Case Number: 19STCV18248 Hearing Date: February 14, 2020 Dept: 32

Superior Court of California
County of Los Angeles
Department 32

sharon ratliff witt,

Plaintiff,

vs.

los angeles unified school district, et al.,

Defendants.

Case No.: 19STCV18248

Hearing Date: February 14, 2020

[TENTATIVE] order RE:

DEMURRER TO first amended complaint

Department #32 will be dark for motions on February 14, 2020. Each party is ordered to email the Court’s clerk at SSCDept32@lacourt.org before 1:30 p.m. that day to inform the clerk whether you are submitting on the Court’s tentative or whether you are requesting a hearing. If any party requests a hearing, one will be scheduled. If you do not request a hearing or fail to email the Court’s clerk before 1:30 p.m. on the date of the hearing, you will waive the right to be heard and shall submit to this tentative order, which shall issue.

Background

Plaintiff Sharon Ratliff Witt (“Plaintiff”) filed this action following a motor vehicle collision with a school bus driven by Victor Roman (“Defendant Roman”) and owned by the Los Angeles Unified School District (“LAUSD”). Plaintiff filed a first amended complaint asserting the following causes of action: (1) Statutory liability under Government Code section 815.2(a); (2) Reckless Misconduct/Gross Negligence/Violations of Civil Code section 1714; and (3) Negligence. Now, Defendant Roman demurs to the third cause of action, which is sustained with leave to amend. Defendant Roman also moves to strike the prayer for punitive damages and all related allegations, which is granted with leave to amend.

LEGAL STANDARD

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (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.)

DISCUSSION

Plaintiff alleges the following against Defendant Roman in the third cause of action:

Defendant ROMAN further carelessly and negligently supervised, managed, instructed, selected, hired, engaged trained, [sic] and permitted its employees, including defendant ROMAN, resulting in injuries to Plaintiff.

At all relevant times, Defendant ROMAN and Does 1 to 20, each of them, so carelessly and negligently supervised their agents and employees, and allowed the above-referenced misconduct by their agents and authorized representatives to occur, and in so allowing such misconduct, caused the herein-alleged injuries and damage to Plaintiff.

(First Amended Complaint, ¶¶ 39-40.) There are several problems with these allegations. Plaintiff appears to assert a cause of action for negligent supervision against Defendant Roman. However, Plaintiff does not allege that Defendant Roman supervised anyone. To the contrary, Plaintiff suggests that Defendant Roman was the employee who drove the bus at issue. These contradictory allegations cannot support a claim against Defendant Roman. If Plaintiff intends to assert a claim for negligent supervision against Defendant Roman, she must indicate who he supervised (e.g., the driver of the bus). If Plaintiff intends to assert a claim for negligence against Defendant Roman based upon his own conduct, she must make clear that the negligence claim is against him directly and remove allegations that he negligently supervised employees.

The Court also grants Defendant Roman’s motion to strike the prayer for punitive damages and all related allegations. In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, internal citations and footnotes omitted.)

In the first amended complaint, Plaintiff alleges that Defendant Roman “[k]nowingly and intentionally perform[ed] unsafe actions on the subject roadway in direct disregard for the safety of members of the public, including Plaintiff.” (First Amended Complaint, ¶ 24(a).) Plaintiff alleges no facts to support this conclusion. As discussed in the Court’s prior order, Plaintiff cannot predicate a claim for punitive damages on conclusory allegations. More important, some of Plaintiff’s allegations are unclear. For example, Plaintiff alleges that Defendant Roman “[k]knowingly and intentionally abus[ed] defendants’ law enforcement signals and sirens in order to willfully disregard traffic signals where there was no legal justification for defendants to act, knowingly presenting a danger to the public and Plaintiff specifically.” (Id., ¶ 24(b).) Plaintiff alleges that this accident involved an LAUSD bus and not a law enforcement vehicle. Nor does Plaintiff allege clearly what happened with respect to these law enforcement signals (e.g., Defendant Roman activated his lights and sirens without justification and entered the intersection against the red light). It appears that Plaintiff’s counsel simply included boilerplate allegations from another case involving a law enforcement vehicle. Therefore, the motion to strike is granted with leave to amend.

Conclusion and Order

Roman’s demurrer is sustained with leave to amend. Roman’s motion to strike the punitive damages allegations is granted with leave to amend. Plaintiff shall file a second amended complaint within ten (10) days of notice of this order. Defendant Roman shall provide notice and file proof of such with the Court.

DATED: February 14, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court