KRIKOR ANTOUNIAN, ET AL. VS TIMOTHY MICHAEL MOEN, ET AL.

Tentative Rulings

Case Number: 20STLC03811    Hearing Date: March 8, 2021    Dept: 25

HEARING DATE: Mon., March 8, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Antounian, et al. v. Moen, et al. COMPL. FILED: 05-05-20

CASE NUMBER: 20STLC03811 DISC. C/O: 10-03-21

NOTICE: OK DISC. MOT. C/O: 10-16-21

PROCEEDINGS: MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Defendant City of Los Angeles

RESP. PARTY: Plaintiff Zarmine Antounian only

MOTION FOR JUDGMENT ON THE PLEADINGS

(CCP § 438, et seq.)

TENTATIVE RULING:

Defendant City of Los Angeles’ Motion for Judgment on the Pleadings is GRANTED IN PART. Defendant’s Motion as to the entire Complaint due to Plaintiffs’ failure to allege she presented a timely government claim is GRANTED. Plaintiff Zarmine is GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT.

However, as the parties agree that the second cause of action for negligent hiring is duplicative and should be dismissed, the Motion as to the second cause of action is MOOT.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on February 23, 2021 [ ] Late [ ] None

REPLY: None filed as of March 3, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On May 5, 2020, Plaintiffs Krikor Antounian (“Krikor”) and Zarmine Antounian (“Zarmine”) (collectively, “Plaintiffs”) filed an action against Timothy Michael Moen (“Moen”) and the City of Los Angeles (“City”) alleging negligence and negligent hiring. Defendant City filed an Answer on August 18, 2020.

Defendant City filed the instant Motion for Judgment on the Pleadings (the “Motion”) on August 28, 2020. Plaintiff Zarmine only filed an Opposition on February 23. The Court notes that the Opposition states Plaintiff Krikor has settled the matter with Defendant City (Oppo., p. 2, fn. 1) but he has not yet been dismissed from the action.

No reply brief was filed.

1. Request for Judicial Notice

Defendant City requests judicial notice of the claim for damages filed by Plaintiff Krikor Antounian on July 6, 2018. (Mot., RJN, Exh. 1.)

Defendant City’s request is GRANTED. (Evid. Code, § 452, subd. (c); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369.)

1. Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

When the moving party is a defendant, he must demonstrate either of the following exist:

(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(a)(B)(i)-(ii).)

Additionally, a motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)

1. Discussion

The Motion is accompanied by a meet and confer declaration. (Mot., Rawlins Decl., ¶ 2.)

The Complaint alleges, in pertinent part, the following: (1) that on or about May 3, 2018, Defendant Moen operated the vehicle he was driving so negligently and carelessly, he collided into Plaintiff Krikor’s vehicle; (2) that Plaintiff Zarmine was a passenger in Plaintiff Krikor’s vehicle; (3) that the vehicle Defendant Moen was operating was a green trash vehicle owned by the City; (4) that as a result of the accident caused by Defendant Moen, Plaintiffs sustained personal injuries and damages. (Compl., ¶¶ 9-16.)

A. Presentation of a Timely Government Claim

As to Defendant Zarmine, Defendant City argues the Motion should be granted in its entirety because her claims against the City are barred due to her failure to present a timely government claim in her name. (Mot., p. 2:3-4.)

The California Tort Claims Act establishes certain conditions that a plaintiff must meet before filing a lawsuit against a public entity. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1235.) The failure to satisfy those conditions bars the plaintiff from bringing suit against the entity. (Id.)

A claim against a local public entity, which includes a city, for money or damages must first be presented to the public entity for review and consideration. (Gov’t Code, § 900.4, 905.) A claim relating to a cause of action for personal injuries or to personal property must be presented no later than six months after the accrual of the cause of action. (Gov’t Code, § 911.2, subd. (a).) “When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim” within a reasonable time but not to exceed one year. (Gov’t Code, § 911.4, subds (a), (b).)

The “failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.” (State of California v. Superior Court, supra, 32 Cal.4th at p. 1239.) Here, Plaintiff Zarmine does not allege she complied with the claim presentation requirement. On this basis alone, the Complaint fails to state a cause of action against Defendant City. However, in the interest of completeness, the Court also addresses Defendant City’s other arguments as follows:

Relying on Nguyen v. Los Angeles County Harbor/UCLA Medical Center (1992) 8 Cal.App.4th 729, 732) and on the claim presented by Plaintiff Krikor, which has been judicially noticed, Defendant City argues that a plaintiff’s failure to file a timely government claim in her own name bars that plaintiff’s causes of action. (Dem., p. 4:15-5:19.)

In Nguyen, a minor child brought a medical malpractice claim against a hospital for personal injuries as a result of negligent treatment and the child’s parents filed their own claims for negligent infliction of severe emotional distress. (Nguyen v. County of Los Angeles, supra, 8 Cal.App.4th at 729.) The parents did not file their own claim and did not otherwise describe their injury. (Id. at p. 731-32.) The court of appeals stated that “[i]n numerous cases, appellate courts have held that when, as here, an injured party timely files a claim with a government entity and another party also injured in that same transaction seeks to pursue a suit against the government entity without filing a separate claim, the second injured party may not rely on the claim filed by the original claimant if the injury suffered by the second injured party was separate and distinct. [Citations.]” (Id. at p. 734.) Applying this reasoning, the court of appeals held that “[t]he plaintiffs’ parents’ causes of action for negligent infliction of severe emotional distress arose out of the same transaction as their daughter’s medical malpractice claim…[but] the injuries suffered by the plaintiff parents were separate and distinct from those suffered by their daughter..” (Id.) Similarly, as Defendant City points out, the Court in Castaneda v. Department of Corrections and Rehabilitation (2013) 212 Cal.App.4th 1051, 1062, stated that “[w]hen people suffer separate and distinct injuries from the same act or omission, they must each submit a claim” and that “[o]ne claimant cannot rely on a claim presented by another.” (Dem., p. 5:1-7.)

However, the Court notes that “ ‘[i]t is not the purpose of the claims statutes to prevent surprise. Rather, the purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and settle them, if appropriate, without the expense of litigation. [Citations.] It is well-settled that claims statutes must be satisfied even in [the] face of the public entity’s actual knowledge of the circumstances surrounding the claim. Such knowledge-standing alone-constitutes neither substantial compliance nor basis for estoppel.’ [Citation.] (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.) In Gong, the Court sustained a defendant city’s demurrer without leave to amend as to certain tort causes of action because the plaintiff’s claims presented to the public entity did not “fairly reflect” the causes of action subsequently brought. (Id. at p. 376.) The same is not true here.

The claim Plaintiff Krikor submitted, dated and filed July 6, 2018, which has been judicially noticed pursuant to Defendant City’s request, states the following:

“Q: How did DAMAGE or INJURY occur? Please include as much detail as possible.

A. Timothy Michael Moen made an unsafe lane change on White Oak Avenue, just before Delano Street, striking Krikor Antounian’s passenger side of his vehicle. Zarmene [sic] Antounian was a front seat passenger at the time of the accident.

…

Q: What particular ACT or OMISSION do you claim caused the injury or damage? Please give the names of City employees causing the injury or damage and identify any vehicles involved by license plate number, if known.

A: Timothy Michael Moen, driver of a green 2013 Peterbilt Truck with California License Plate Number 1393014, made an unsafe lane change in violation of California Vehicle Code 22107. As a result, he struck the passenger side of Krikor Antounian’s vehicle. Zarmene [sic] Antounian was a front seat passenger.

…

Q: What DAMAGE or INJURIES do you claim resulted? Please give full extent of injuries or damages claimed:

A: Property damage to Krikor Antounian’s vehicle and personal injuries to both Krikor Antounian and Zarmeme [sic] Antounian.”

(Mot., RJN, Exh. 1.) (Emphasis added.)

The above demonstrates that Plaintiff Krikor submitted a timely claim and that the claim identified Plaintiff Zarmine as having suffered personal injuries in the same accident Plaintiff Krikor reported. The Complaint seeks damages for the personal injuries identified Thus, not only did Defendant City have knowledge of the circumstances surrounding Plaintiff Zarmine's claim, but this may have provided Defendant City with sufficient information to enable it to adequately investigate Plaintiff Zarmine's claim. The case law cited by Defendant City holding that one plaintiff cannot rely on the claim filed by another does not clearly apply to the instant action, where Plaintiffs filed one claim under one Plaintiff’s name but provided arguably sufficient information to investigate both claims.

Thus, an exception to the mandatory claims requirement may apply to this case, and Plaintiff Zarmine should be given an opportunity to amend her Complaint to properly identify and plead an exception.

For the reasons discussed above, the Motion is GRANTED, but Plaintiffs are 20 DAYS LEAVE TO AMEND as to the first cause of action.

B. Second Cause of Action – Negligent Hiring

Defendant City argues that Plaintiff’s first cause of action for negligence and second cause of action for negligent hiring are duplicative of each other as they both assert respondeat superior liability for the negligence of the driver of the green trash vehicle. (Mot., p. 7:1-2.) It further argues that because Defendant City “will, as a matter of law, be held liable for any breach of any duty owed by it to plaintiff, caused by a negligent act or omission of City, plaintiff’s negligent hiring cause of action is unnecessary, irrelevant, and inflammatory.” (Id. at pp. 8:21-9:2.) Where one cause of action is duplicative of another, it is subject to demurrer or motion for judgment on the pleadings. (Palm Springs Villas III Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

In her opposition, Plaintiff Zarmine concedes that her second cause of action “suffers from over inclusion” and agrees that the second cause of action should be dismissed. As there is no dispute between the parties as to the negligent hiring cause of action, the Motion as to the second cause of action is MOOT.

1. Conclusion & Order

For the foregoing reasons, Defendant City of Los Angeles’ Motion for Judgment on the Pleadings is GRANTED IN PART. Defendant’s Motion as to the entire Complaint due to Plaintiffs’ failure to allege she presented a timely government claim is GRANTED. Plaintiff Zarmine is GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT.

However, as the parties agree that the second cause of action for negligent hiring is duplicative and should be dismissed, the Motion as to the second cause of action is MOOT.

Moving party is ordered to give notice.