Judge: Robert C. Longstreth, Case: 37-2022-00040197-CU-PO-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00040197-CU-PO-CTL MUNOZ VS STATE OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/13/2023

Defendant the State of California by and through the Department of Transportation's Demurrer to Plaintiffs' First Amended Complaint (ROA 15) is OVERRULED as to the first cause of action and SUSTAINED as to the second cause of action without leave to amend.

In opposition, Plaintiffs assert Defendant stipulated to the filing of the First Amended Complaint, apparently implying Defendant waived its right to challenge the amended pleading. This argument does not have merit. Plaintiff failed to cite any legal authority supporting such a position, and the stipulation itself does not state Defendant stipulated the amended pleading was proper or was not subject to challenge.

Plaintiffs assert the demurrer is untimely. This argument does not have merit. Plaintiffs filed their First Amended Complaint in this action on May 30, 2023. (ROA 12.) Plaintiffs served their First Amended Complaint on Defendant the same day, May 30, 2023. (Lee Decl. at Exh. 1.) Plaintiffs' counsel then stipulated to a two-week extension of Defendant's deadline to file a responsive pleading. (Id. at Exh. 2.) The demurrer was filed within this two-week period.

Plaintiffs' two causes of action in the First Amended Complaint are for Creation of a Dangerous Condition and Notice of a Dangerous Condition. The two causes of action are duplicative of each other.

(Compare FAC at ¶¶ 12-16 with ¶¶ 19-20.) A duplicative cause of action is subject to demurrer. (Code Civ. Proc. § 430.10(d); see Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135).

Both causes of action appear to be the same claim for a dangerous condition of public property. (Govt.

Code § 835.) Both causes of action are based on the same facts. Although Plaintiffs assert they have the right to plead in the alternative, it is not clear what 'alternative' Plaintiffs are attempting to plead.

Both causes of action allege Defendant created the alleged dangerous condition. (Compare FAC ¶ 15 with ¶ 19.) Both causes of action also allege Defendant either knew or should have known of the alleged dangerous condition. (Compare FAC ¶ 13 with ¶¶ 19-20.) The contention in the second cause of action that Defendant 'failed to protect' against the dangerous condition, which is supported by either an erroneous citation to the same code provision relied on in the first cause of action or a citation to an irrelevant code provision, does not state a viable, independent cause of action from that stated in the first cause of action.

Accordingly, the demurrer is sustained as to the second cause of action. Since plaintiffs do not suggest how this cause of action could be amended to state a viable claim independent of the first cause of action, the demurrer is sustained without leave to amend. The court finds that the first cause of action states facts sufficient to state a cause of action, and the demurrer as to that cause of action is overruled.

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3042477  4 CASE NUMBER: CASE TITLE:  MUNOZ VS STATE OF CALIFORNIA [IMAGED]  37-2022-00040197-CU-PO-CTL The court intends to conduct a case management conference and set due course trial and related dates at the conclusion of the hearing.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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