta  be joined as a party to this action in order to prevent potential double recovery from Union and to promote judicial economy. (Id., at 3-6.)

In opposition, Plaintiff argues that Union’s request for abatement must be raised by special demurrer pursuant to Code of Civil Procedure section 430.10(b), by answer, or Union’s request is waived. (Opp., at 2.) Plaintiff contends that since Union’s motion was procedurally improper, it should be denied. (Ibid.) Additionally, Plaintiff argues that even if Union’s motion was procedurally proper, Plaintiff will seek a stipulation from Union or request leave to cure the issue by joining Shunta as an heir and nominal party, and assign Plaintiff as the Decedent’s personal representative on behalf of the heirs. (Id., at 2.) Plaintiff contends that Plaintiff’s proposal is allowed and preferable under the circumstances since Shunta is not willing to join as a plaintiff. (Id., at 2.)

 

In reply, Union argues that Code of Civil Procedure section 430.10(b) is not relevant here since Union does not claim that Plaintiff does not have legal capacity to sue. (Reply, at 1.) Union contends that Union properly moved for abatement or to have all necessary parties joined under Adams v. Superior Court (2011) 196 Cal.App.4th 71, 77 and Salmon v. Rathjens (1907) 152 Cal. 290, 295 which held that a defendant is entitled to move to abate an action where all heirs are not joined in a wrongful death suit. (Id., 2:4-11.)

 

“The wrongful death statute is ‘a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action.’” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 807 [quoting Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 692].) While a nonjoined heir is not an ‘indispensable party’ to a wrongful death action, omitted heirs are ‘necessary parties’ such that “plaintiff heirs have a mandatory duty to join all known omitted heirs in the ‘single action’ for wrongful death.” (Id. at 808.) “If an heir refuses to participate in the suit as a plaintiff, he or she may be named as a defendant so that all heirs are before the court in the same action.” (Id.) “Defendants facing a wrongful death action in which all the heirs should have, but have not, been joined are entitled to move to abate the action.” (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 77.) Heirs need not be joined if the wrongful death action is brought by the personal representative of the decedent. (Id. at 77-78.)

 

The court finds that Shunta must be joined as a party to this action. Since Plaintiff proposes appropriate methods to cure the lack of joinder of the necessary party, abatement of this action would be inappropriate. Thus, the court orders that Shunta be joined as a plaintiff, or if he refuses to participate as a plaintiff, then as a defendant. The court will inquire at the hearing whether alternative methods to joining Shunta could cure the current defect.

 

The motion is denied in part and granted in part.

 

2.               Defendant Union Pacific Railroad Company’s Motion To Strike

 

A.              Legal Standard

 

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

 

B.              Discussion

 

Union moves to strike the following portions of Plaintiff’s complaint:

 

1.               References to, and the prayer for, punitive/exemplary damages in paragraph 25 of Plaintiff’s complaint and paragraph 8 in Plaintiff’s prayer for relief;

2.               Plaintiff’s Second Cause of Action for Negligence Per Se; and

3.               Plaintiff’s Fourth Cause of Action for Survival Action.

 

1.               Punitive and Exemplary Damages

 

Punitive damages may be awarded in an action for the breach of an obligation not arising from contract upon clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).)

 

“Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294, subd. (c)(1).) “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294, subd. (c)(2).) “Fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294, subd. (c)(3).)

 

Union argues that Plaintiff’s request for punitive or exemplary damages should be stricken since they are not recoverable in wrongful death actions. (MTS, 3:23-28.) Additionally, Union argues that since Plaintiff does not allege that Union acted with oppression, fraud, or malice but instead alleges that Union was grossly negligent. (Id., 4:1-5.)

 

In opposition, Plaintiff argues that Plaintiff pled that Union was aware of the probable dangerous consequences of its conduct and failed to avoid those consequences. (Opp., 4:21-22, 5:1-9.) Plaintiff also argues that Plaintiff also pled that Union’s conduct was reckless and indifferent. (Id., 5:1-9; Compl. ¶¶ 24, 32.) Plaintiff also alleges that there were dangerous conditions and consequences. (Id., 5:1-9; Compl. ¶¶ 46, 56.)

 

In reply, Union reaffirms the same arguments made in its moving papers that (1) Plaintiff cannot recover punitive damages for the wrongful death cause of action, (2) Plaintiff did not allege sufficient facts to support an award for punitive damages, and (3) since Plaintiff’s survival action is subject to strike, Plaintiff’s demand for punitive damages has no basis to remain. (Reply, 2:16-28, 3:1-28, 4:1-28.)  Union requests that at a minimum, paragraph 25 of Plaintiff’s complaint should be stricken because Plaintiff expressly claims she is entitled to punitive damages as part of her wrongful death cause of action. (Id., 4:22-25.)

 

The court agrees that punitive damages are not recoverable for a wrongful death cause of action. Punitive damages are not available in a statutory wrongful death action. (Code Civ. Proc. § 377.34; Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 796-797; Ford Motor Company v. Superior Court (1981) 120 Cal.App.3d 748, 751.) Moreover, Plaintiff’s complaint pleads that Union had notice of the dangerous conditions of the train, yet failed to abate them, disregarding the impact on Decedent. (Compl., ¶¶ 25, 32, 20, 51.) As Union points out, the most Union’s alleged conduct amounts to is negligence, for which punitive damages are not warranted. Finding that Plaintiff’s complaint fails to allege facts sufficient for a punitive damages request, the court grants Union’s Motion to Strike portions pertaining to or seeking punitive damages.

 

2.               Negligence Per Se

 

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.) 

 

Union argues that Plaintiff asserts a second cause of action for negligence per se against Defendants on the basis that Defendants breached duties imposed by the Code of Federal Regulations. (MTS, 6:7-22.) Union argues that Plaintiff’s contention that Defendants violated statutory duties does not provide Plaintiff the ability to bring an independent cause of action for negligence per se but instead Plaintiff should assert negligence per se to support her first cause of action for negligence. (Ibid.)

 

In opposition, Plaintiff argues that Plaintiff’s complaint incorporated negligence per se in her causes of action for general negligence and wrongful death causes of action as an alternative theory of liability. (Opp., 6:1-17.) Plaintiff concedes that some California authority holds that  negligence per se is not a standalone cause of action, but Plaintiff also argues that other authority suggest the opposite. (Ibid.) Notwithstanding, Plaintiff argues that Plaintiff is entitled to plead negligence per se as a theory. (Ibid.) As such, Plaintiff argues that to the extend the court rules that negligence per se is not a separate cause of action, the court should only strike lines 17-19 of page 7 of Plaintiff’s complaint: “SECOND CAUSE OF ACTION BY LAZOS AGAINST DEFENDANTS METROLINK, MTA, AND UNION PACIFIC (NEGLIGENCE PER SE – WRONGFUL DEATH).” (Ibid; Compl. 7:17-19.) Plaintiff argues that the subsequent allegations in should be treated as theories tied to the first cause of action for negligence. (Ibid.)

 

In reply, Union continues to argue that negligence per se provides support of Plaintiff’s claim for negligence but cannot be raised as a separate cause of action. (Reply, 5:1-13.)

 

To the extent Plaintiff alleges negligence per se as a separate cause of action, the court grants Union’s motion. However, Plaintiff’s allegations as to negligence per se may remain in the pleading to the extent Plaintiff intends to rely on the doctrine of negligence per se to prove her underlying negligence cause of action.

 

The motion is granted.

 

3.               Survival Action

 

A survival action may be prosecuted by the estate’s executor or administrator or by the victim’s successor in interest. (Williams v. The Pep Boys Manny Moe & Jack of California (2018) 27 Cal.App.5th 225, 236.) Code of Civil Procedure, section 377.34, which provides: “In an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” (Code Civ. Proc., § 377.34(a).)

 

Union contends that Code of Civil Procedure section 377.30 states that a survival action may be commenced by a decedent’s personal representative or, if none, by decedent’s successor in interest. (MTS, at 7.) Union argues that Plaintiff’s complaint fails to establish that Plaintiff has standing to bring a survival action since it lists Plaintiff as an individual and not a personal representative or successor in interest for Decedent’s estate. (Id., at 7.) Additionally, Union argues that Plaintiff alleges that she is the mother of Decedent but does not make the assertion that she has standing to bring a survival action. (Ibid.) Union also argues that Plaintiff fails to comply with the procedural requirements for bringing a survival action since Plaintiff does not provide a supportive affidavit or declaration corroborating Plaintiff’s relationship with Decedent. (Ibid.)

 

In opposition, Plaintiff contends that Plaintiff will provide a declaration that will cure any issues brought by Union and reaffirms that Plaintiff is Decedent’s guardian, heir, and only surviving party with a significant involvement in the life of Decedent. (Opp., at 6.) Plaintiff also considers opening a probate proceeding and requests a continuance of this demand so that Plaintiff is appointed as a representative of Decedent’s estate. (Ibid.) Plaintiff contends that there is no ground on the face of the pleading to strike Plaintiff’s survival action claim. (Ibid.)

 

In reply, Union once again argues that Plaintiff fails to comply with her statutory requirements to show her standing to bring a survival cause of action. (Reply, at 5.)

 

The court finds that a motion to strike is an improper procedural vehicle to determine whether Plaintiff’s survival action should be dismissed from her complaint. (Quiroz v. Sevent Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [“Where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike.”].) As such, Union’s motion is denied.

 

Conclusion

 

1.               Defendant Union Pacific Railroad Company’s Motion to Abate Action, or in the alternative, Join Necessary Parties is DENIED in part as to abatement and GRANTED in part as to joining a necessary party.

 

2.               Defendant Union Pacific Railroad Company’s Motion to Strike is DENIED in part and GRANTED in part.  

 

The court will inquire at the hearing whether leave to amend should be granted.