Judge: William A. Crowfoot, Case: 22STCV14659, Date: 2022-09-01 Tentative Ruling

Case Number: 22STCV14659    Hearing Date: September 1, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On May 3, 2022, plaintiff Ingrid Ortiz filed this action against defendants City of Los Angeles, County of Los Angeles, Newhall School District, Los Angeles Unified School District, Wiley Canyon Elementary School, Storer Transportation Service, and Doe Bus Driver for (1) negligence, (2) liability for the wrongful act or omissions by public entity employees, Government Code § 815.2, (3) violation of duties and responsibilities as a common carrier per Civil Codes §§ 2100, 2101, and 2103.

          On June 1, 2022, Plaintiff dismissed the action as to County of Los Angeles.

          On June 6, 2022, Defendant Newhall School District filed a Cross-Complaint against Roes 1 through 20 for (1) implied indemnity; (2) contribution and indemnity; (3) declaratory relief; (4) express indemnity; (5) breach of contract; and (6) duty to defend.

          On August 1, 2022, Defendant Storer Transportation Service filed the instant demurrer. Plaintiff opposes.

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

A.           Meet and Confer

Before filing a demurrer or motion to strike, 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); 435.5, subd. (a).) 

          Defense counsel Seta Sarabekian declares that counsels met and conferred prior to filing this motion. (Sarabekian Decl., ¶¶2-3.)

          Based on the foregoing, the Court concludes that Defendant satisfied its meet and confer obligations. 

B.           Demurrer

1.           First Cause of Action: Negligence

Defendant demurs to the first cause of action for negligence on the basis that it is uncertain and does not state facts sufficient to constitute a cause of action. Defendant points out that the Complaint alleges that Defendant is a public entity. Defendant does not confirm whether it is a public entity, but the Court takes the matters asserted in the Complaint as true. Thus, the Court treats Defendant as a public entity for purposes of this demurrer.

“The California Tort Claims Act provides that ‘a public entity is not liable for an injury,’ ‘except as otherwise provided by statute.’ (Gov. Code, § 815, subd. (a).) As that language indicates, the intent of the Tort Claims Act is to confine potential governmental liability, not expand it.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179.)  

Public entities cannot be liable for common law theories of general negligence. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [“section 815 abolishes common law tort liability for public entities”].) Therefore, liability against a public entity must be authorized by statute. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815, subd. (a) [“A public entity is not liable for an injury . . . except as otherwise provided by statute”].) “Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. [Citation]. However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)  

“[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ . . . and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) 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].) 

As this is a common law negligence claim with no statutory basis, the claim may not be asserted against Defendant. Accordingly, the demurrer to the first cause of action is SUSTAINED with leave to amend.

2.           Second Cause of Action: Government Code § 815.2

Defendant demurs to this cause of action for failure to state sufficient facts based on a failure to allege compliance with the claims statute by presenting a written claim to the public entity prior to filing suit.

Under the Government Claims Act, the general rule is that any party with a claim for money or damages against a public entity must first file claim directly with that entity; only if that claim is denied or rejected may the claimant file a lawsuit. (Gov. Code §§ 905, 945.4; City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894.) This provides the public entity with an opportunity to evaluate the claim and make a determination as to whether it will pay on the claim. (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474.) Failure to timely file a tort claim renders the complaint subject to demurrer. ¿(V.C. v. Los Angeles Unified School Dist.¿(2006) 139 Cal.App.4th 499, 509, affirming trial court decision to sustain demurrer without leave to amend because V.C.’s failure to timely comply with the requirements of the Government Claims Act barred her action.) A complaint subject to the Tort Claims Act must allege facts showing compliance with the act or allege facts excusing non-compliance. (State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.) 

As Plaintiff has not alleged compliance with the claim requirement, the demurrer to the second cause of action is SUSTAINED with leave to amend.

3.   Third Cause of Action: Common Carrier Per Civil Code §§ 2100, 2101, and 2103

Defendant demurs to the third cause of action based on failure to state sufficient facts and uncertainty. Defendant argues that the alleged facts are conclusory and do not allege what transpired, who plaintiff was, who defendants are, and what the parties’ roles, duties, and breaches were. The Court agrees. The Complaint merely alleges that Plaintiff was thrown due to a dangerous condition in a bus. As stated above, to state a cause of action against a public entity based on statutory liability, every essential fact must be pled with particularity. Accordingly, the facts pled are insufficient against Defendant.

The demurrer to the third cause of action is SUSTAINED with leave to amend.

IV.     CONCLUSION

Moving Defendant’s demurrer is SUSTAINED in its entirety with 20 days’ leave to amend.

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.