Judge Theresa M. Traber, Case 21STCV14974 2022-09-14 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV14974, Date: 2022-09-14 Tentative Ruling

Case Number: 21STCV14974 Hearing Date: September 14, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: September 14, 2022 TRIAL DATE: September 12, 2023

CASE: James Thomas v. County of Los Angeles, et al.

CASE NO.: 21STCV14974

MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Defendant County of Los Angeles

RESPONDING PARTY(S): Plaintiff James Thomas

CASE HISTORY:

· 04/20/21: Complaint filed.

· 06/09/21: First Amended Complaint filed.

· 12/23/21: Second Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff’s brother was killed by Sheriff’s Deputies when they were allegedly responding to a domestic dispute call to his home. Plaintiff alleges causes of action for negligent infliction of emotional distress and a Ralph Act violation.

Defendant moves for judgment on the pleadings as to both causes of action.

TENTATIVE RULING:

Defendant’s motion for judgment on the pleadings is GRANTED. Plaintiff shall have 30 days leave to amend the Complaint with respect to a statutory basis for Defendant’s liability on Plaintiff’s negligence claim only.

DISCUSSION:

Defendant moves for judgment on the pleadings.

Legal Standard

A motion for judgment on the pleadings is the functional equivalent to a general demurrer. (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198). Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994). Any defects must either appear on the face of the pleading, or else be taken by judicial notice. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-22). The parties’ ability to prove their respective claims is of no concern. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 99.) 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).

Meet and Confer

Before filing a motion for judgment on the pleadings, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion for judgment on the pleadings and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 439(a).) However, an insufficient meet and confer process is not grounds to grant or deny a motion for judgment on the pleadings. (Code Civ. Proc., § 439(a)(4).)

Defendant filed a declaration under penalty of perjury stating that it met and conferred with Plaintiff through written correspondence and email and attempted to confer telephonically without success. (Declaratino of Marina Samson ISO Mot. ¶¶ 7-9, Exhs. D-F.) Defendant has satisfied the statutory meet and confer requirements.

Timing

A motion for judgment on the pleadings may be brought by a defendant at any time after the time to demur has expired and an answer has been filed. (Code Civ. Proc. § 438(f)). Unless a court orders otherwise, a motion for judgment on the pleadings may not be made after entry of a pre-trial conference order, (Cal. Rules of Court 3.720-3.730) or 30 days before the initial trial date, whichever is later. (Code Civ. Proc. § 438(e). No pre-trial conference order was entered in this case, and the motion was filed more than 30 days before the initial trial date.

First Cause of Action: Negligence

Defendant contends that Plaintiff has failed to state facts sufficient to constitute a cause of action for negligence. The elements of negligence are: (1) a legal duty to use due care to the Plaintiff, (2) breach of such legal duty; and (3) the breach being a proximate or legal cause of the resulting injury. (See, e.g., Ladd v. Cnty. of San Mateo (1996) 12 Cal.4th 913, 917.) A public entity is not liable for an injury except where provided by statute. (Gov. Code § 815.) To state a cause of action against a public entity, every fact essential to the existence of statutory liability must be pled with particularity. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802

Defendant argues that Plaintiff has failed to identify an authorizing statute establishing a duty to Plaintiff by either the Defendant or the Doe deputies. Defendant is correct that no statute is identified in the Complaint giving rise to liability on the part of Defendant, either directly or vicariously for the actions of the Doe deputies. In his opposition, Plaintiff attempts to argue that liability arises under section 815.2 of the Government Code. However, no such allegation is present in the Second Amended Complaint. For this reason alone, Plaintiff has failed to state facts sufficient to support a cause of action for negligence as a matter of law.

Defendant also argues in reply that, in any event, Plaintiff has failed to state facts sufficient to constitute a cause of action because he has not alleged that he witnessed his brother’s death. Defendant did not raise this argument in connection with this cause of action in the moving papers. Accordingly, the Court declines to rule on this argument.

For the foregoing reasons, however, Defendant is entitled to judgment on the pleadings as to the first cause of action.

Second Cause of Action: Ralph Act

Defendant argues that Plaintiff has also failed to state facts sufficient to support a cause of action for a claim under the Ralph Act. Plaintiff states in opposition that he does not intend to pursue the Ralph Act claim. Accordingly, Defendant is entitled to judgment on the pleadings as to the second cause of action.

Leave to Amend

When a motion for judgment on the pleadings is granted, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) California law imposes the burden on the party who filed the pleading to demonstrate the manner in which they can amend their pleadings to state their claims. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the [pleading] shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Here, Plaintiff has not shown how he could amend the pleading to state a cause of action for negligence. However, given the presumption in favor of amendment and the nature of the defects in the pleading, the Court will permit Plaintiff to amend the Complaint to identify a statutory basis for liability for his negligence claim.

CONCLUSION:

Accordingly, Defendant’s motion for judgment on the pleadings is GRANTED. Plaintiff shall have 30 days leave to amend the Complaint with respect to a statutory basis for Defendant’s liability on Plaintiff’s negligence claim only.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 14, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.