This case was last updated from Los Angeles County Superior Courts on 06/12/2019 at 14:04:56 (UTC).

BARBARA BAKER VS CITY OF LOS ANGELES

Case Summary

On 10/25/2017 BARBARA BAKER filed a Personal Injury - Other Personal Injury lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1064

  • Filing Date:

    10/25/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Petitioner and Plaintiff

BAKER BARBARA

Defendants and Respondents

DOES 1 TO 150

LOS ANGELES CITY OF

CITY OF LOS ANGELES CROSS-COMPLAINANT

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

KELLOGG CAROL D. ESQUIRE

BONHOLTZER ERIC

KELLOGG CAROL DEIRDRE

Defendant and Respondent Attorneys

OGHIGIAN CHRISTINA DEPUTY CITY ATTORNEY

SCHMIDT CHRISTINA PATRIZIA

 

Court Documents

COMPLAINT FOR PERSONAL INJURIES

10/25/2017: COMPLAINT FOR PERSONAL INJURIES

SUMMONS

10/25/2017: SUMMONS

Unknown

12/13/2017: Unknown

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

12/12/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

Unknown

12/12/2017: Unknown

ANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL

12/8/2017: ANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL

PROOF OF SERVICE ON DEFENDANT

11/17/2017: PROOF OF SERVICE ON DEFENDANT

Notice

4/18/2019: Notice

Minute Order

4/10/2019: Minute Order

Notice of Posting of Jury Fees

11/5/2018: Notice of Posting of Jury Fees

Association of Attorney

11/1/2018: Association of Attorney

 

Docket Entries

  • 04/25/2019
  • Docketat 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Continued - Party's Motion

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  • 04/18/2019
  • DocketNotice (NOTICE OF UNAVAILABILITY OF COUNSEL CHRISTINA SCHMIDT); Filed by City of Los Angeles (Cross-Complainant) (Defendant)

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  • 04/10/2019
  • Docketat 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Continued - Party's Motion

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  • 04/10/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 04/10/2019
  • Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by City of Los Angeles (Cross-Complainant) (Defendant)

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  • 11/05/2018
  • DocketNotice of Posting of Jury Fees; Filed by Barbara Baker (Plaintiff)

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  • 11/01/2018
  • DocketAssociation of Attorney; Filed by Carol Deirdre Kellogg (Attorney)

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  • 12/13/2017
  • DocketCIVIL DEPOSIT

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  • 12/13/2017
  • DocketReceipt; Filed by City of Los Angeles (Cross-Complainant) (Defendant)

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  • 12/12/2017
  • DocketCross-Complaint; Filed by City of Los Angeles (Cross-Complainant) (Defendant)

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  • 12/12/2017
  • DocketSummons; Filed by City of Los Angeles (Cross-Complainant) (Defendant)

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  • 12/12/2017
  • DocketSummons on Cross Complaint

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  • 12/12/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 12/08/2017
  • DocketAnswer; Filed by City of Los Angeles (Cross-Complainant) (Defendant)

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  • 12/08/2017
  • DocketANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL

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  • 11/17/2017
  • DocketPROOF OF SERVICE ON DEFENDANT

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  • 11/17/2017
  • DocketProof of Service (not Summons and Complaint); Filed by Barbara Baker (Plaintiff)

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  • 10/25/2017
  • DocketSUMMONS

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  • 10/25/2017
  • DocketComplaint; Filed by Barbara Baker (Plaintiff)

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  • 10/25/2017
  • DocketCOMPLAINT FOR PERSONAL INJURIES

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Tentative Rulings

b'

Case Number: ****1064 Hearing Date: September 30, 2021 Dept: 28

Plaintiff’s Motion for Reconsideration of Order Sustaining Demurrer to FAC

Having reviewed the motion, request for judicial notice, Opposition, and Reply, the Court rules as follows.

BACKGROUND

On October 25, 2017, Plaintiff Barbara Baker filed a Complaint against Defendant City of Los Angeles and DOES 1 – 150, inclusive, alleging 2 causes of action arising from Plaintiff’s foot hitting a raised drain/grate/object, which occurred on December 15, 2015.

On February 25, 2021, Plaintiff amended her Complaint to name DOE 1 as Downtown Los Angeles Property Owners’ Association (“DTLAPOA”).

On June 2, 2021, Plaintiff filed a First Amended Complaint (“FAC”) alleging 2 causes of action arising from the same incident.

On July 7, 2021, Defendant DTLAPOA filed a demurrer.

On August 4, 2021, the Court sustained the demurrer.

On August 16, 2021, Plaintiff filed this instant motion for reconsideration.

On August 27, 2021, Defendant DTLAPOA filed an Opposition.

On September 2, 2021, Plaintiff filed a Reply.

On September 10, 2021, the matter was continued to September 30, 2021, to be heard by the regularly assigned judicial officer.

Trial is set for February 24, 2022.

PARTY’S REQUEST

Plaintiff requests the Court reconsider its order sustaining Defendant DTLAPOA’s demurrer to the First Amended Complaint on the basis that new facts and law warrant a review of the Court’s ruling.

LEGAL STANDARD

On September 10, 2021, Judge Serena R. Murrillo presided over Department 28 matters in Judge Daniel M. Crowley’s absence. Judge Murrillo continued the hearing on this motion from September 10, 2021 to September 30, 2021 so that it would be heard by the regularly assigned judicial officer. The Court’s ruling prepared in anticipation of the rescheduled September 10, 2021 hearing is as follows.

Under California Code of Civil Procedure section 1008, subdivision (a), “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

As stated by the court in Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499, California Code of Civil Procedure section 1008 “is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.”

California Code of Civil Procedure section 128, subdivision (a) states, “Every court shall have the power to do all of the following: . . . (8) To amend and control its process and orders so as to make them conform to law and justice. . . .”

DISCUSSION

On October 25, 2017, Plaintiff filed her Complaint. This initial Complaint named City of Los Angeles and DOES 1 – 150 as defendants and brought one claim of Public Entity Liability under California Government Code section 835 and one claim of Public Employee Liability under California Government Code section 840.2. The Complaint alleged that all DOE defendants were either “municipal entities” of the city/state or employees of the City of Los Angeles.

On February 25, 2021, Plaintiff named Defendant DTLAPOA as DOE 1. On June 2, 2021, Plaintiff filed a First Amended Complaint, now asserting General Negligence and Premises Liability against all Defendants.

Defendant DTLAPOA demurred from the FAC. The Court sustained the demurrer on the basis that the amendment adding Defendant DTLAPOA was improper. When naming a DOE defendant via relation back, the original complaint must have stated a cause of action as to the defendant being added. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) Because Defendant DTLAPOA is not a public (“municipal,” to use the wording of the original Complaint) entity or an employee of the City of Los Angeles, there was no cause of action listed against Defendant DTLAPOA in the initial Complaint. Therefore, relation back amendment was improper. The Court also found that an amended pleading (here, the FAC) must be based on the same set of facts and must be seeking recovery for the same injuries. (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 C2d 596, 600.) Because Plaintiff had alleged new causes of action against new Defendants and alleged new injuries (she stated for the first time that she had fallen and sustained injuries in the FAC), the Court found that the causes of action stated in the FAC were improper. The Court found that whether or not Defendant DTLAPOA was aware of Plaintiff’s potential causes of action after her injury was immaterial – without meeting the essential elements for relation back to be allowed, the amendment remained improper. The Court sustained the demurrer without leave to amend.

Plaintiff now brings a motion for reconsideration under Code of Civil Procedure section 1008. In order for a motion for reconsideration to be granted, the moving party must show that there are new or different facts, circumstances, or law, that would warrant the Court modifying or amending its ruling. (Code of Civil Procedure section 1008(a).)

Plaintiff contends that the Court should reconsider its determination that Defendant DTLAPOA is not a municipal entity, which was the basis for barring the amendment that brought DTLAPOA into the action. Plaintiff contends that a municipal entity can be a private entity, non-profit, organization, or plan. Plaintiff cites to U.S.C. section 78(0)-(4)(e)(8), which states that a municipal entity may refer to: “any State, political subdivision of a State, or municipal corporate instrumentality of a State, including— (A) any agency, authority, or instrumentality of the State, political subdivision, or municipal corporate instrumentality; (B) any plan, program, or pool of assets sponsored or established by the State, political subdivision, or municipal corporate instrumentality or any agency, authority, or instrumentality thereof; and (C) any other issuer of municipal securities.”

Plaintiff asserts that DTLAPOA’s discovery responses revealed that it had an agreement with City of Los Angeles to fund/levy, manage, maintain, and secure the Fashion District. (Ex. C – “Agreement to Administer the Property Based Business Improvement District (Agreement No. C-123228.) Plaintiff argues that this agreement, by imposing specific rights, obligations, and benefits on DTLAPOA, substantially resembles the definition of a “municipal entity.”

Plaintiff contends that the Court did not consider the argument during the oral argument on the demurrer, making it a new ground for reconsideration. Plaintiff also contends that the discovery responses provided by Defendant DTLAPOA were not considered by the Court in its ruling but reveal the relationship with the City of Los Angeles.

Plaintiff’s argument neglects to use the definitions employed by the State of California. Plaintiff contends that there is no authority in California defining a “municipal entity.” While that is technically correct, that is only because the original Complaint used the phrase “municipal entity” in place of “public entity” when bringing the Public Entity Liability action. “Municipal Entity” was a creation of Plaintiff’s Complaint, not of the Court. Perhaps the Court erred in not pointing out that it was using the term in the same way as Plaintiff had as it ruled on the amendments to that Complaint. In any case, in order for the initial Complaint to have brought a cause of action for Public Entity Liability against Defendant DTLAPOA, Defendant DTLAPOA would have needed to be a public entity, as provided by Government Code section 811.2. In California, a public entity” includes the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State. (Government Code section 811.2.) Defendant DTLAPOA is not a county, city, district, public authority, or political subdivision of the state. Defendant DTLAPOA is also not a public corporation. Public corporation” means any county, city and county, city, town, municipal corporation, district of any kind or class, authority, redevelopment agency or political subdivision of this state. (Government Code section 67510.) “Municipal corporation” means a city and county or incorporated city. (Public Utility Code section 2901.) A redevelopment agency was a semi-public entity engaged with the state of California in urban renewal. The state terminated its last remaining redevelopment agencies in 2011. Under the appropriate definitions that Plaintiff fails to use, there is still no legitimate cause of action against Defendant DTLAPOA that would allow for an amendment to the Complaint to include DTLAPOA.

As Defendant points out, even if the inapplicable federal laws were liberally construed here to fit DTLAPOA, those laws existed at the time Plaintiff drafted their Opposition to the demurrer. The discovery responses also existed at the time the demurrer was brought, opposed, and replied to, as well as the hearing. They are not new; rather Plaintiff failed to bring them before and wants them considered now. Plaintiff must provide a satisfactory explanation for the failure to make the showing at or before the time the challenged order was issued. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) That the Court did not entertain oral argument on whether a non-controlling federal definition applies to a state public liability action is not a sufficient basis for reconsidering the order.

The facts in the discovery responses are also not “new” for the purposes of reconsideration. Plaintiff contends that the Court did not review Defendant DTLAPOA’s responses to discovery requests. This is incorrect. As the Court noted in its order, the Court reviewed the declaration that was submitted in opposition to the demurrer. That declaration, submitted by Plaintiff’s counsel, had the discovery responses attached. These facts were already reviewed by the Court and the Court did not find a basis for determining that Defendant DTLAPOA was a public entity even in light of the responses. As these responses are not “new” evidence, they are also not a basis for reconsideration.

In summary, Plaintiff has failed to provide a proper ground for reconsideration. Moreover, even if the Court reconsidered the argument, there is no basis for finding that a cause of action was stated against Defendant DTLAPOA.

For both those reasons, the motion is DENIED.

CONCLUSION

Plaintiff’s Motion for Reconsideration of Order Sustaining Demurrer to FAC is DENIED.

Plaintiff is ordered to give notice.

The parties are directed to the header of this tentative ruling for further instructions.

'


b'

Case Number: ****1064 Hearing Date: September 10, 2021 Dept: 28

Plaintiff’s Motion for Reconsideration of Order Sustaining Demurrer to FAC

Having reviewed the motion, request for judicial notice, Opposition, and Reply, the Court rules as follows.

BACKGROUND

On October 25, 2017, Plaintiff Barbara Baker filed a Complaint against Defendant City of Los Angeles and DOES 1 – 150, inclusive, alleging 2 causes of action arising from Plaintiff’s foot hitting a raised drain/grate/object, which occurred on December 15, 2015.

On February 25, 2021, Plaintiff amended her Complaint to name DOE 1 as Downtown Los Angeles Property Owners’ Association (“DTLAPOA”).

On June 2, 2021, Plaintiff filed a First Amended Complaint (“FAC”) alleging 2 causes of action arising from the same incident.

On July 7, 2021, Defendant DTLAPOA filed a demurrer.

On August 4, 2021, the Court sustained the demurrer.

On August 16, 2021, Plaintiff filed this instant motion for reconsideration.

On August 27, 2021, Defendant DTLAPOA filed an Opposition.

On September 2, 2021, Plaintiff filed a Reply.

Trial is set for

PARTY’S REQUEST

Plaintiff requests the Court reconsider its order sustaining Defendant DTLAPOA’s demurrer to the First Amended Complaint on the basis that new facts and law warrant a review of the Court’s ruling.

LEGAL STANDARD

Under California Code of Civil Procedure section 1008, subdivision (a), “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

As stated by the court in Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499, California Code of Civil Procedure section 1008 “is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.”

California Code of Civil Procedure section 128, subdivision (a) states, “Every court shall have the power to do all of the following: . . . (8) To amend and control its process and orders so as to make them conform to law and justice. . . .”

DISCUSSION

On October 25, 2017, Plaintiff filed her Complaint. This initial Complaint named City of Los Angeles and DOES 1 – 150 as defendants and brought one claim of Public Entity Liability under California Government Code section 835 and one claim of Public Employee Liability under California Government Code section 840.2. The Complaint alleged that all DOE defendants were either “municipal entities” of the city/state or employees of the City of Los Angeles.

On February 25, 2021, Plaintiff named Defendant DTLAPOA as DOE 1. On June 2, 2021, Plaintiff filed a First Amended Complaint, now asserting General Negligence and Premises Liability against all Defendants.

Defendant DTLAPOA demurred from the FAC. The Court sustained the demurrer on the basis that the amendment adding Defendant DTLAPOA was improper. When naming a DOE defendant via relation back, the original complaint must have stated a cause of action as to the defendant being added. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) Because Defendant DTLAPOA is not a public (“municipal,” to use the wording of the original Complaint) entity or an employee of the City of Los Angeles, there was no cause of action listed against Defendant DTLAPOA in the initial Complaint. Therefore, relation back amendment was improper. The Court also found that an amended pleading (here, the FAC) must be based on the same set of facts and must be seeking recovery for the same injuries. (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 C2d 596, 600.) Because Plaintiff had alleged new causes of action against new Defendants and alleged new injuries (she stated for the first time that she had fallen and sustained injuries in the FAC), the Court found that the causes of action stated in the FAC were improper. The Court found that whether or not Defendant DTLAPOA was aware of Plaintiff’s potential causes of action after her injury was immaterial – without meeting the essential elements for relation back to be allowed, the amendment remained improper. The Court sustained the demurrer without leave to amend.

Plaintiff now brings a motion for reconsideration under Code of Civil Procedure section 1008. In order for a motion for reconsideration to be granted, the moving party must show that there are new or different facts, circumstances, or law, that would warrant the Court modifying or amending its ruling. (Code of Civil Procedure section 1008(a).)

Plaintiff contends that the Court should reconsider its determination that Defendant DTLAPOA is not a municipal entity, which was the basis for barring the amendment that brought DTLAPOA into the action. Plaintiff contends that a municipal entity can be a private entity, non-profit, organization, or plan. Plaintiff cites to U.S.C. section 78(0)-(4)(e)(8), which states that a municipal entity may refer to: “any State, political subdivision of a State, or municipal corporate instrumentality of a State, including— (A) any agency, authority, or instrumentality of the State, political subdivision, or municipal corporate instrumentality; (B) any plan, program, or pool of assets sponsored or established by the State, political subdivision, or municipal corporate instrumentality or any agency, authority, or instrumentality thereof; and (C) any other issuer of municipal securities.”

Plaintiff asserts that DTLAPOA’s discovery responses revealed that it had an agreement with City of Los Angeles to fund/levy, manage, maintain, and secure the Fashion District. (Ex. C – “Agreement to Administer the Property Based Business Improvement District (Agreement No. C-123228.) Plaintiff argues that this agreement, by imposing specific rights, obligations, and benefits on DTLAPOA, substantially resembles the definition of a “municipal entity.”

Plaintiff contends that the Court did not consider the argument during the oral argument on the demurrer, making it a new ground for reconsideration. Plaintiff also contends that the discovery responses provided by Defendant DTLAPOA were not considered by the Court in its ruling but reveal the relationship with the City of Los Angeles.

Plaintiff’s argument neglects to use the definitions employed by the State of California. Plaintiff contends that there is no authority in California defining a “municipal entity.” While that is technically correct, that is only because the original Complaint used the phrase “municipal entity” in place of “public entity” when bringing the Public Entity Liability action. “Municipal Entity” was a creation of Plaintiff’s Complaint, not of the Court. Perhaps the Court erred in not pointing out that it was using the term in the same way as Plaintiff had as it ruled on the amendments to that Complaint. In any case, in order for the initial Complaint to have brought a cause of action for Public Entity Liability against Defendant DTLAPOA, Defendant DTLAPOA would have needed to be a public entity, as provided by Government Code section 811.2. In California, a public entity” includes the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State. (Government Code section 811.2.) Defendant DTLAPOA is not a county, city, district, public authority, or political subdivision of the state. Defendant DTLAPOA is also not a public corporation. Public corporation” means any county, city and county, city, town, municipal corporation, district of any kind or class, authority, redevelopment agency or political subdivision of this state. (Government Code section 67510.) “Municipal corporation” means a city and county or incorporated city. (Public Utility Code section 2901.) A redevelopment agency was a semi-public entity engaged with the state of California in urban renewal. The state terminated its last remaining redevelopment agencies in 2011. Under the appropriate definitions that Plaintiff fails to use, there is still no legitimate cause of action against Defendant DTLAPOA that would allow for an amendment to the Complaint to include DTLAPOA.

As Defendant points out, even if the inapplicable federal laws were liberally construed here to fit DTLAPOA, those laws existed at the time Plaintiff drafted their Opposition to the demurrer. The discovery responses also existed at the time the demurrer was brought, opposed, and replied to, as well as the hearing. They are not new; rather Plaintiff failed to bring them before, and wants them considered now. Plaintiff must provide a satisfactory explanation for the failure to make the showing at or before the time the challenged order was issued. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) That the Court did not entertain oral argument on whether a non-controlling federal definition applies to a state public liability action is not a sufficient basis for reconsidering the order.

The facts in the discovery responses are also not “new” for the purposes of reconsideration. Plaintiff contends that the Court did not review Defendant DTLAPOA’s responses to discovery requests. This is incorrect. As the Court noted in its order, the Court reviewed the declaration that was submitted in opposition to the demurrer. That declaration, submitted by Plaintiff’s counsel, had the discovery responses attached. These facts were already reviewed by the Court and the Court did not find a basis for determining that Defendant DTLAPOA was a public entity even in light of the responses. As these responses are not “new” evidence, they are also not a basis for reconsideration.

In summary, Plaintiff has failed to provide a proper ground for reconsideration. Moreover, even if the Court reconsidered the argument, there is no basis for finding that a cause of action was stated against Defendant DTLAPOA.

For both those reasons, the motion is DENIED.

CONCLUSION

Plaintiff’s Motion for Reconsideration of Order Sustaining Demurrer to FAC is DENIED.

Plaintiff is ordered to give notice.

The parties are directed to the header of this tentative ruling for further instructions.

'


b'

Case Number: ****1064 Hearing Date: August 4, 2021 Dept: 28

Demurrer

Having reviewed the motion, Opposition, declaration, and Reply, the Court rules as follows.

BACKGROUND

On October 25, 2017, Plaintiff Barbara Baker filed a Complaint against Defendant City of Los Angeles and DOES 1 – 150, inclusive, alleging 2 causes of action arising from Plaintiff’s foot hitting a raised drain/grate/object, which occurred on December 15, 2015.

On February 25, 2021, Plaintiff amended her Complaint to name DOE 1 as Downtown Los Angeles Property Owners’ Association (“DTLAPOA”).

On June 2, 2021, Plaintiff filed a First Amended Complaint (“FAC”) alleging 2 causes of action arising from the same incident.

On July 7, 2021, Defendant DTLAPOA filed this instant demurrer.

On July 22, 2021, Plaintiff filed an Opposition.

On July 28, 2021, Defendant DTLAPOA filed a Reply.

Trial is set for February 24, 2021.

PARTY’S REQUEST

Defendant DTLAPOA demurrers from the entire FAC on the basis that the FAC does not state sufficient facts to constitute any cause of action against Defendant DTLAPOA, and additionally contends that the FAC is uncertain.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to, in person or telephonically, 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. (Code Civ. Proc., ; 430.41.)

Demurrer

Code of Civil Procedure section 430.10 provides, in relevant part:

The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (h) No certificate was filed as required by Section 411.35.

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.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

DISCUSSION

The Court first notes that the parties did properly attempt to meet and confer but were unable to resolve the issues.

Defendant DTLAPOA argues that Plaintiff’s claim is time-barred by the statute of limitations. Plaintiff named DOE defendants in the initial Complaint on October 25, 2017 but didn’t substitute Defendant DTLAPOA into the action via amendment until February 25, 2021. Plaintiff thereafter filed an FAC and changed both causes of action originally asserted. Defendant DTLAPOA contends that one of two scenarios exist here, both of which bar Plaintiff’s claim:

  1. Defendant DTLAPOA is a newly named Defendant against whom Premises Liability and Negligence are being alleged, where the statute of limitations would bar the claim in its entirety; OR

  2. Defendant DTLAPOA is being brought into the matter via amendment that relates back to the initial Complaint. (Plaintiff contends this is the case; Defendant DTLAPOA argues that the amendment would be barred.)

The first scenario requires no analysis from the Court. If Defendant is newly named, the cause of action is time-barred. The Court as such turns to the second scenario (which Plaintiff claims is applicable) where Defendant DTLAPOA was named via amendment to the initial Complaint. Defendant contends this second scenario also does not apply, as amendment would be prohibited here. Defendant DTLAPOA notes that in the initial Complaint, Plaintiff did not state a cause of action as to DTLAPOA; rather, Plaintiff alleged that all Defendants were distinct and separate municipal entities that had violated Gov Code section 835 and were liable for Public Entity Liability and Public Employee Liability. In the FAC, Plaintiff dropped these initial causes of action and asserted Premises Liability and General Negligence for the first time instead. Plaintiff contends this amendment is proper because it relates back to the original facts setting out the causes of action in the initial Complaint.

CCP section 474, which governs amending pleadings to add a Defendant or cause of action, allows relation back if the Plaintiff is genuinely ignorant of a Defendant’s identity at the time of filing of the original Complaint, but later learns of the identity and properly names the Defendant. Defendant cites to Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176, which states that a cause of action must be stated in the initial Complaint as to the Defendant being named via relation-back. Here, because Defendant is not a government entity against whom Plaintiff’s initial causes of action of Public Entity Liability and Public Employee Liability could apply, Defendant contends that a proper cause of action was never stated as to Defendant DTLAPOA in the initial pleading and relation-back would therefore be improper.

Defendant DTLAPOA also cites to Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 C2d 596, 600, wherein the Court held that an amended Complaint must be based on “the same general set of facts” and Plaintiff must be seeking recovery “for the same injuries.” Defendant DTLAPOA notes that Plaintiff has substantively changed the facts and the injury from the initial Complaint. Originally, Plaintiff claimed her foot made contact with a raised drain/grate/object and brought Public Entity Liability and Public Employee Liability actions under the Government Code. As noted, only in the FAC did Plaintiff drop these causes of action entirely and newly assert Premise Liability and General Negligence. Additionally, it was only in the FAC that Plaintiff first stated that she fell and sustained injuries as a result of the condition. Defendant therefore argues that Plaintiff’s FAC does not arise from the same general set of facts and therefore does not properly relate back.

Plaintiff in Opposition does acknowledge that an amendment must relate back to the same general set of facts from the initial pleading but does not respond to Defendant’s argument that the facts underlying the FAC are demonstrably different from the facts underlying the initial Complaint, or to Defendant’s argument that an amendment naming DTLAPOA as a DOE was improper because Plaintiff failed to bring a valid cause of action against Defendant in the initial pleading. Plaintiff instead argues that Defendant DTLAPOA failed to meet its burden of showing Plaintiff was not genuinely unaware of Defendant DTLAPOA’s identity. The Court finds that this argument misses the core of Defendant DTLAPOA’s argument; even if Plaintiff genuinely did not know of Defendant DTLAPOA’s identity, the amendment would be improper if there was not a valid cause of action asserted against Defendant DTLAPOA in the initial Complaint.

Plaintiff additionally contends that Defendant DTLAPOA was aware of Plaintiff’s claims since 2016. The Court notes that Defendant DTLAPOA having knowledge of the claims previously asserted by Plaintiff would have no bearing on the case if no valid cause of action in the initial Complaint could be brought against Defendant DTLAPOA and if the FAC asserted causes of action not arising from the same general set of facts.

Here, the Court finds that there was no valid cause of action brought against Defendant in the initial Complaint, rendering the amendment naming Defendant DTLAPOA improper. The Court also finds that even if the amendment naming Defendant DTLAPOA as DOE 1 was proper, the causes of action, facts, and injuries alleged have been substantively altered in the FAC to the point that the new causes of action alleged against does not properly relate back to the conduct initially alleged in the initial Complaint.

Therefore, the Court will SUSTAIN the demurrer. The amendment naming Defendant DTLAPOA is improper. The FAC is also improper as it does not arise from the same general set of facts. The Court cannot grant leave to amend, as Plaintiff cannot properly bring Defendant DTLAPOA into the action.

CONCLUSION

Defendant DTLAPOA’s Demurrer is SUSTAINED without leave to amend.

Defendant is ordered to give notice.

The parties are directed to the header of this tentative ruling for further instructions.

'


Case Number: ****1064    Hearing Date: January 13, 2020    Dept: 4A

Motion to be Relieved as Counsel

Having considered the moving papers, the Court rules as follows. opposing papers have been filed.

BACKGROUND

On October 25, 2017, Plaintiff Barbara Baker (“Plaintiff”) filed a complaint against Defendant City of Los Angeles alleging violations of various Government Code sections for a trip-and-fall that occurred on December 15, 2015.

On December 12, 2017, Defendant/Cross-Complainant City of Los Angeles filed a cross-complaint against Roes 1 through 50 seeking indemnification, apportionment, and declaratory relief.

On November 27, 2019, Plaintiffs counsel, Carol D. Kellogg and Eric Bonholtzer, filed a motion to be relieved as counsel pursuant to California Code of Civil Procedure section 284, subdivision (2).

Trial is set for April 21, 2020.

PARTYS REQUEST

Plaintiffs counsel, Carol D. Kellogg and Eric Bonholtzer, seeks to be relieved as counsel due because an irreconcilable breakdown of the attorney-client relationship has arisen.

LEGAL STANDARD

California Rule of Court rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284, subdivision (2) is brought instead of filing a consent under Code of Civil Procedure section 284, subdivision (1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

DISCUSSION

Plaintiff’s counsel completed forms MC-051, MC-052, and MC-053.  Plaintiff’s counsel served these documents on Plaintiff and Defendant/Cross-Complainant City of Los Angeles by U.S. mail on December 2, 2019.  Plaintiff’s counsel declares an irreconcilable breakdown of the attorney-client relationship has arisen.

The Court finds the motion is properly granted.  Trial is over three months awayPlaintiff has enough time to retain substitute counsel and for that counsel to prepare for trial.  There is no evidence that granting the motion would prejudice Plaintiff or disrupt the orderly process of justice.

The motion is GRANTED.

Carol D. Kellogg and Eric Bonholtzer are relieved as counsel for Plaintiff effective upon the filing of the proof of service of Order Granting Attorney’s Motion to be Relieved as Counsel–Civil form MC–053.

Carol D. Kellogg and Eric Bonholtzer are ordered to give notice of this ruling.



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