TENTATIVE RULING

 

Calendar:    11

Date:          7/29/2022 

Case No: BC 648515 Trial Date: September 12, 2022

Case Name: Ellensohn v. City of Burbank, et al.

                                                   DEMURRER

                                         MOTIONS TO STRIKE (2)

Moving Party:            Defendants City of Burbank and Burbank Water and Power 

Defendant HHS Construction, Inc.  (Motion to Strike)      

Responding Party: Plaintiff Mark Ellensohn      

RELIEF REQUESTED:

City of Burbank and Burbank Water and Power

Sustain demurrer to first, second, and third causes of action of Third Amended Complaint 

Strike improper allegations, punitive damages

HHS Construction, Inc.

Strike punitive damages   

CAUSES OF ACTION: from Third Amended Complaint  

1) Dangerous Condition of Public Property 

2) General Negligence and Gross Negligence 

3) Premises Liability 

4) Motor Vehicle 

SUMMARY OF FACTS:

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below. 

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, an explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road.  Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light.  On June 1, 2016, plaintiff underwent a surgical procedure on his left eye, and plaintiff’s ophthalmologist advised him that, in his opinion, the electrical explosion during the collision caused plaintiff’s eye damage.   Plaintiff was further advised that he had sustained permanent vision loss and permanent damage.  Plaintiff alleges that as a result of the intense bright explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish, diminished sense of direction, loss of earnings, loss of future earnings, and loss of earning capacity. 

The file shows that on January 28, 2021, plaintiff filed a Request for Dismissal without prejudice only as to defendant Verizon California, Inc., with the parties agreeing to waive costs and fees.  The dismissal was entered as requested the same date. 

On April 8, 2022, the court heard a Motion for Determination of Good Faith Settlement brought by defendant, cross-defendant and cross-complainant MCI Communications Services, LLC.  The motion was granted, and the court determined the settlement between defendant and plaintiff was entered into in good faith.   

On May 13, 2022, the court heard a motion brought by plaintiff for leave to file a Third Amended Complaint, which was granted in part and denied in part.  The motion was granted “as to the proposed amendments to the second cause of action for negligence and gross negligence, as well as the prayer for punitive damages.”   The motion was also granted to insert footnotes regarding the status of defendants MCI and Verizon, to allege facts concerning the 2016 surgery, and to amend references to the Second Amended Complaint to refer to the Third Amended Complaint.  [Minute Order, May 13, 2022, p. 9 of 10].  The motion was otherwise denied, including to the extent plaintiff sought to allege three new causes of action for fraud, conspiracy to commit fraud, and IIED.   Plaintiff was ordered to revise the proposed Third Amended Complaint according to the court’s order and file the pleading that date.  

The TAC was filed on May 16, 2022.  

Defendants the City of Burbank and Burbank Water and Power, and defendant HHS now challenge the sufficiency of the TAC.   

ANALYSIS:

City of Burbank Defendants Demurrer and Motion to Strike

Procedural

Opposition Not Served  

The City of Burbank defendants argue that the court should disregard the opposition filed by plaintiff, as it was never served on defendants.

The opposition includes a proof of service showing the opposition was served by email on June 13, 2022, but counsel indicates the document was never received.   Defendants were evidently able to obtain a copy of the opposition in time to file a timely reply to the opposition on its merits.  The hearing on the motion was also continued, permitting defendants a lengthy period before the actual hearing to obtain a court order to file a supplemental reply if defendants were unable due to time constraints to thoroughly respond to the opposition.  The court accordingly considers the opposition.   

Substantive

Demurrer

The City of Burbank defendants argue that all causes of action fail because plaintiff has failed to properly plead compliance with the Government Claims Act.   

As pointed out in the opposition, this court has fully considered and rejected this argument in connection with a previous demurrer to the pleading, and two motions for summary judgment.  Specifically, on September 14, 2018, the court overruled a demurrer to the First Amended Complaint on this ground. 

On August 21, 2020, the court denied a motion for summary judgment on this ground.   The court’s ruling expressly states:

“This is sufficient evidence, if credited by the trier of fact, to support a reasonable inference that a claim was submitted on behalf of plaintiff. Plaintiff has also raised triable issues of material fact with respect to whether the claim was timely served within 60 days of plaintiff learning his alleged injuries were a direct result of the subject incident. [Ellensohn Decl. ¶¶ 3-11].”

[Minute Order, 8/21/20].

On August 20, 2021, the court denied a motion for summary judgment directed to the Second Amended Complaint brought by the City defendants on this same ground, finding the motion was an improper renewed motion for summary judgment, and again finding that the evidence supports a “reasonable inference that plaintiff was delayed in the discovery of alleged injuries and their likely cause.”  [Minute Order, 8/20/21, pp. 8-9 of 9]. 

The Second District holds that where a demurrer is sustained as to some causes of action, but overruled as to others, and the pleading is then amended, a party may not demur again on the same grounds to those portion of the amended pleading to which an earlier demurrer was overruled.   Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97.  

In Bennett, the Second District held that a trial judge was “foreclosed from rendering a new determination on the viability of” causes of action which had been the subject of a previous demurrer on the same grounds where the demurrer had been overruled, “unless some new facts or circumstances were brought to his attention.”  Bennett, at 97.   

Here, there are no new facts or circumstances argued, and the same arguments are asserted. 

Moreover, CCP § 430.41(b) provides:

“(b) A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.”

This statute would appear to also disfavor demurring to an amended complaint on grounds which not only could have been raised but were in fact raised by demurrer to an earlier version of the pleading and were rejected.  The court will waste no further judicial resources addressing this argument, and the demurrer on this ground again is overruled.  

Second Cause of Action—Negligence/Gross Negligence 

The City defendants argue that this cause of action for negligence cannot be stated against public entities, which must be sued based on a specific statute.

Government Code § 815 provides:

“Except as otherwise provided by statute:

(a) 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.”

It is accordingly held that when pleading negligence against a public entity, plaintiff must allege and identify the statute establishing the duty owed by the public entity.  Searcy v. Hemet Unified School Dist.  (1986) 177 Cal.App.3d 792. 

In Searcy, the court of appeal affirmed the trial court’s order sustaining a demurrer on the ground a statutory duty had not been identified, holding:

“[I]n California all government tort liability is dependent on the existence of an authorizing statute or “enactment” (Gov. Code, § 815, subd. (a), 815.6; Tolan v. State of California ex rel. Dept. of Transportation, supra., 100 Cal.App.3d 980, 983; Morris v. State of California, supra., 89 Cal.App.3d 962, 964; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 808 [75 Cal.Rptr. 240]), and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. ( Susman v. City of Los Angeles, supra., 269 Cal.App.2d 803, 809.) Duty cannot be alleged simply by stating “defendant had a duty under the law”; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. (Id.; see also Rubinow v. County of San Bernardino (1959) 169 Cal.App.2d 67, 71 [336 P.2d 968].) Since the duty of a governmental agency can only be created by statute or “enactment,” the statute or “enactment” claimed to establish the duty must at the very least be identified.”

Searcy, at 802.

The City defendants acknowledge that the cause of action alleges that plaintiff is pursuing these defendants pursuant to Government Code section 815.2.  [TAC, para. 37].  That statute provides, in pertinent part:

“(a) A public entity is liable for injury caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”

The City defendants argue that there are no facts alleged showing how this statutory provision would apply.   The TAC alleges in rather conclusory fashion, “Defendants are liable for Plaintiff’s injuries pursuant to California Government Code section 815.2 (a).”  [TAC, para. 37].  The TAC alleges that “Defendants were negligent in failing to inspect and maintain the power line,” and “Defendants re-hung the wires and the guy wires, and/or installed the poles, only to have the same failure occur within three months’ time.”  [TAC, para. 36].  No employees are identified, and it is not explained how the conduct of any City employee would be independently actionable.  

It is held that statutory causes of action must be pled with factual particularity.   Lopez v. Southern California Rapid Transit District (1985) 40 Cal.3d 780, 795.   

The City defendants cite to Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, in which the Second District affirmed judgment for defendant City after its demurrer to plaintiff’s complaint was sustained without leave to amend, noting that factual specificity is required in pleading statutory causes of action against public entities:

“Because recovery is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate. ( Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809 [75 Cal.Rptr. 240]; Vedder v. County of Imperial (1974) 36 Cal.App.3d 654, 659 [111 Cal.Rptr. 728]; County of Ventura v. City of Camarillo (1978) 80 Cal.App.3d 1019, 1025 [144 Cal.Rptr. 296]; Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar 1980) § 3.72.)

Mittenhuber, at 5. 

Plaintiff in opposition seems to argue that plaintiff has named two Doe defendants, Michael Gibson and Calvin Clark, both employees of Burbank, and that plaintiff has alleged that these employees were grossly negligent when they failed to ascertain the total weight of the span, and all other factors that should be considered when hanging wires over a major interstate freeway, twice.  

None of this is evident from the pleading, and this does not supply the necessary facts to specifically allege liability under the statute relied upon. The demurrer is sustained with one opportunity to amend to allege the statutory basis for liability with the required specificity, if possible.    

The City defendants also argue that to the extent the allegations are that the power line was low hanging and that defendants were negligent in not installing the wires underground, the evidence in this case shows that no City electrical line was low hanging, and the only line that went underground belonged to MCI Communications.  This argument is essentially a speaking demurrer, arguing that the facts alleged as to this defendant are not true, which is not the appropriate analysis on demurrer.  See Serrano v. Priest (1971) 5 Cal.3d 584, 591; Del E. Webb Corp. v.  Structural Materials Co. (1981, 2nd Dist.) 123 Cal.App.3d 593, 604 (“As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.”)  The demurrer is overruled on this ground.    

The City defendants also argue that the conduct as alleged does not rise to the level of gross negligence.  However, the cause of action is fashioned a cause of action for “General Negligence/Gross Negligence,” and this argument does not address the sufficiency of the allegations to support a claim of general negligence. The demurrer on this ground would accordingly only dispose of part of a cause of action, and a demurrer does not lie to only part of a cause of action. Kong v. City of Hawaiian Gardens Redevelop. Agency (2003, 2nd Dist.) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.   The demurrer on this ground is overruled.  

  

Third Cause of Action—Premises Liability 

The City defendants argue that this cause of action is a common law premises liability cause of action and may not be brought against public entities as a matter of law; plaintiff is limited to bringing a claim under Government Code section 835 for dangerous condition of public property.  A cause of action for dangerous condition of public property is already stated in the first cause of action.   

Plaintiff in opposition indicates that “Plaintiff does not oppose Burbank’s Demurrer to the third cause of action for premises liability.”  [Opposition, p.1:24-25].  The demurrer accordingly is sustained without leave to amend at the concession of plaintiff in the opposition. 

Motion to Strike

The motion to strike seeks to strike various allegations from the pleading, including those involving live electrical wires, allegations concerning the alleged government claim, as well as the claim for punitive damages. 

Under CCP section 435, a party may serve and file a motion to strike a part of a pleading.  Upon such a motion, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading.”  CCP sec. 436(a).  

Under CCP section 431.10(c), an “immaterial allegation,” as defined in that section, “means ‘irrelevant matter’ as that term is used in Section 436.”

CCP Section 431.10(b) defines an immaterial allegation as follows:

“(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.”  

 

Defendants do not explain how any of the purported immaterial allegations are in fact immaterial.  As discussed above, the argument appears to primarily be that the subject allegations are not true.  There is nothing within the TAC or which can be judicially noticed which would establish that any particular allegation is not true.  CCP § 437 provides, in pertinent 

part:

“(a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”

The City defendants request that the court take judicial notice of a declaration from an analyst for the City of Burbank, who indicates that the City records do not contain a claim presented by plaintiff.   [See RFJN, Ex. 1].  This request would only pertain to the allegations concerning the presentation of the claim, and as noted above, the court has already determined on more than one occasion that this case raises competing inferences with respect to whether a claim was timely presented.  The declaration, at best, calls into question whether plaintiff’s claim presentation allegations are credible, but does not affirmatively establish that they are not true.   

The opposition concedes that the TAC includes a typographical error, referring to the First Amended Complaint, rather than the Third Amended Complaint.  The motion to strike accordingly is granted to correct this error.  

However, the motion to strike the other allegedly irrelevant, false, or improper allegations will be denied. 

This leaves the issue of punitive damages.   The City defendants argue that punitive damages cannot be sought against public entities, under Government Code section 818, which provides:

“Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”

The City defendants argue that while section 818 does not prohibit claims of punitive damages against individual government employees, plaintiff has not sued such employees.  

Plaintiff in opposition argues that punitive damages can be awarded against the City defendants when an employee acted with negligence and gross negligence, and refers to two Does which are employees of the City defendants.  There is no legal authority cited under which the punitive damages can be claimed against the City defendants under these circumstances as opposed to directly against the employees.  See, e.g., Runyan v. Superior Court (1986) 187 Cal.App.3d 878, 880-881 (“A proper interpretation of section 818 is that it prohibits a claim of punitive damages against a public entity, but not against individual public employees.”).).  The motion accordingly is granted.  As plaintiff has not cited to legal authority or otherwise met plaintiff’s burden to show how the pleading could be appropriately amended to avoid the immunity provided to the moving defendants under Government Code section 818, the motion to strike is granted without leave to amend. 

HHS Construction’s Motion to Strike 

Defendant HHS Construction, Inc. moves to strike from the TAC the allegations of and prayer for punitive damages, arguing that the TAC does not sufficiently allege that defendant engaged in conduct which would support a finding of oppression, fraud, or malice, and does not sufficiently specifically allege entitlement to punitive damages.   

Civil Code § 3294 (a) authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…”  “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  Civil Code § 3294 (c)(2).   “Malice” is defined to mean “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.”  Civil Code § 3294 (c)(a).   

“Despicable” has been defined as a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible.”   College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.   “Despicable conduct” is defined as, “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary, decent people.”   Mock v. Michigan Millers Mutual Ins. Co. (1990, 2nd Dist.)  4 Cal. App. 4th 306, 331, quoting BAJI 14.72.1; See CACI 3114 (“’Despicable conduct’ is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.”) Such conduct has been described as “[having] the character of outrage frequently associated with crime.”  Taylor v. Superior Court (1979) 24 Cal.3d 890, 894, quotation omitted.  Punitive damages are appropriate if the defendant’s acts are “reprehensible, fraudulent or in blatant violation of law or policy.”  Tomiselli v. Transamerica Insurance Co. (1994) 25 Cal.App.4th 1269, 1287. 

Defendant argues that the TAC here does not allege that defendants intended to injure plaintiff specifically, or that defendants engaged in any fraud, so that plaintiff must rely on allegations supporting a finding of malice and despicable conduct to assert a claim for punitive damages.  

The TAC here alleges, in pertinent part:

“36.  Defendants were grossly negligent when a previous incident in March 2015 occurred in the same manner and at the same location as the subject incident. In an apparent effort to save money by not installing the wires underground following the first March 2015 incident, Defendants re-hung the wires and the guy wires, and/or reinstalled the poles only to have the same failure occur within three months’ time. Both incidents involved a low hanging wire and faulty installation. After the second strike of the fallen wires in the subject incident, the wires were finally installed appropriately underground….

39.  As a result of defendants’ gross negligence, in which defendants acted with malice, fraud and/or oppression, Plaintiff is entitled to an award of punitive damages.” 

[TAC, paras. 36, 39].  

Defendant argues that these allegations are insufficient to show despicable conduct, as the conduct appears to be at best negligence on the part of defendants, and that negligence or even gross negligence is found to not be sufficiently egregious to support punitive damages.   Defendant points out that plaintiff does not even allege that defendants engaged in any conscious conduct to save money, as the allegation is that defendants engaged in such conduct in an “apparent” attempt to do so.   

Defendant relies on case law in which it is generally recognized that “Mere negligence, even gross negligence, is not sufficient” to justify an award of punitive damages.   Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.  Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1170 (“Punitive damages should not be allowable upon evidence that is merely consistent with the hypothesis of malice, fraud, gross negligence or oppressiveness. Rather some evidence should be required that is inconsistent with the hypothesis that the tortious conduct was the result of a mistake of law or fact, honest error of judgment, over-zealousness, mere negligence or other such noniniquitous human failing,” quoting Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1288, fn. 14).   

In addition, defendant argues that the pleading as alleged consists primarily of conclusory allegations that all defendants acted with malice, fraud, or oppression, when allegations to support punitive damages must be made with specificity.  Defendant cites to Smith v. Superior Court (1992) 10 Cal.App.4th 1033, in which the court of appeal found that the trial court had improperly denied a motion to strike a claim for punitive damages in a case where the pleading alleged that defendants, at attorney and law firm, had failed to adequately represent plaintiff and her property interests in a dissolution proceeding, resulting in economic injury. 

The court of appeal set forth the following pleading requirements:

“Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. [Citation.] When nondeliberate injury is charged, allegations that the defendant's conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. [Citations.] When a defendant must produce evidence in defense of an exemplary damage claim; fairness demands that he receive adequate notice of the kind of conduct charged against him.”

Smith, at 1041, quoting G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.  

Here, where non-deliberate conduct is similarly alleged, the pleading must specifically allege the conduct attributed to the moving defendant which would support a finding of malice.  

Plaintiff in opposition argues that the TAC presents sufficient allegations to demonstrate gross negligence against HHS, for which punitive damages are warranted.  Plaintiff argues that the subject incident was the second of its exact nature, and that something caused the MCI wire that HHS hung to sag or become lower than it should have been, causing it to fall in the first instance, and that after the first instance, when HHS had knowledge that the wire it had previously hung had come down, HHS rehung the wire in the same manner, testifying that it did not have engineering reports or other plans when it rehung the wire for the second time, and none of HHS’s witnesses could testify to sag, length, weight or other details of the wire.  Plaintiff also argues that defendant HHS and the City defendants have conspired to blame, on both occasions, two 21 feet plus high vehicles for having hit the wire, when defendants claim the wire was hung at above 21 feet in height, but the law requires all moving vehicles to be less than 14 feet, and all overpasses and sign spans in the area are 18 feet or less.  

Plaintiff argues that this fabrication of and false reliance on evidence concerning a phantom overloaded truck hid any findings about HHS’s shoddy work, which occurred twice.  Plaintiff does not point out where these allegations are set forth in the TAC and does not discuss the facts of any case law in which a claim of such a nature, which plaintiff himself characterizes as gross negligence, has been held to support a claim for punitive damages.   Moreover, this recitation of facts in the opposition appears to underscore the validity of moving defendant’s argument that the TAC itself does not allege conduct on the part of moving defendant in support of a claim for punitive damages with the requisite specificity.   

Defendant in the reply argues that plaintiff’s argument is primarily based on a claim that HHS made the same mistake twice, that it rehung the line twice before the incident on June 9, 2015, when to the contrary, HHS hung the line only once before the incident, on March 16-17 of 2015, after the March 15, 2015 incident.  This appears significant, as to the extent plaintiff’s argument in the opposition appears to suggest that there are facts which could be alleged on amendment supporting a conscious disregard for safety, a critical fact to be alleged would be that this specific defendant, HHS, as opposed to all “Defendants,” as currently alleged, was in possession of specific knowledge from the first incident before hanging the wires prior to plaintiff’s incident.  

The court has not considered the factual materials submitted with the reply on any issue other than whether leave to amend will be permitted.  The allegations of the TAC are insufficient to allege despicable conduct on the part of the moving defendant and are also not alleged with sufficient specificity as to the moving defendant, which is lumped into the pleading with all other “Defendants.”   The demurrer accordingly is sustained.   

The court will at the hearing consider argument concerning whether leave to amend will be permitted, including what facts plaintiff is able to in good faith allege with respect to the moving defendant’s conduct in this matter.  

RULING:

Defendant City of Burbank and Burbank Water and Power’s Demurrer and Motion to Strike:

Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND to the third cause of action for premises liability, at the concession of plaintiff in the opposition.

Demurrer is SUSTAINED WITH LEAVE TO AMEND to the second cause of action for general negligence/gross negligence on the ground the cause of action does not sufficiently allege facts to establish the statutory basis for this cause of action, in effect, facts showing how the identified statute, Government Code section 815.2 (a), gives rise to liability in this matter on the part of the public entity defendants.  [See TAC, para. 37]. 

 

Demurrer to all other causes of action and on all other grounds is OVERRULED.

Ten days leave to amend the second cause of action only, if possible.  

Motion to Strike is GRANTED as to the word “First” included at paragraph 7, p. 2, line 11, at the concession of plaintiff in the opposition.  The Court will interlineate the pleading to strike the word “First” and replace it with the word, “Third.”  

Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND as to the prayer for punitive damages as to moving defendants only.

Motion to Strike is otherwise DENIED. 

The parties are ordered to meet and confer in full compliance with CCP § 430.41 before any further demurrer is filed. 

Defendant City of Burbank and Burbank Water and Power’s Request for Judicial Notice in Support of Demurrer to Third Amended Complaint is GRANTED. 

Defendant HHS Construction, Inc.’s Motion to Strike Portions of Plaintiff’s Third Amended Complaint is GRANTED WITH/WITHOUT LEAVE TO AMEND.  The pleading fails to sufficiently allege conduct on the part of the moving defendant which would support a finding of malice or despicable conduct sufficient to support a claim for punitive damages, and the pleading fails to allege with sufficient specificity the conduct alleged to be attributable to the moving defendant.  The Court will hear oral argument with respect to whether leave to amend will be permitted.   

Request for Judicial Notice in Support of Defendant HHS Construction’s Motion to Strike Portions of Plaintiff’s Third Amended Complaint is GRANTED. 

Ten days to answer/leave to amend.  

The parties are ordered to meet and confer in full compliance with CCP §435.5 before any further motion to strike may be filed.  

 

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.