Judge: Stephen Morgan, Case: 23AVCV00569, Date: 2023-11-14 Tentative Ruling
Case Number: 23AVCV00569 Hearing Date: November 14, 2023 Dept: A14
Background
This is an other personal injury
action. Plaintiff Barron K. Simmons (“Plaintiff”) alleges that Defendants
Kathleen Allison, Howard Moseley, R. Johnson, D. Williams, R. Ochoa, K.
Bradford, M. Flores, C. Conchas, O. Martin, M. Crenshaw, Tammy Elliot, Q.
Westry, R. Nickolas, D. De Catur, C. Rojas, and E. Tarin (collectively “Defendants”)
received an Abstract of Judgment on June 29, 2022 from a court in San Diego and
changed his sentence from 22 years and four months to 20 years and four months.
Plaintiff presents that, had the appropriate time been taken off, he would
qualify for immediate release. Plaintiff further presents that he wrote to
Defendants to receive help, but did not receive any.
On May 11, 2023, Plaintiff filed
his Complaint alleging three causes of action for: (1) General Negligence, (2)
Intentional Lability, and (3) Premises Liability. The Court notes that
Plaintiff has marked and wrote in a cause of action for Exemplary Damages;
however, this is not a cause of action and is encompassed by the Prayer of
Relief which requests punitive damages.
On August 31, 2023, Defendants
Kathleen Allison, Howard Moseley, R. Johnson, D. Williams, R. Ochoa, K.
Bradford, M. Flores, C. Conchas, O. Martin, M. Crenshaw, Tammy Elliot, Q.
Westry, R. Nickolas, D. De Catur, and C. Rojas (collectively “Moving
Defendants”) filed their General Denial, a type of Answer.
The Court notes that Defendant E.
Tarin has not been served.
On September 21, 2023, Moving
Defendants filed this Motion for Judgment on the Pleadings (“MJOP”).
On October 10, 2023, Plaintiff
filed a Response to Defendants’ General Denial.
On October 23, 2023, Plaintiff
filed his Opposition.
On November 07, 2023, Moving
Defendants filed their Reply. “[A]ll reply papers [shall be filed with the
court and a copy served on each party] at least five court days before the
hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the
time within which a right may be exercised or an act may be done, does not
apply to a notice of motion, papers opposing a motion, or reply papers governed
by this section.” (Ibid.) The hearing is set for November 14, 2023.
November 10, 2023 is a national holiday. Accordingly, the Reply was due by
November 06, 2023. Moving Defendants’ Reply is untimely. “No paper may be
rejected for filing on the ground that it was untimely submitted for filing. If
the court, in its discretion, refuses to consider a late filed paper, the
minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d).) The
Court, in its discretion, considers the late filed Opposition.
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Legal Standard
Standard for Judgment on the Pleadings – A defendant may move for judgment on the pleadings
only when: a motion for judgment on the pleadings may only be made on one of
the following grounds: (1) the court has no jurisdiction of the subject of the
cause of action alleged in the complaint; or (2) the complaint does not state
facts sufficient to constitute a cause of action against that defendant. (Code
Civ. Proc. § 438(c)(1).)¿
¿
A motion for judgment on the pleadings
challenges the legal sufficiency of a pleading’s allegations, not their
veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) Thus, a motion for judgment on the pleadings is the functional equivalent
of a general demurrer. (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of
Am. (1996) 44 Cal.App.4th 194, 198; see also Cloud
v. Northrop Grumman Corp. (1998) 67
Cal.App.4th 995, 999 [“A motion for judgment on the pleadings performs the same
function as a general demurrer, and hence attacks only defects disclosed on the
face of the pleadings or by matters that can be judicially noticed.
Presentation of extrinsic evidence is therefore not proper on a motion for
judgment on the pleadings.”].)¿
¿
The standard for ruling on a
motion for judgment on the pleadings is essentially the same as that applicable
to a general demurrer, that is, under the state of the pleadings, together with
matters that may be judicially noticed, it appears that a party is entitled to
judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183
Cal.App.4th 316, 321-322 [citing Schabarum v. California Legislature
(1998) 60 Cal.App.4th 1205, 1216].)¿Any defects must either appear on the face of the pleading, or else be
taken by judicial notice. (Id. at 321-22.) The parties’ ability to prove
their respective claims is of no concern. (Cloud, supra, 67
Cal.App.4th 995 at 999.) Though the Court must accept the allegations of the
complaint and answer as true (Gerawan Farming, Inc. v. Lyons (2000) 24
Cal.4th 468, 515), it will not do so for “conclusions of law or fact, opinions,
speculation, or allegations contrary to law or [judicially noticed] facts. . .”
(Stevenson Real Estate Servs., Inc. v. CB Richard Ellis Real Estate Servs.,
Inc. (2006) 138 Cal.App.4th 1215, 1219–20.)¿
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Discussion
Application – Moving Defendants
presents that Plaintiff has failed to timely comply with the California Tort
Claims Act. Specifically, Moving Defendants present that (1) Plaintiff does not
allege that he complied with the California Tort Claims Act (the “Tort Claim
Act”); and (2) Plaintiff has attached his Government Claim form to the
Complaint as Exhibit W, but it lacks the date of when the claim was filed and
information showing whether the claim was rejected. Thus, Moving Defendants
believe that without such facts, it is impossible to determine whether
Plaintiff properly complied with the Tort Claims act. Moving Defendants further
present that the Complaint is uncertain as Moving Defendants cannot determine
what causes of action are being alleged. Moving Defendants point to the
Complaint and argue that Plaintiff appears to attempt to allege numerous other
causes of action by sporadically listing different causes of action or elements
of different causes of action throughout the Complaint and exhibits that do not
relate to the causes of action alleged. Finally, Moving Defendants argue that
Plaintiff has failed to allege facts on which his causes of action are based.
Moving Defendants also highlight that Plaintiff has attached the Plaintiffs
Earliest Possible Release Date ("EPRD") as an exhibit to the
Complaint which shows a recalculation based on the San Diego Superior Court’s
Judgment, indicating a release date of February 05, 2024.
Plaintiff opposes the MJOP,
arguing that: (1) Moving Defendants must specify what constitutes the
uncertainty or ambiguity; (2) if a Complaint improperly unties two causes of
action or is unintelligible, ambiguous, or uncertain, these objections must be
taken by a demurrer or they are waived; (3) where several causes of action are
alleged and there are facts stated sufficient to sustain any one cause of
action, a demurrer to the whole complaint cannot be sustained; and (4) if a
demurrer is good to part of a complaint, it cannot be sustained as to the
whole.
Moving Defendants present that
their MJOP for uncertainty is proper as (1) an MJOP may be made at any time up
to and including the time of trial on the same grounds as a demurrer; and (2)
Plaintiff’s citation to Lawrence v. Montgomery (1869) 37 Cal. 183 (“Lawrence”)
is improper as there was no argument in Lawrence that the pleadings were
uncertain and ambiguous as the defendants waived that argument on appeal by
failing to raise it in their demurrer and the California Supreme Court did not
discuss if the uncertainty argument was waived in an MJOP. Moving Defendants
emphasize that Plaintiff did not deny that he failed to comply with the Torts
Claim Act, so he did not comply and the entire Complaint should be dismissed.
The Court first addresses the
argument regarding the Tort Claims Act. The Tort Claims Act provides that, with
certain exceptions not relevant hereto, “. . . no suit for money or damages may
be brought against a public entity on a cause of action for which a claim is
required to be presented . . . until a written claim therefor has been
presented to the public entity . . .” (Cal. Gov. Code § 945.4.) Cal. Gov. Code
§ 915 specifies that the claim must either be delivered or mailed “to the
clerk, secretary, or auditor” of the local public entity. Cal. Gov. Code §
910.2 requires that the claim “be signed by the claimant or by some person on
his behalf.” Finally, Cal. Gov. Code § 910 specifies the required contents of
the claim.
Here, shows that Plaintiff has
filled out a Government Claim Form; however, it does not show that it has been
presented to the public entity. Further, there are no allegations in which this
Court can infer that it has been sent as (1) there are no allegations stating
it was mailed out; (2) no allegations pertaining to the date it was mailed out,
if it had been mailed out; and (3) no allegations pertaining to the public
entity’s determination on the Government Claim.
There is no showing that the Tort
Claims Act has been complied with.
The Court discusses Plaintiff’s
causes of actions for the purpose of clarity.
The First Cause of Action is for General
Negligence. “ ‘The elements of a cause of action for negligence are well
established. They are “(a) a legal duty to use due care; (b) a breach of such
legal duty; [and] (c)the breach as the proximate or legal cause of the
resulting injury.” ’ ” (Ladd v. County of San Mateo (1996) 12 Cal.4th
913, 917.) Plaintiff’s allegations are that (1) C.D.C.R.’s Records received the
Abstract of Judgment from San Diego Court; (2) C.D.C.R. did not take off two
years; (3) C.D.C.R. took two years off; (4) the years taken off do not make a
difference; (4) had the correct amount of years been taken off, Plaintiff would
qualify for immediate release; (5) Plaintiff wrote to multiple people to get
help, but did not receive help; (5) Plaintiff is imprisoned and such
imprisonment constitutes false imprisonment of a dependent adult under fraud,
forgery, embezzlement, theft, infliction of pain, injury or endangerment,
identity theft, false imprisonment, restraining order, and Cal. Pen. Code §§ 368-368.7.
Plaintiff alleges that his health is suffering and everything Moving Defendants
are doing constitutes a crime. The Court emphasizes that it is not a criminal
court and it is limited to review of the civil causes of action. No legal duty
has been alleged and, because of this, no breach of duty or proximate or legal
cause of injury has been alleged. As such, the Complaint is not sufficient to
plead a cause of action for Negligence.
The Second Cause of Action is for
Intentional Tort. Plaintiff repeats the same allegations. Again, the Court
informs the parties that it is not a criminal court. It is unclear what tort is
being alleged. Accordingly, the Second Cause of Action for Intentional Tort is
not sufficient.
The final pled cause of action,
the Third Cause of Action, is for Premises Liability. “The elements of a
negligence claim and a premises liability claim are the same: a legal duty of
care, breach of that duty, and proximate cause resulting in injury. Premises
liability ‘ “is grounded in the possession of the premises and the attendant
right to control and manage the premises” ’; accordingly, ‘ “mere possession
with its attendant right to control conditions on the premises is a sufficient
basis for the imposition of an affirmative duty to act.” ’ But the duty arising
from possession and control of property is adherence to the same standard of
care that applies in negligence cases. In determining whether a premises owner
owes a duty to persons on its property, we apply the Rowland [Rowland
v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561]] factors.
Indeed, Rowland itself involved premises liability.’ ” (Kesner v.
Superior Court (2016) 1 Cal.5th 1132, 1159 [internal citations omitted].)Plaintiff
alleges that Plaintiff was injured on Moving Defendants’ premises due to crime
against elders and dependent adults; legislative findings; infliction pain,
injury, or endangerment; theft, embezzlement, forgery, fraud or identity theft;
and false imprisonment. The Court reiterates that it is not a criminal court. No
allegations in the Complaint support a claim for Premises Liability.
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy¿(1976), 18 Cal.3d 335, 348.)
Here, there are several issues.
The issue regarding the Tort Claims Act may be overcome by a showing that the
Tort Claims Act was adhered to. It is possible to rectify this deficiency. As
to Negligence, there is no showing of duty, breach, or causation. Should the
Torts Claim Act be sufficiently pled, an amendment may rectify this deficiency.
Regarding the Second Cause of Action for Intentional Tort, it is unclear what
is being alleged, so the Court allows leave to amend out of an abundance of
caution. As to the Third Cause of Action for Premises Liability, an amendment
would not correct the deficiencies as, from the alleged facts, the injury did
not stem from the premises.
Accordingly, the MJOP is
SUSTAINED as to the Complaint in whole. Leave to amend is GRANTED as to the
First and Second Causes of Action. Leave to amend is DENIED as to the Third
Cause of Action.
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Conclusion
Defendants Kathleen Allison,
Howard Moseley, R. Johnson, D. Williams, R. Ochoa, K. Bradford, M. Flores, C.
Conchas, O. Martin, M. Crenshaw, Tammy Elliot, Q. Westry, R. Nickolas, D. De
Catur, C. Rojas’ Motion to for Judgment on the Pleadings is GRANTED.
Leave to amend is GRANTED as to
the First Cause of Action (Negligence) and the Second Cause of Action
(Intentional Tort).
Leave to amend is DENIED as to
the Third Cause of Action (Premises Liability).