Judge: Ronald F. Frank, Case: 22TRCV01555, Date: 2023-09-20 Tentative Ruling
Case Number: 22TRCV01555 Hearing Date: January 2, 2024 Dept: 8
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HEARING DATE: January 2, 2024¿¿
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CASE NUMBER: 22TRCV01555
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CASE NAME: Ingrid Majorie Lockwood v. City of Gardena, et al.¿¿¿
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MOVING PARTY: Defendant, City of Gardena
RESPONDING PARTY: Plaintiff, Ingrid Majorie Lockwood
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TRIAL DATE: None
Set.
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MOTION:¿ (1) Demurrer¿
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Tentative Rulings: (1) OVERRULED as to the 1st
cause of action but SUSTAINED as to the 2nd cause of action without
leave to amend
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I. BACKGROUND¿¿
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A. Factual¿¿
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On December
22, 2023, Plaintiff, Ingrid Majorie Lockwood (“Plaintiff”), filed a Complaint
against Defendants, City of Gardena, GTrans, LLC, and DOES 1 through 50. On
March 20, 2023, Plaintiff filed a First Amended Complaint. On July 17, 2023,
Plaintiff filed a Second Amended Complaint (“SAC”). The Court sustained previous
demurrers to prior versions of the Complaint, and gave Plaintiff leave to amend. On October 20, 2023, Plaintiff filed a Third
Amended Complaint (“TAC”) alleging causes of action for: (1) General
Negligence; and (2) Negligent Supervision, Hiring, or Retention.
City of
Gardena (“City”) now files
a demurrer to the TAC.
B. Procedural¿¿
On November 27, 2023, Defendant,
City filed a Demurrer. On December 18, 2023, Plaintiff filed an opposition. On
December 21, 2023, City filed a reply brief.
¿II. MOVING PARTY’S GROUNDS
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City demurs to the TAC on the
grounds that:
1.
Plaintiff’s first cause of action in the Form Complaint
fails to state facts sufficient to constitute a cause of action for “general
negligence” against Defendant GARDENA and/or is uncertain because it fails to
plead specific factual allegations to establish any breach of duty on the part
of Defendant GARDENA.
2.
Plaintiff’s second cause of action for negligent
supervision, hiring, and retention fails to state facts sufficient to
constitute a cause of action against Defendant GARDENA; is duplicative of the
first cause of action and/or is uncertain as it fails to plead specific factual
allegations to establish any breach of duty on the part of Defendant GARDENA.
III. ANALYSIS¿
A. Demurrer
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A demurrer can be used only to challenge defects that
appear on the face of the pleading under attack or from matters outside the
pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts
sufficient to state a cause of action; each evidentiary fact that might
eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v.
William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For
the purpose of testing the sufficiency of the cause of action, the demurrer
admits the truth of all material facts properly pleaded. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit
contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713.)¿¿¿
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General Negligence Causes
of Action
In
order to state a claim for negligence, Plaintiff must allege the elements of
(1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3)
“proximate cause resulting in an injury.” (McIntyre
v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)
The City’s demurrer argues that Plaintiff’s first cause
of action is conclusory and fails to provide any specific factual allegations
to establish how the City breached any duty of care to Plaintiff. Public entities
cannot be liable for common law theories of general negligence. (Miklosy v.
Regents of University of California (2008) 44 Cal.4th 876, 899 [“section
815 abolishes common law tort liability for public entities”].) Therefore,
liability against a public entity must be authorized by statute. (Eastburn
v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179; Gov.
Code, § 815, subd. (a) [“A public entity is not liable for an injury . . .
except as otherwise provided by statute”].) “Ordinarily, negligence may be
pleaded in general terms and the plaintiff need not specify the precise act or
omission alleged to constitute the breach of duty. [Citation]. However, because
under the Tort Claims Act all governmental tort liability is based on statute,
the general rule that statutory causes of action must be pleaded with
particularity is applicable. Thus, ‘to state a cause of action against a public
entity, every fact material to the existence of its statutory liability must be
pleaded with particularity.’” (Lopez v. Southern Cal. Rapid Transit Dist.
(1985) 40 Cal.3d 780, 795.)
“[I]n California
all government tort liability is dependent on the existence of an authorizing
statute or ‘enactment’ . . . 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.” (Searcy v.
Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) A demurrer
may be sustained where the plaintiff fails to allege a statutory basis for
liability against a public entity. (Tilton v. Reclamation Dist. No. 800
(2006) 142 Cal.App.4th 848, 863-864 [affirming trial court’s sustaining a
demurrer without leave to amend as to four tort causes of action where
plaintiff failed to allege statutory basis—i.e., mandatory duty under
Government Code section 815.6—for liability against public
entity].)
City argues that
Plaintiff’s first cause of action for general negligence violates the
provisions of the California Tort Claims Act and is subject to demurrer. City
relies on Searcy v. Hemet Unified School District (1990) 220 Cal.App.3d
1530 (“Searcy”) to instruct as to how Plaintiff’s duty allegations are
not pleaded with the requisite specificity since Plaintiff’s pled statutory
basis for liability was only identified, and not pled with specificity. The
Fourth District in Searcy established that disregard of statutes is
fatal to a Plaintiff’s claim of public liability. In Searcy, the Fourth
Circuit affirmed the trial court’s sustaining – without leave to amend – the
demurrer of the Hemet Unified School District and California Highway Patrol. In
Searcy, a first-grade student was struck by a car as she was walking
home from school. The accident occurred in the middle of a block about one-half
block from the school at a site the school children often used as a short cut.
(Id. at 796.) The Plaintiff in Searcy sued the driver for her
injuries and also named as defendants the School District, CHP and other public
entities on the ground that they had caused or failed to remedy a dangerous
condition. (Ibid.) The Plaintiff’s complaint alleged that the “dangerous
condition” was the limited visibility of cars at the site of the accident, the
habitual violation of the speed limit by drivers at the site, and the frequent
mid-block street crossing by school children using the short cut. (Ibid.)
The
Searcy plaintiff also alleged on information and belief that there
existed “’other and additional duly adopted enactments’ and other unspecified ‘enactments’” (Id. at 801) which
created a mandatory duty on the part of the School District to correct
dangerous conditions at the accident site. (Ibid.) The Court disagreed
with the Plaintiff’s assertion that her complaint was not uncertain, because
the existence of such enactments was presumptively within the knowledge of the
School District. The Searcy Court explained that “‘enactments’ are
generally a matter of public record, and facts that are ascertainable from
public records may not properly be pleaded on information and belief.
[Citations.]” (Id.at 802.) The Court continued, “Secondly, in California
all government tort liability is dependent on the existence of any authorizing
statute or ‘enactment’ [citations], 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. [Citation.] 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. [Citations.] Since the duty of
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.” (Ibid.)
Here,
unlike Searcy, Plaintiff Lockwood alleges specific sections of the Government
Code on which her governmental tort liability claim is dependent. Further, Plaintiff’s
TAC asserts that Defendant Doe 1 failed to approach the curb at a safe distance
for Plaintiff to get on the bus, failed to lower the bus for Plaintiff which
other bus drivers allegedly had done on the previous occasions where Plaintiff
had boarded the #2 bus in the past, thus arguably establishing a standard of
care for bus drivers on that route. The TAC alleges Doe 1 driver’s failure to
conform to the standard or “protocol” established previously caused Plaintiff
to fall to the floor of the bus as she attempted to step into the bus, and that
City, acting through their agent/employee (Doe 1), had a duty to protect
Plaintiff who was a passenger of the transit bus. (TAC, ¶ 5.) Plaintiff contends that Defendants (including
City) by and through their agent/employee Doe 1, breached its duty to Plaintiff
by 1) failing to approach the curb at a safe distance 2) failing to lower the
bus which they usually did at that stop; 3) by failing to adequately hire,
supervise, an adequate bus driver; and 4) by creating the circumstances where
Plaintiff was likely to receive medical treatment therefor exacerbating the
harm done to Plaintiff. (TAC, ¶ 6.)
The Court deems these allegations as sufficient to state
a cause of action for negligence by an alleged employee of the City, Doe 1
driver, and thus the Demurrer to the first cause of action is overruled.
Negligent
Supervision, Hiring, or Retention
City next argues that that Plaintiff’s second cause of
action is duplicative of the first cause of action and contains no additional elements
or allegations. In pleading a negligent supervision claim, plaintiff must allege: (1)
employer/supervisor defendant hired the employee; (2) the employee was unfit or
posed a particular risk in performing the work for which he was hired; (3) the
employer/supervisor knew or should have known that the employee was unfit and
this unfitness created a particular risk to others; (4) that the employee’s
unfitness harmed the plaintiff; and (5) that employer/supervisor’s negligence
in supervising the employee was a substantial factor in causing plaintiff’s
harm. (Judicial Council of California Civil Jury Instruction (“CACI”) 426
(2019); see also Z.V. v. County of Riverside (2015) 238
Cal.App.4th 889. 902.)
The TAC alleges that Defendant Doe 1
was unfit to protect Plaintiff and that a significant part of the driver’s job
is to allow passengers to safely enter and exit the bus and to ensure they refrain
from placing passengers in unreasonable or avoidable danger. (TAC, ¶ 3.)
Plaintiff has added the allegation that she routinely took the No. 2 bus from
the stop located at Western Avenue and El-Segundo Blvd in Gardena CA and every
time she took the bus, the bus driver would pull up close to the curb and lower
the bus allowing for passengers to safely enter the bus. (TAC, ¶ 4.) Plaintiff
goes on to allege that Defendant Doe 1 failed to follow protocol when he did
not approach the curb at a safe distance or lower the bus for Plaintiff causing
her to fall. (TAC, ¶ 5.)
However, for the third time, Plaintiff
fails to state each element required for a cause of action for negligent
supervision, hiring, or retention. Specifically, Plaintiff does not allege that
City knew or should have known that Defendant Doe 1 was unfit and that his
unfitness created a particular risk to others. While Plaintiff has added an
allegation that she was used to the bus pulling up to a certain distance from
the curb and lowering the bus, the pleading still fails to allege any
allegations of what is required for bus drivers to do. Plaintiff does not allege
that she is disabled, needed the bus to be lowered for any particular reason,
or that she indicated to Defendant Doe 1 that she needed the bus to be lowered
prior to entering. Further, taking the TAC as alleged, if other drivers regularly
lowered the bus and stopped closer to the curb than Doe 1 driver did on this occasions,
how was the supervisors or the City supposed to know that on this solitary
occasion this specific driver would fail to follow the vaguely alleged “protocol”
without any allegation or indication that a reasonable driver knew or should have
known that Plaintiff might encounter difficulty on this occasion? A public entity like the City must be on some
notice, actual or constructive, of the unfitness of the alleged employee. Because the Court previously addressed these
very issues in its earlier tentative ruling on a prior demurrer, the Court
deems Plaintiff unable to truthfully allege such missing eleemtns in the TQAC
or in any future amendment. Without
these allegations, Plaintiff is unable to maintain a cause of action for
Negligent Supervision, Hiring, or Retention against City.
As such, the demurrer to the 2nd
cause of action is SUSTAINED without leave to amend.