Judge: William A. Crowfoot, Case: 20STCV22476, Date: 2022-10-21 Tentative Ruling

Case Number: 20STCV22476    Hearing Date: October 21, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On June 12, 2020, plaintiff M.R. (“Plaintiff”), a minor, by and through his guardian ad litem, Veronica Hamid, filed this action against defendants Watts Learning Center Foundation (“Foundation”), Los Angeles Unified School District (“District”), Jane Doe 1, John Doe 2, and Does 3 to 100.  Foundation allegedly operates the Watts Learning Center Charter Middle School (“School”) which is located within the geographical boundaries of the District.  (Compl., ¶ 6.) 

Plaintiff alleges that he has osteogenesis imperfecta, also known as “brittle bone disease”, but that at or near the beginning of the 2019-2020 school year, John Doe 2, a physical education teacher, failed to accommodate his disability and ordered him to run during P.E. class, causing Plaintiff to fall and break his left femur and right scapula.  (Compl., ¶¶ 12-14.)  Plaintiff asserts causes of action for violations of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, Government Code section 11135, the Unruh Civil Rights Act, and the Disabled Persons Act.  Plaintiff also asserts causes of action for negligence and negligent hiring, supervision, or retention of employee. 

On August 24, 2020, Foundation filed an answer as well as a notice of removal.  On March 25, 2022, the district court remanded the action back to the trial court after granting partial summary judgment in favor of Foundation and against Plaintiff as his claims for violations of the Unruh Act, the ADA, and the Rehabilitation act. 

On July 1, 2022, District filed a cross-complaint for breach of contract, indemnity, contribution, and declaratory relief (“Cross-Complaint”) against Foundation and Alliance of Schools for Cooperative Insurance Programs (“Alliance”), which is a joint powers authority.  On August 26, 2022, Foundation and Alliance (collectively, “Cross-Defendants”) filed this demurrer to District’s Cross-Complaint.

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     REQUEST FOR JUDICIAL NOTICE

          Cross-Defendant’s Request for Judicial Notice

          Cross-Defendants request that the Court judicially notice Plaintiff’s Complaint (Exhibit A), District’s Answer (Exhibit B) filed in the United States District Court on November 20, 2020, and the fact that Alliance is a public agency (Exhibit C attached to Notice of Errata regarding RJN showing screenshot of website). 

          The Court judicially notices Plaintiff’s Complaint and District’s Answer as records of the Court, but denies Cross-Defendant’s request to judicially notice the fact that Alliance is a public agency.  Alliance’s website is not a source of reasonably indisputable accuracy.  (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889 [no “official Web site” provision for judicial notice].)

          District’s Request for Judicial Notice

          District requests the Court judicially notice the claim for damages submitted by Plaintiff to District.  The Court judicially notices the existence of the document but not the truth of the statements within the document.

IV.     DISCUSSION

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)  

          Amy Arseneaux Evenstad, counsel for Cross-Defendants, declares that she met and conferred with District’s counsel, John Meehan, on August 17, 2022 over the telephone but the parties were unable to come to an agreement.  (Demurrer, Evenstad Decl., ¶ 7.)  The meet and confer requirement is satisfied.

As a preliminary matter, the Court examines whether the Cross-Complaint was properly filed.  Cross-Defendants first argue that District was required to file its cross-complaint at the same time as its answer, or otherwise seek leave of court before filing this cross-complaint.  Cross-Defendants cite to Code of Civil Procedure section 428.50(a), which only applies to cross-complaints filed by a party “against any of the parties who filed the complaint against him or her.”  Here, Cross-Defendants did not file any complaint against Plaintiff, therefore this statutory provision is inapplicable.  Any other cross-complaint “may be filed at any time before the court has set a date for trial.”  (Code Civ. Proc., § 428.50, subd. (b).)  Leave of court shall be obtained to file any cross-complaint except one filed within the time specified in section 428.50 subdivision (a) or (b).  (Code Civ. Proc., § 428.50, subd. (c).)  Leave may be granted in the interest of justice at any time during the course of the action.  (Ibid.) 

The Court notes that a non-jury trial was set for December 10, 2021 but vacated on November 29, 2021 by the Honorable Audra Mori.  This cross-complaint was filed on July 1, 2022, which is after that initial trial date was already set.  Therefore, District was required to seek leave to file this cross-complaint and this cross-complaint was impermissibly filed.  Accordingly, the Court STRIKES the Cross-Complaint filed by District. 

IV.     CONCLUSION

As the Cross-Complaint is stricken, Cross-Defendant’s demurrer is moot and taken off calendar.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.