Judge: Theresa M. Traber, Case: 21STCV14974, Date: 2023-08-30 Tentative Ruling

Case Number: 21STCV14974    Hearing Date: August 30, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     August 30, 2023                     TRIAL DATE: January 23, 2024

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.

·         10/14/22: Third 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 a cause of action for negligent infliction of emotional distress.

Defendant moves for judgment on the pleadings.

TENTATIVE RULING:

Defendant’s motion for judgment on the pleadings is DENIED.

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 telephonically and via email on January 17, 2023, and that the parties could not resolve this dispute. (Declaration of Marina Samson ISO Mot. ¶¶ 13-14 Exh. C.) 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.

Analysis

            Defendant contends that Plaintiff has failed to state facts sufficient to constitute a cause of action for negligent infliction of emotional distress.

            The elements of negligence, including negligent infliction of emotional distress, 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 claim of negligent infliction of emotional distress may only be asserted as a bystander if the Plaintiff “(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and then aware that it is causing injury to the victim, and (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Burgess v. Superior Court 1992) 2 Cal.4th 1064, 1073.)

            Defendant argues that Plaintiff has failed to state facts sufficient to constitute a cause of action because Plaintiff has not pled that he was present at the scene and aware of the death of his brother as it was happening. A cursory review of the Third Amended Complaint belies this contention. Plaintiff alleges that he was present in the home on June 11, 2020, (TAC ¶ 16), and that he witnessed his brother’s death. (TAC ¶ 22.) Taken as true, as required on a motion for judgment on the pleadings, Plaintiff has alleged that he was present at the scene of the injury and aware of that injury. Defendant’s contentions that “the entire homicide file and the witness interviews . . . clearly reflect that Plaintiff never witnessed his brother’s death” are entirely immaterial on a motion for judgment on the pleadings. (Moving papers, p. 9.)

CONCLUSION:

Accordingly, Defendant’s motion for judgment on the pleadings is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  August 30, 2023                                 ___________________________________

                                                                                    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.