Judge: William A. Crowfoot, Case: 22STCV13267, Date: 2022-07-27 Tentative Ruling

Case Number: 22STCV13267    Hearing Date: July 27, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

           On April 21, 2022, Plaintiff Erik Denton, individually and as the Successor-in-Interest to Joanna Denton Carrillo, Terry Denton Carrillo, and Sierra Denton Carrillo, deceased, (“Plaintiff”) filed a Complaint against Defendants City of Los Angeles, County of Los Angeles, and Does 1 through 50, inclusive alleging the following causes of action: (1) Negligence of Public Entity Employees, against Defendants City of Los Angeles and Does 1-25, inclusive, (2) Public Entity Negligence, against Defendants City of Los Angeles and Does 1-25, inclusive, (3) Negligence of Public Entity Employees, against Defendants County of Los Angeles and Does 26-50, inclusive, and (4) Public Entity Negligence, against Defendants County of Los Angeles and Does 26-50, inclusive. This is a wrongful death and survivorship action arising from the death of Plaintiff Erik Denton’s three children, Joanna Denton Carrillo, Terry Denton Carrillo, and Sierra Denton Carrillo, at the hands of their mother, Liliana Carrillo.

On June 23, 2022, Defendant County of Los Angeles (hereinafter “Defendant”) filed a demurrer to Plaintiff’s Complaint. On July 14, 2022, Plaintiff filed an opposition to Defendant’s demurrer. On July 20, 2022, Defendant filed a reply to Plaintiff’s opposition.

Defendant demurs to the Fourth Cause of Action of Plaintiffs Complaint on the grounds that the Fourth Cause of Action for Public Entity Negligence is uncertain and duplicative of the Third Cause of Action for Public Entity Negligence pursuant to California Code of Civil Procedure §430.10(f) and Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.

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).)  A demurrer may also be brought if a pleading is “uncertain,” the meaning of which includes ambiguous and unintelligible.  (Code Civ. Proc., § 430.10, subd. (f).) However, “demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) “Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  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

Meet and Confer Requirement

Before filing a demurrer, the demurring or moving 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).)

The Court finds that Defendant has satisfied the meet and confer requirement in CCP section 430.41 (Raphelt Decl ¶ 4-9.)

Demurrer to Fourth Cause of Action for Public Entity Negligence

Defendant argues that Plaintiff's third and fourth causes of action are essentially duplicative. The third cause of action asserts theories of liability under Government Code sections 820, which allows liability against public employees for acts or omission to the same extent as private persons, and 815.2, pursuant to which a public entity is vicariously liable for its employees' [non-immune] negligent acts or omissions within the scope of employment. The fourth cause of action is duplicative, according to Defendant because it asserts a theory a liability under Government Code section 815.6, pursuant to which a public entity under a mandatory duty imposed by statute is liable for those injuries designed to be protected against by the statute where caused by failure to discharge the duty unless it is shown the entity exercised reasonable diligence. Defendant argues that Plaintiff's theory of liability in his fourth cause of action is essentially interchangeable with his 815.2 claim in his third cause of action, as determined by the court in Nozzi v. Housing Authority of City of Los Angeles (2015) 806 F.3d 1178 1203.  

In opposition, Plaintiff argues that the causes of action clearly are not redundant as they are based on completely different statutes each of which creates an independent basis for liability. (Opposition, pp. 3-4.) Plaintiff argues Defendant could be derivatively liable for the negligent acts or omissions of its employee, pursuant to Government Code § 815.2, or directly liable for breach of a mandatory duty, pursuant to Government Code section § 815.6. Plaintiff’s third cause of action allege the derivative liability under section 815.2 and the fourth cause of action alleges direct liability under section 815.6.

Plaintiff argues Nozzi’s holding that the elements of both claims are “virtually identical” is wrong. (Opposition, p. 5.) “The elements are not identical. One statute requires a mandatory statute or regulation designed to prevent the kind of incident at issue in the litigation, and the other requires tortious acts by an employee of a governmental entity while acting in the course and scope of his or her employment. Obviously, there may be situations where the facts giving rise to each claim overlap quite a bit—as they do here—but that doesn’t mean the legal theories and elements of proof aren’t distinct.” (Id.)

This Court agrees. Defendant’s argument for uncertainty is based on the same “virtually identical” argument discussed above. Although these theories of liability may be alleged by the same facts, involving the work of Defendant’s employees, the there is a clear difference in what the regulations were designed to enforce and protect.

In light of the foregoing, Defendants’ demurrer must be overruled.

IV.     CONCLUSION

Defendants’ demurrer to the Fourth Cause of Acton is OVERRULED 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.