Judge William A. Crowfoot, Case 22STCV11765 2023-01-17 Tentative Ruling

Judge: William A. Crowfoot, Case: 22STCV11765, Date: 2023-01-17 Tentative Ruling

On April 6, 2022, Ponciano Ruiz (“Plaintiff”) commenced the present action by filing a Complaint against Los Angeles County Metropolitan Transportation Authority (“Defendant METRO”) and Does 1 through 25 (collectively “Defendants”). Plaintiff’s Complaint alleges the following causes of action: (1) Motor Vehicle; and (2) General Negligence. Plaintiff’s Complaint arises from personal injuries suffered by Plaintiff while a passenger on a public bus operated by Defendant METRO. Specifically, on approximately May 23, 2021, Plaintiff, a disabled passenger, was sitting upon his three-wheeled scooter in the mobility section of the public bus, when the bus came to sudden stop and caused Plaintiff to be thrown from his scooter onto a steel bench. Plaintiff maintains his personal injuries are attributable to the negligence of Defendant METRO’s employee-driver.

The Court presently considers Defendant METRO’s Demurrer to Plaintiff’s Complaint, which was filed on November 16, 2022. On December 19, 2022, Plaintiff filed an Opposition to Defendant METRO’s Demurrer, and thereafter, on January 6, 2023, Defendant METRO filed a Reply.

The moving party against whom a complaint or cross-complaint is directed may object by demurrer to the pleading on one of several grounds outlined by section 430.10.¿ (Code Civ. Proc., § 430.10, subd. (a)-(h).)¿ These grounds include lack of jurisdiction, lack of legal capacity to sue, uncertain pleadings, or pleadings that do not state facts sufficient to constitute a cause of action, among others.¿ (Ibid.)¿¿

A demurrer¿advanced on the ground the pleading does not state facts sufficient to constitute a cause of action “tests the legal sufficiency of the factual allegations in a complaint.”¿ (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725; Code Civ. Proc., § 430.10, subd. (e).)¿ The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.”¿ (Id.)¿ The court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]”¿ (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.)¿ The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken.”¿ (Fremont Indemnity Co v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.)¿ “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]”¿ (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)¿ ¿

Code of Civil Procedure section 430.41 requires, “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to 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).)¿ The parties are to meet and confer at least five days before the date the responsive pleading is due.¿ (Code Civ. Proc., § 430.41, subd. (a)(2).)¿ Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts.¿ (Code Civ. Proc., § 430.41, subd. (a)(3).)

Defendant METRO presently demurs to Plaintiff’s Complaint on the ground Plaintiff has failed to allege facts sufficient to constitute a cause of action, pursuant to Code of Civil Procedure section 430.10, subdivision (e). (Code Civ. Proc., § 430.10, subd. (e).)¿

The Court concludes Defendant METRO has satisfied the meet and confer requirements outlined within Code of Civil Procedure section 430.41, prior to filing the present Demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court observes, in conjunction with the instant Demurrer, Defendant METRO has filed the Declaration of David J. Ozeran, Esq., which explains Defendant’s counsel called Plaintiff’s counsel three times for the purposes of meeting and conferring with respect to the objections raised by Demurrer, on November 11^th, 14^th, and 15^th, leaving voicemail messages requesting a return phone call. (Ozeran Decl., ¶ 3.) Despite Defendant METRO’s efforts, Plaintiff has failed to return Defendant’s counsel’s phone calls in order to engage in the meet and confer process. (Ibid.) The Court concludes the aforementioned efforts are sufficient to satisfy the meet and confer requirements outlined within Code of Civil Procedure section 430.41. (Code Civ. Proc., § 430.41, subd. (a)(3) [“The demurring party shall file and serve with the demurrer a declaration stating either of the following: . . . (B) That the party who filed the pleading subject to demurrer failed to response to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”].)

Preliminarily, the Court concludes Defendant METRO’s Demurrer is procedurally defective. California Rules of Court, rule 3.1320 mandates, “[e]ach ground of demurrer must be in a separate paragraph and must state where it applies to the entire complaint . . . or to specified causes of action . . . .” (Cal. Rules of Court, rule 3.1320, subd. (a).) The Court observes Defendant METRO’s Demurrer fails to state the grounds for demurrer in separate paragraphs, and fails to specify whether Defendant’s Demurrer is made to the entire complaint or to specified causes of action. Defendant METRO’s Demurrer states Defendant “does demur to the plaintiff’s complaint pursuant to Code of Civil Procedure section 430.10(e) on the grounds that the complaint fails to allege facts sufficient to state a cause of action, because the complaint does not state facts demonstrating compliance with the Tort Claim Act, and specifically, Government Code section 945.6(a)(1), and therefore fails to state facts sufficient to constitute a cause of action.” (Notice of Dem., at pp. 1:27-2:3.) The Court mostly takes issue with Defendant METRO’s failure to specify whether the present Demurrer is made as to Plaintiff’s First Cause of Action, Second Cause of Action, or both.

However, despite Defendant METRO’s noncompliance with California Rules of Court, rule 3.1320, subdivision (a), the Court concludes such noncompliance has not prejudiced Plaintiff and, thus, the Court exercises its discretion to consider the merits of the instant Demurrer. The Court observes Plaintiff’s First Cause of Action for “Motor Vehicle” and Second Cause of Action for “General Negligence”, both sound in negligence. (Compl., at pp. 4-5.) The Court further observes Defendant METRO’s demurring argument, which is made pursuant to the Tort Claim Act, is applicable to all causes of actions sounding in negligence brought against a government entity, such as Defendant METRO. Considering this fact, in conjunction with Defendant METRO’s statement that the Demurrer is brought against “plaintiff’s complaint”, it appears evidently clear Defendant METRO’s Demurrer is made against Plaintiff’s whole Complaint, including the First and Second causes of action. (Notice of Dem., at pp. 1:27-2:3.) Additionally, the Court observes Plaintiff seemingly understood the full breadth of Defendant METRO’s Demurrer as Plaintiff responded to all of the arguments proposed therein. Accordingly, the Court concludes such noncompliance has not prejudiced Plaintiff and, thus, the Court exercises its discretion to consider the merits of the instant Demurrer.

Defendant METRO demurs to Plaintiff’s Complaint on the ground Plaintiff has failed to plead facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Specifically, Defendant METRO contends Plaintiff’s Complaint is insufficiently pled as Plaintiff has failed to allege facts demonstrating compliance with the claim presentation requirement enumerated within the Government Tort Claims Act. (Gov. Code, § 911.2, subd. (a).)

The California Tort Claims Act “establishes certain conditions precedent to the filing of a lawsuit against a public entity.” (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) A plaintiff seeking to sue a local public entity for money or damages must first present a government claim to that local public entity within six months after the accrual of the cause of action. (Gov. Code, §§ 905, 915, subd. (d), 911.2, subd. (a) [“A claim relating to a cause of action for . . . injury to person or to personal property . . . shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.”].) A plaintiff’s failure to timely file a claim for money or damages with the public entity “bars the plaintiff from bringing suit against that entity.” (State of California, supra, 32 Cal.4th at p. 1235; Gov. Code, § 945.4.) Most relevantly, a plaintiff’s “failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.” (State of California, supra, 32 Cal.4th at pp. 1239, 1243 [“In light of this overwhelming case law and history, we conclude that a plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement. Otherwise, his [or her] complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action.”].)

Following a review of the allegations included within Plaintiff’s operative Complaint, the Court concludes Plaintiff’s Complaint is properly subject to Defendant METRO’s Demurrer as Plaintiff has failed to plead any facts, whatsoever, demonstrating or excusing compliance with the claim presentation requirement enumerated within the Government Tort Claims Act. (Gov. Code, § 911.2, subd. (a).) The Court observes, by Plaintiff’s own allegations, Defendant METRO is a public entity (Compl., ¶ 5a(4)) and, therefore, Plaintiff was required to allege sufficient facts demonstrating or excusing compliance with the aforementioned claim presentation requirement. (State of California, supra, 32 Cal.4th at pp. 1239, 1243.) The Court further observes Plaintiff’s Complaint is made upon a Judicial Council Form, entitled “Complaint—Personal Injury, Property Damage, Wrongful Death”, which includes a pre-drafted section where Plaintiff is permitted to allege facts demonstrating compliance or excusing compliance with the claim presentation requirement. (Compl., ¶ 9 [displaying a check-box which is followed by the following averment: “Plaintiff is required to comply with a claims statute, and (a.) [check box] has complied with applicable claims statutes, or (b.) [check box] is excused from complying because (specify):”].) Plaintiff has left this section of the Judicial Council Form empty, and has failed to allege facts in any other section of the Complaint demonstrating or excusing compliance with the presentation requirement. Accordingly, the Court concludes Plaintiff’s operative Complaint is subject to Defendant METRO’s Demurrer for failure to allege facts sufficient to constitute a cause of action. (State of California, supra, 32 Cal.4th at pp. 1239, 1243.)

Separately, the Court observes Defendant METRO raises a second ground for Demurrer, namely the contended untimeliness of Plaintiff’s Complaint. (Dem., at p. 4:20-23.) Defendant METRO argues Plaintiff’s Complaint is untimely as Plaintiff has failed to commence the present action within six months from the date Defendant METRO deposited the rejection of Plaintiff’s government claim in the mail, on approximately October 5, 2021. (Dem., at p. 5:1-7; Gov. Code, § 945.6, subd. (a)(1) [“any suit brought against a public entity on a cause of action for which a claim is required to be presented . . . must be commenced: (a) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail."].) In support of Defendant METRO’s argument, Defendant METRO produces, and relies upon, a copy of the rejection which was purportedly mailed to Plaintiff on October 5, 2021. (Ozeran Decl., Ex. C.) The Court refuses to consider this secondary argument advanced by Defendant METRO as the evidence upon which Defendant METRO relies (i.e., rejection of Plaintiff’s government claim) has not been properly authenticated by the declaration to which the document is attached and, more importantly, Defendant METRO has failed to request judicial notice of this document in order to allow consideration of the same upon demurrer. (Ozeran Decl., ¶¶ 1-3 [accompanying declaration is silent as to the truth or accurateness of the documents attached]; Code Civ. Proc., § 430.30, subd. (a) [upon demurrer, the court may consider those allegations upon the face of the complaint, as well as those matters which have been judicially noticed].) Accordingly, the Court refuses to consider the aforementioned argument at this juncture.

Defendant METRO’s Demurrer to Plaintiff’s Complaint is SUSTAINED, with twenty (20) days leave to amend.

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.

Hon. Kerry Bensinger

Judge of the Superior Court