Judge: William A. Crowfoot, Case: 21STCV46786, Date: 2022-12-21 Tentative Ruling

Case Number: 21STCV46786    Hearing Date: December 21, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

RUSSELL PATTEN, INDIVIDUALLY, AND AS SUCCESSOR-IN-INTEREST TO AND ADMINISTRATOR OF THE ESTATE OF DANIEL PATTEN II, et al.,

                   Plaintiff(s),

          vs.

 

STATE OF CALIFORNIA, et al.,

                   Defendant(s),

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      CASE NO.: 21STCV46786

 

[TENTATIVE] ORDER RE: DEMURRER BY DEFENDANT STATE OF CALIFORNIA, ACTING BY AND THROUGH THE DEPARTMENT OF TRANSPORTATION TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

 

Dept. 27

1:30 p.m.

December 21, 2022

 

I.       INTRODUCTION

On December 23, 2021, plaintiff Russell Patten, individually and as the successor-in-interest to and administrator of the Estate of Daniel Patten II (“Decedent”), along with plaintiff Jennifer Patten (collectively, “Plaintiffs”), filed this action against defendants City of Carson (“City”), County of Los Angeles (“County”) (also erroneously sued as “Los Angeles County Sheriff’s Department”), as well as other governmental entities, including demurring defendant the People of the State of California, acting by and through the California Department of Transportation (“Defendant”) (erroneously sued as “State of California; California Department of Transportation”), and the California Highway Patrol.  The action arises from illegal street racing that occurred on December 25, 2020, on East 230th Street in the City of Carson.  Plaintiffs assert causes of action for general negligence and dangerous condition of public property against the governmental entities.  

          On August 8, 2022, Plaintiffs filed the operative First Amended Complaint (“FAC”).  On November 18, 2022, Defendant filed this demurrer to the Third Cause of Action of the FAC for “Vicarious Liability for Act or Omissions of Public Employees.”  Defendant argues that the cause of action is uncertain and fails to state sufficient facts to constitute a cause of action, and that the Court has no jurisdiction over this cause of action. 

On November 21, 2022, County and the Los Angeles County Sheriff’s Department filed a notice joining in the demurrer and request a joint ruling in the context of a motion for judgment on the pleadings because they have already filed an answer.  Plaintiffs’ objected to this notice of joinder on December 8, 2022, on the grounds that there is no basis for bringing a motion for judgment on the pleadings and it was untimely filed. 

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.     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).)  

          Defense counsel, Manal H. Pelch, declares that the parties met and conferred on September 28, 2022, September 29, 2022, and November 10, 2022.  The meet and confer requirement is satisfied.

Defendant argues that Plaintiffs fail to state any statutory basis of liability because Plaintiffs only cite to Civil Code section 846(d)(1), which does not create a duty of care for a public entity, but only protects landlords by limiting the duty of care owed by a private property owner to persons using their property for recreational purposes.  (Demurrer, 5:18-6:10; FAC, ¶ 32.) 

In opposition, Plaintiffs argue that they have sufficiently stated a statutory basis for vicarious liability by alleging the alleged acts and omissions by Defendant’s employees.  (See FAC, ¶¶ 31-2.) 

The Court agrees with Defendant because Plaintiffs fail to specifically identify the statutory basis for Defendant’s alleged liability.  A demurrer may be sustained where the plaintiff fails to allege a statutory basis for liability against a public entity.  (Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 863-864 [affirming trial court’s sustaining a demurrer without leave to amend as to four tort causes of action where plaintiff failed to allege statutory basis—i.e., mandatory duty under Government Code section 815.6—for liability against public entity].)  

Additionally, even if Plaintiffs cited to Government Code section 815.2, they would still fail to state a cause of action.  On December 7, 2022, the Court sustained co-defendant California Highway Patrol’s demurrer to the same third cause of action for “vicarious liability” on the grounds that there was no duty to protect absent a special relationship. 

Accordingly, Defendant’s demurrer to the Third Cause of Action is SUSTAINED without leave to amend. 

County’s joinder is not untimely because it was served on November 21, 2022 before the deadline of November 23, 2022.  Also, the failure to meet and confer before filing a motion for judgment on the pleadings is not a basis for denying the motion.  (Code CIv. Proc., § 439, subd. (a)(4).)  However, County offers no authority for the Court to rule on a demurrer and simultaneously construe that ruling as one for a motion for judgment on the pleadings.  To the extent that County “request[s] a ruling in the context of a motion for judgment on the pleadings”, the request is DENIED.  

 

IV.     CONCLUSION

Defendant’s demurrer to Plaintiffs’ Third Cause of Action is SUSTAINED without leave to amend.  County’s request is DENIED. 

 

 

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.