Case Number: 19STCV00992 Hearing Date: May 22, 2019 Dept: 4A

Demurrer with a Motion to Strike

Having considered the demurring, moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On January 10, 2019, Plaintiff John Higginbotham (“Plaintiff”) filed a complaint against Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) alleging that he injured himself in a motor vehicle accident that occurred at the Metro Rail 7th Street/Metro Center Station on October 24, 2018.

On January 15, 2019, Plaintiff filed his First Amended Complaint (“FAC”) against Defendant alleging negligence and premises liability for injuries for a slip-and-fall that occurred on October 24, 2018.

On April 24, 2019, Defendant filed a demurrer to the FAC on the grounds that the FAC does not state sufficient facts for the negligence or premises liability causes of action and the FAC is uncertain.

Also on April 24, 2019, Defendant filed a motion to strike the negligence cause of action from the FAC, Prem.L-2 and Prem L-3 of the premises liability cause of action from the FAC, and Moving Defendant from Prem.L-5 of the premises liability cause of action from the FAC.

Trial is set for July 9, 2020.

PARTY’S REQUESTS

Defendant asks the Court to sustain its demurrer to the FAC because: (1) Plaintiff cannot maintain a general negligence claim against Moving Defendant and has failed to state specific facts alleging negligent conduct by Moving Defendant’s employee that would support vicarious liability; (2) the FAC does not state sufficient facts to support Moving Defendant’s liability for maintaining a dangerous condition on its premises liability; and (3) the FAC does not include the requisite allegations of compliance with the California Government Tort Claims Act.

Defendant also requests that the Court grant its motion to strike portions of the FAC because Government Code section 815 mandates that Defendant is only liable for statutory causes of action and multiple boxes checked on the form complaint are improper and ambiguous.

LEGAL STANDARD

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿ When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)

“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (citation omitted).)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.¿ (See Code of Civ. Proc. § 430.41.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

California Code of Civil Procedure section 435.5 requires that, before filing a motion to strike, the moving party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject of the motion for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 435.5, subd. (a)(2).) The party must also file and serve a declaration detailing the meet and confer efforts. (Code Civ. Proc. § 435.5, subd. (a)(3).)

DISCUSSION

Meet and Confer

The Court finds that Defendant has filed sufficient meet and confer declarations. (Both Glazer Decl., ¶ 2.)

Demurrer

Government Claims Act Compliance

A court may properly sustain a demurrer on the grounds when the plaintiff has failed to comply with the requirements of the Government Claims Act and the plaintiff’s noncompliance is not excused. (Olson v. Manhattan Beach Unified School Dist. (2017) 17 Cal.App.5th 1052, 1060-1064.)

Plaintiff must comply with the Government Claims Act or be excused from compliance in order to bring claims for money or damages against Moving Defendant. (See Government Code § 905, et seq.) Whichever situation is present, Plaintiff must disclose it in paragraph 9 of the form complaint. Plaintiff has not done such. As a result, Plaintiff has not indicated: (1) whether Plaintiff has complied with the Government Claims Act, and if not, (2) whether Plaintiff’s noncompliance is excused. Accordingly, Defendant’s demurrer lies on this ground.

Negligence – Direct Liability

A public entity’s direct liability must be statutorily based, not based on common law. (Gov. Code § 815; Munoz v. City of Palmdale (1999) 75 Cal.App.4th 367, 369-370.) A public entity may be vicariously liable for their employee’s conduct. (Gov. Code §§ 815.2, 820.)

The FAC does not allege that Defendant is vicariously liable for negligence. Rather, the FAC states that Defendant itself was negligent in its maintenance of the platform where Plaintiff slipped and fell. As such, the FAC fails to state a cause of action for common law negligence against Defendant pursuant to Government Code section 815.

The Court notes that Plaintiff eludes to his ability to allege vicarious liability against Defendant for the negligence of Defendant’s employees. (Opposition, p. 3:10-3:27.) As such, Plaintiff is entitled to amend his complaint.

Duplicative Causes of Action

A demurrer can be sustained due to one cause of action being duplicative of another cause of action. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

The Court finds the negligence cause of action, as currently pled, is duplicative of the premises liability cause of action. Both causes of action are predicated on the same theory of liability – Defendant’s negligence in maintaining the station platform. Similarly, Plaintiff’s causes of action for negligence and premises liability are both predicated on the same facts – Defendant allowed and failed to warn of a slippery substance on Defendant’s premises, which constituted a dangerous condition. Accordingly, the demurrer lies on the ground that the causes of action are duplicative.

Notice of Employee’s Acts

For a public entity to be liable under Government Code section 835, a plaintiff must show, among other things, either: “(a) [a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) [t]he public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

The FAC does not allege either that Defendant’s employee’s negligent or wrongful act or omission act created the dangerous condition or that Defendant had notice of the dangerous condition. As such, the demurrer lies on this ground.

Motion to Strike

The Court declines to rule on Defendant’s motion to strike as it is moot due to the Court’s sustaining of the Defendant’s Demurrer.

CONCLUSION

Defendant’s demurrer is SUSTAINED with 20 days’ leave to amend.

Defendant’s motion to strike is DENIED as MOOT.

Defendant is ordered to give notice.