ROSA AGUIRRE VS LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY

Tentative Rulings

Case Number: 19STLC03762    Hearing Date: March 11, 2020    Dept: 25

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Los Angeles County Metropolitan Transportation Authority’s Demurrer to Plaintiff’s First Amended Complaint is PLACED OFF CALENDAR AS MOOT. The Court to sign Proposed Order pursuant to the parties’ Stipulation.

ANALYSIS:

1. Background & Discussion

On April 16, 2019, Plaintiff Rosa Aguirre (“Plaintiff”) filed an action against Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”). On August 14, 2019, Plaintiff filed a First Amended Complaint (“FAC”) alleging negligence and dangerous premises liability. Plaintiff alleges she suffered injuries after she boarded one of Defendant’s trains, which began jerking as it took off, causing Plaintiff to slip and fall. (FAC, ¶ 9.)

On November 21, 2019, Defendant filed the instant Demurrer to Plaintiff’s First Amended Complaint (the “Demurrer”). Defendant demurred to Plaintiff’s second cause of action for dangerous premises liability. No opposition was filed.

On January 21, 2020, the Court continued the hearing on the Demurrer due to deficiencies in the required meet and confer declaration. (1/21/20 Minute Order.)

On February 14, 2020, the parties filed a Stipulation to Strike Second Cause of Action from Plaintiff’s Complaint (the “Stipulation”) and a Proposed Order. Parties stipulated that the second cause of action for dangerous premises failed to state a cause of action against Defendant and therefore should be stuck from the Plaintiff’s operative Complaint. (2/14/20 Stipulation.) The parties also agreed that Plaintiff would not make a claim for dangerous premises at a later time in this action. (Id.)

As the parties have resolved the subject of Defendant’s demurrer, the hearing is PLACED OFF CALENDAR AS MOOT.

1. Conclusion & Order

Defendant Los Angeles County Metropolitan Transportation Authority’s Demurrer to Plaintiff’s First Amended Complaint is PLACED OFF CALENDAR AS MOOT. The Court to sign Proposed Order pursuant to the parties’ Stipulation.

Moving party to give notice.

Case Number: 19STLC03762    Hearing Date: January 21, 2020    Dept: 25

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Los Angeles County Metropolitan Transportation Authority’s Demurrer to Plaintiff’s First Amended Complaint is CONTINUED to MARCH 11, at 10:30 a.m in DEPT. 25. Defendant is ordered to file a supplemental declaration satisfying the meet & confer requirement.

ANALYSIS:

1. Background

On April 16, 2019, Plaintiff Rosa Aguirre (“Plaintiff”) filed an action against Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”). On August 14, 2019, Plaintiff filed a First Amended Complaint (“FAC”) alleging negligence and dangerous premises. Plaintiff alleges she suffered injuries after she boarded one of Defendant’s trains, which began jerking as it took off, causing Plaintiff to slip and fall. (FAC, ¶ 9.)

On November 21, 2019, Defendant filed the instant Demurrer to Plaintiff’s First Amended Complaint (the “Demurrer”). To date, no opposition or reply briefs have been filed.

1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

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. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

1. Discussion

1. Meet and Confer Requirement

Defendant’s counsel, Peter Crossin (“Crossin”), submits a declaration stating that on September 2, 2019, his partner, William Glazer (“Glazer”) sent a detailed meet and confer letter to Plaintiff’s counsel and followed-up by email on October 1, 2019 after not receiving a response. (Demurrer, Crossin Decl., ¶ 2.) Glazer does not submit a declaration, and Crossin does not state how he knows Glazer sent the meet and confer letter, how he knows Plaintiff did not respond, or how he knows Glazer sent a follow-up e-mail to Plaintiff. A copy of the alleged letter and follow-up email are also not submitted.

Declarations submitted in support of a motion must be based on personal knowledge of the facts stated, not on hearsay or conclusions. (Pajaro Valley Water Mgmt. Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1107.) Because the statements in Crossin’s declaration do not demonstrate they are made with personal knowledge, the Court finds Crossin’s declaration does not satisfy the meet and confer requirement.

For the sake of completeness, the Court also addresses the following points regarding the merits of the Demurrer.

1. Uncertainty

Defendant argues that Plaintiff’s second cause of action for dangerous premises is uncertain. (Demurrer, p. 3.)

“A party may demur to a complaint or cross-complaint on the ground that it does not state facts sufficient to constitute a cause of action [CCP §¿430.10(e)]. This is known as a “general” demurrer, while all other grounds for demurrer listed under CCP §¿430.10 are referred to as “special” demurrers.” (1 MB Practice Guide: CA Pretrial Civil Procedure, § 11.08.) Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Thus, this Court does not have jurisdiction to hear Defendants’ demurrer on the ground of uncertainty.

1. Failure to State Sufficient Facts to Constitute a Cause of Action

Defendant also argues that Plaintiff’s second cause of action fails to state sufficient facts to constitute a cause of action. Specifically, Defendant argues that the FAC is “devoid of any description or reference to a physical dangerous condition at the station or upon the train which caused Plaintiff’s incident.” (Demurrer, p. 4:8-10.)

Government Code section 835 provides:

“[A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff established that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that 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) the public entity had actual or constructive notice of the dangerous conditions under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

A dangerous condition means “a condition of property that creates a substantial…risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used” (Gov. Code, § 830, subd. (a).) A dangerous condition exists when “public property ‘is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself’ or possess physical characteristics in its design, location, features, or relationship to its surroundings that endanger its users.” (Huerta v. City of Santa Ana (2019) 39 Cal.App.5th 41, 48; Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 131.)

Plaintiff’s FAC alleges that Defendant has a duty to use utmost care and diligence to protect its passengers from unreasonable and foreseeable harm on all property owned and controlled by it (FAC, ¶ 23), that Defendant has a special relationship that is one of common carrier and passenger (Id. at ¶ 24), that although Defendant has a history of patrons falling on its trains, it refuses to adopt practices to reduce or eliminate the “kind and type of hazard and injuries suffered Plaintiff,” (Id. at ¶ 25), that Defendant failed to train its personnel to observe and monitor the disabled as they boarded the train which “resulted in the kind and type of injuries suffered Plaintiff,” (Id. at ¶ 26), and that as a result of Defendant’s actions, Plaintiff sustained physical and non-physical injuries (Id. at ¶ 27.)

However, Plaintiff’s FAC does not allege or describe a dangerous condition and merely repeats the allegations set forth under Plaintiff’s first cause of action for negligence. (FAC, pp. 3-4.) A cause of action for dangerous premises cannot be based on general principles of negligence. (See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1131-32.) Indeed, Section 835 “sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) Thus, Plaintiff’s second cause of action does not state sufficient facts to constitute a cause of action for dangerous premises.

1. Conclusion & Order

Defendant Los Angeles County Metropolitan Transportation Authority’s Demurrer to Plaintiff’s First Amended Complaint is CONTINUED to MARCH 11 at 10:30  a.m. in DEPT. 25. Defendant is ordered to file a supplemental declaration satisfying the meet & confer requirement.

Moving party to give notice.