Case Name: Emi Williams v. Union Pacific Railroad Co., et al.
Case No.: 16-CV-301351

I. Background

This lawsuit arises from a fatal collision at a railroad crossing near Gilroy, California. Donald Williams, the spouse of plaintiff Emi Williams (“Plaintiff”), was driving his truck on Masten Avenue. (First Amended Complaint (“FAC”), ¶ 13(j).) Mr. Williams approached the intersection at Monterey Road and the railroad tracks that run parallel to the road. (FAC, ¶ 13(j).) When the left-turn arrow turned green, Mr. Williams proceeded through the intersection and crossed the tracks to turn left onto Monterey Road. (FAC, ¶ 13(j).) At the same time, a railroad spiker was traveling in reverse along the tracks, but had not triggered and activated the crossing protections. (FAC, ¶ 13(j).) The spiker struck the passenger’s side door of Mr. Williams’s truck. (FAC, ¶ 13(j).) Mr. Williams died shortly thereafter due to positional asphyxia. (FAC, ¶ 14.)

Plaintiff commenced this lawsuit naming, among other defendants, Union Pacific Railroad Company (“UPRC”). Plaintiff asserts a cause of action for wrongful death against UPRC. Plaintiff also asserts causes of action against UPRC for negligence and liability based on Public Utilities Code section 2106 in her capacity as the successor in interest to her husband.

Currently before the Court is UPRC’s demurrer to the third cause of action for liability under Public Utilities Code section 2106 on the ground of failure to state facts sufficient to constitute a cause of action. Additionally, UPRC asks the Court to reconsider the denial of its previous motion to strike the third cause of action.

II. Request for Reconsideration

UPRC asks the Court to reconsider its previously filed motion to strike the third cause of action. (Mem. of Pts. & Auth. at p. 2:19-22.) It appears, however, that UPRC is in fact asking the Court to reconsider its previous order denying the motion. For context, the Court previously denied UPRC’s motion to strike the entirety of the third cause of action because a demurrer, not a motion to strike, is the appropriate procedural vehicle for challenging the sufficiency of an entire cause of action, and UPRC did not otherwise substantiate its argument that Plaintiff’s request for punitive damages under Public Utilities Code section 2106 was improper. (See Atterbury Decl., Ex. 2 [previous order].)

In either case, UPRC does not identify any statutory basis for its request. The only conceivable statutory basis for its request is Code of Civil Procedure section 1008 (“Section 1008”), which “applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion. . . .” (Code Civ. Proc., § 1008, subd. (e).) “No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to [Section 1008].” (Code Civ. Proc., § 1008, subd. (e).) But UPRC’s request does not comply with Section 1008.
First, UPRC’s request is untimely because it did not request reconsideration within ten days of service of the notice of entry of the order denying the motion to strike as required by Section 1008, subdivision (a). (See Atterbury Decl., Ex. 2 [Proof of Service, Dated Aug. 18, 2017].)

Additionally, UPRC’s request does not substantively comply with Section 1008, which mandates that a request for reconsideration be “based on new or different facts, circumstances, or law. . . .” (Code Civ. Proc., § 1008, subd. (a).) UPRC makes a bare request for reconsideration and does not identify any new or different facts, circumstances, or law in support thereof. In fact, its memorandum of points and authorities in support of the demurrer contains arguments simply recycled from its previous motion.

For example, UPRC presents a nearly identical argument about the pleading standard for punitive damages sought pursuant to Public Utilities Code section 2106. (Mem. of Pts. & Auth. at pp. 7-8.) UPRC argues a plaintiff must still allege malice, oppression, or fraud in accordance with Civil Code section 3294, even when seeking punitive damages pursuant to Public Utilities Code section 2106. (Mem. of Pts. & Auth. at pp. 7-8.) The problem with this argument, as the Court explained in its previous order, is that UPRC does not actually address whether the allegations in the pleading comport with the rule it espouses. In other words, it appears UPRC is simply seeking confirmation of its interpretation of the law in the abstract. But that is not the purpose of a motion to strike, and the “proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion.” (Pacific Legal Foundation v. Cal. Coastal Com. (1982) 33 Cal.3d 158, 170.)

UPRC otherwise argues that, contrary to the Court’s previous ruling, its motion to strike the entire third cause of action was not improper due its scope because the appellate court in Vander Lind v. Superior Court (1983) 146 Cal.App.3d 358 granted a motion to strike an entire cause of action. A closer reading of Vander Lind reveals the cause of action struck by the court consisted solely of punitive damages allegations. (Id. at p. 360.) In other words, although the appellate court struck what the plaintiff identified as a “cause of action,” it in fact struck only punitive damages allegations and not an entire cause of action. (Id. at p. 360.) Consequently, Vander Lind does not support the proposition that a motion to strike is the appropriate procedural vehicle for challenging an entire cause of action. (See Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29 [comparing proper grounds for demurrer with grounds for motion to strike].)

In sum, UPRC fails to identify any basis for reconsidering the previous motion or order and it is not obvious to the Court there is any other reason to do so at this time. UPRC’s request for reconsideration is therefore DENIED.

III. Demurrer

UPRC demurs to the third cause of action on the ground Plaintiff “fails to state facts sufficient to support it as a separate and distinct cause of action from the Second Cause of Action already alleged . . . .” This is not, however, a statutory ground for demurrer. “The grounds for a demurrer are those listed in Code of Civil Procedure section 430.10, including among others the failure to state facts sufficient to constitute a cause of action (id., subd. (e)).” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.) “The grounds for a demurrer differ from the reasons for sustaining a demurrer on a particular ground.” (Ibid.) Thus, here, it appears the demurrer is on the ground of failure to state facts sufficient to constitute a cause of action, and the purported ground identified by UPRC is simply a supporting argument.

Having established the actual statutory ground for UPRC’s demurrer, the Court next considers whether its supporting argument justifies sustaining a demurrer on the ground of failure to state sufficient facts. UPRC argues that Plaintiff alleges the same facts in the second and third causes of action in “an attempt to create two Survival claims based on the same set of facts, statutes, and regulations where only one claim exists.” (Mem. of Pts. & Auth. at pp. 9:22-23, 10:15-16.) UPRC does not cite any authority demonstrating a demurrer is sustainable on this basis. Consequently, it is not entirely clear if and what pleading defect it is raising in the first instance.

It appears, perhaps, UPRC’s argument is that the third cause of action is duplicative. This argument is unavailing. As the Sixth District has explained, the fact that causes of action are duplicative “is not a ground on which a demurrer may be sustained.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-90, citing Code Civ. Proc., § 430.10.) For context, “[a] quarter-century ago the code authorized a motion to strike ‘irrelevant and redundant’ matter from a pleading. [Citation.]” (Id. at p. 890, original italics.) “But the parallel provision now empowers the court only to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Ibid., quoting Code Civ. Proc., § 436, subd. (a).) “The elimination of the reference to redundancy may have rested on the irreproachable rationale that it is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness. (See Civ. Code, § 3537 [‘Superfluity does not vitiate.’].)” (Ibid.) “This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Ibid.)

UPRC also describes Plaintiff as impermissibly “attempt[ing] to split [her] [s]urvival claim into two separate actions . . . .” (Mem. of Pts. & Auth. at p. 9:15-16.) The Court is unaware of any case recognizing such a pleading defect. In any event, this statement reflects UPRC fundamentally misunderstands the nature of survival actions and may be misinterpreting jurisprudence on claim splitting, a practice that is not actually implicated here. To ensure the Court’s interpretation and evaluation of UPRC’s argument is abundantly clear, these concepts are addressed herein.

First, although commonly referred to as a survival claim or survival action, “survival” is not a “cause of action” within the traditional meaning of the phrase. (See County of Los Angeles v. Super. Ct. (1999) 21 Cal.4th 292, 295; accord Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1256, 1264.) “Survival” is a theory of standing, and it is so named because the decedent’s causes of action survive his or death. (Quiroz, supra, 140 Cal.App.4th at p. 1264, citing Code Civ. Proc., § 377.30.) Although the causes of action are personal to the decedent and arise from the personal injuries he or she sustained while alive, the survival statute allows a third party who would ordinarily lack standing to seek redress for those injuries, specifically the decedent’s successor in interest, to assert the “surviving” causes of action on behalf of the decedent. (Ibid.) It follows that a demurrer is not sustainable on the basis a plaintiff does not state a cause of action for “survival” because there is no such cause of action. (Ibid.) Thus, to the extent UPRC is arguing no “survival” cause of action has been stated, this argument does not justify sustaining the demurrer.

Rather, a defendant may demur to a surviving cause of action on the basis no underlying cause of action has been stated. (See, e.g., Nunn v. State of California (1984) 35 Cal.3d 616, 626-27.) Yet, UPRC does not clearly advance such an argument. Moreover, any assertion that Public Utilities Code section 2106 does not authorize a statutory claim or give rise to a recognized cause of action is wholly without merit. (See, e.g., Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 731-33; Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 10-11.) Thus, there is no basis for concluding no underlying cause of action has been stated.

Having clarified that “survival” is not a cause of action, the remaining question is whether a plaintiff may “split” a cause of action. To answer this question, it is necessary to first define the term “cause of action” as it is traditionally used. For context:

The primary right theory is a theory of code pleading that has long been followed in California. It provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.]

(Crowley v. Katleman (1994) 8 Cal.4th 666, 681.)

Accordingly, although attorneys commonly use the phrase “cause of action” to refer to different counts based on distinct legal theories, “the phrase ‘cause of action’ has a more precise meaning: The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) Significantly, a cause of action is entirely “distinguish[able] from the legal theory on which liability for that injury is premised . . . .” (Crowley, supra, 8 Cal.4th at pp. 681-82, original italics.) Thus, the violation of a single primary right still gives rise to only one “cause of action,” even if a plaintiff relies on multiple theories of liability. (Ibid.; see also Boeken, supra, 48 Cal.4th at pp. 797-98.) “The manner in which a plaintiff chooses to organize his or her claims within the body of the complaint is irrelevant to determining the number of causes of action alleged under the primary right theory.” (Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257.)

With this distinction between “causes of action” and “counts” based on different theories of liability in mind, the Court turns to the issue of “claim splitting” or “splitting” causes of action. “The primary right theory has a fairly narrow field of application [and] is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits.” (Crowley, supra, 8 Cal.4th at p. 682.) In other words, a plaintiff cannot “split” a cause of action by asserting duplicative causes of action in multiple lawsuits. (Ibid.) “The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement (Code Civ. Proc., § 430.10, subd. (c)); [citations] or (2) if the first suit has terminated in the judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata [citation].” (Ibid.)

UPRC does not make a res judicata argument or a plea in abatement. UPRC does not assert, and there is no basis for concluding, there is some other duplicative lawsuit, past or pending. Consequently, Plaintiff has not impermissibly split her claim in the traditional sense. To be sure, pleading multiple counts is not the same as pleading multiple causes of action. Thus, Plaintiff does not, by definition of the term “cause of action,” split causes of action by pleading multiple theories of liability for the same injury. UPRC’s argument, to the extent it is relying on the traditional prohibition of claim splitting, lacks merit.

In light of this conclusion, the only remaining possibility is that UPRC is taking issue with the form of the pleading alone. To the extent UPRC’s position is that the causes of action are improperly labeled or organized, this argument does not justify sustaining the demurrer. When evaluating the legal sufficiency of a pleading, a court is not bound by the label on a cause of action. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Ibid.) Consequently, even assuming arguendo UPRC is correct that the second and third causes of action are really just one cause of action, the demurrer is not sustainable simply because they are mislabeled or disorganized.

UPRC does not actually argue, regardless of the label on the third cause of action, that no cause of action is stated under any theory. UPRC does not identify the absence of any essential elements in the third cause of action. Additionally, for example, UPRC does not argue the third cause of action borrows allegations from the second cause of action but lacks additional allegations necessary to state some other claim in particular. In sum, UPRC does not identify a recognized pleading defect that justifies sustaining its demurrer.

Based on the foregoing, the demurrer to the third cause of action is OVERRULED.

The Court will prepare the order.