Judge Steven A. Ellis, Case Number: 22STCV21034, Date: 2024-01-03 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV21034, Date: 2024-01-03 Tentative Ruling

Case Number: 22STCV21034 Hearing Date: April 12, 2024 Dept: 29

Demurrer and Motion to Strike filed by Defendants Los Angeles County Metropolitan Transportation Authority and Andrew Peterson.

Tentative

The hearing is CONTINUED for approximately 21 days so that counsel may fulfill the statutory meet and confer requirements for a demurrer and motion to strike.

Background

On June 28, 2022, Maria Yolanda Nieto (“Plaintiff”) filed a complaint against Los Angeles County Metropolitan Transportation Authority (“MTA”), Andrew Peterson (“Peterson”), Hermanto Ng (“Ng”), and Does 1 through 25. Plaintiff alleges that on August 28, 2021, she was a passenger on an MTA bus driven by Peterson that was involved in an accident with an automobile driven by Ng, causing Plaintiff to sustain injuries. In the complaint, Plaintiff alleged a motor vehicle negligence cause of action against all defendants and a general negligence cause of action against MTA, Peterson, and Does 1 through 5.

On July 31, 2023, Plaintiff amended her complaint to name Uber Technologies, Inc. (“Uber”) as Doe 1.

Uber and Ng filed answers to the complaint on December 4 and 7, 2023. MTA filed a demurrer and motion to strike. There was some ambiguity in MTA’s demurrer, but the Court ruled that MTA demurred only to the First Cause of Action in the complaint (for motor vehicle negligence). The Court sustained MTA’s demurrer, denied the motion to strike as moot, and granted Plaintiff leave to amend.

On January 29, 2024, Plaintiff filed a First Amended Complaint (the “FAC”). In the First Cause of Action in the FAC, for motor vehicle negligence, Plaintiff alleges (among other things) that MTA is vicariously liable for the negligence of its employee (Peterson) under Government Code section 815.2. The Second Cause of Action in the FAC repeats, without any changes, the general negligence cause of action against MTA and Peterson.

Uber and Ng filed answers to the FAC on February 26 and 28.

On February 26, MTA and Peterson (collectively, “Defendants”) filed a demurrer and motion to strike. Plaintiff filed oppositions on March 5, and Defendants filed replies on April 5.

Legal Standard

Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

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; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can be sustained only when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Motion to Strike

Under Code of Civil Procedure section 435, “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. § 435, subd. (b)(1).)

Code of Civil Procedure section 436 provides as follows:

“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.”

(Code Civ. Proc., § 436.) In ruling on a motion to strike, the court must assume the truth of the properly pleaded facts in the complaint or other pleading. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)

Discussion

Before filing a demurrer, the demurring party must “meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) When an amended complaint is filed, “the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.” (Ibid.) The demurring party must file a declaration with the demurrer that states either “the means by which the demurring party met and conferred with the party who filed the pleading” or that the party who filed the pleading failed to meet and confer. (Id., subd. (a)(3).)

Before filing a motion to strike, the moving party must “meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) When an amended complaint is filed, “the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.” (Ibid.) The moving party must file a declaration with the demurrer that states either the “means by which the moving party met and conferred with the party who filed the pleading” or that the party who filed the pleading failed to meet and confer. (Id., subd. (a)(3).)

The failure to meet and confer is not grounds to overrule or sustain a demurrer or to grant or deny a motion to strike. (Code Civ. Proc., §§ 430.41, subd. (a)(4) & 435.5, subd. (a)(4).)

Here, there has not been an adequate meet and confer. The declaration of Defendants’ counsel is conclusory and incomplete. (Liu Decls., ¶ 2.) In opposition, Plaintiff’s counsel provides more detail and plainly indicates that counsel invited a further meet and confer by telephone, one of the options set forth in the applicable statutes. (Kohanim Decls., ¶¶ 6-7 & Exhs. 3.)

The Court may not sustain or overrule the demurrer or grant or deny the motion to strike based upon counsel’s failure to meet and confer. Accordingly, the Court CONTINUES the hearing for approximately 21 and ORDERS counsel to meet and confer as required by statute.

Conclusion

The Court CONTINUES the hearing on the demurrer and motion to strike for approximately 21 days.

The Court ORDERS counsel for Defendants MTA and Peterson and counsel for Plaintiff to meet and confer as required by Code of Civil Procedure sections 430.41 and 435.5.

The Court GRANTS LEAVE to the parties to file, no later than five court days before the continued hearing, declarations from counsel regarding their compliance with the statutory meet and confer requirements. (No additional briefing or argument on the demurrer or motion to strike is permitted.)

Moving Party is to give notice.