This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 12:44:31 (UTC).

DARRYL TURMAN VS EDISON ELECTRIC COMPANY

Case Summary

On 03/27/2017 DARRYL TURMAN filed a Contract - Other Contract lawsuit against EDISON ELECTRIC COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MONICA BACHNER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5422

  • Filing Date:

    03/27/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MONICA BACHNER

 

Party Details

Plaintiff

TURMAN DARRYL

Defendant

EDISON ELECTRIC COMPANY

 

Court Documents

STATEMENT OF DAMAGES

12/14/2017: STATEMENT OF DAMAGES

REQUEST FOR ENTRY OF DEFAULT

12/14/2017: REQUEST FOR ENTRY OF DEFAULT

Proof of Service

1/5/2018: Proof of Service

NOTICE OF INTENT TO APPEAR BY TELEPHONE

1/5/2018: NOTICE OF INTENT TO APPEAR BY TELEPHONE

REQUEST FOR ENTRY OF DEFAULT

1/8/2018: REQUEST FOR ENTRY OF DEFAULT

Unknown

1/8/2018: Unknown

PROOF OF SERVICE OF SUMMONS

1/8/2018: PROOF OF SERVICE OF SUMMONS

STATEMENT OF DAMAGES (PERSONAL INJURY OR WRONGFUL DEATH)

1/8/2018: STATEMENT OF DAMAGES (PERSONAL INJURY OR WRONGFUL DEATH)

NOTICE TO DEFENDANT OF HEARING ON MOTION FOR DEFAULT JUDGMENT AND ORDER TO SHOW CAUSE

1/8/2018: NOTICE TO DEFENDANT OF HEARING ON MOTION FOR DEFAULT JUDGMENT AND ORDER TO SHOW CAUSE

Minute Order

1/29/2018: Minute Order

STATEMENT OF DAMAGES (PERSONAL INJURY OR WRONGFUL DEATH)

2/28/2018: STATEMENT OF DAMAGES (PERSONAL INJURY OR WRONGFUL DEATH)

NOTICE OF INTENT TO APPEAR BY TELEPHONE

2/28/2018: NOTICE OF INTENT TO APPEAR BY TELEPHONE

NOTICE TO DEFENDANT OF HEARING ON MOTION FOR DEFAULT JUDGMENT AND ORDER TO SHOW CAUSE

2/28/2018: NOTICE TO DEFENDANT OF HEARING ON MOTION FOR DEFAULT JUDGMENT AND ORDER TO SHOW CAUSE

REQUEST FOR ENTRY OF DEFAULT

2/28/2018: REQUEST FOR ENTRY OF DEFAULT

Minute Order

3/21/2018: Minute Order

MOTION FOR SANCTIONS AND ORDER TO SERVE DEFENDANT BY PUBLICATION

4/17/2018: MOTION FOR SANCTIONS AND ORDER TO SERVE DEFENDANT BY PUBLICATION

NOTICE OF MOTION, MOTION FOR SANCTIONS, ORDER TO SERVE DEFENDANT BY PUBLICATION

4/17/2018: NOTICE OF MOTION, MOTION FOR SANCTIONS, ORDER TO SERVE DEFENDANT BY PUBLICATION

NOTICE OF INTENT TO APPEAR BY TELEPHONE

4/20/2018: NOTICE OF INTENT TO APPEAR BY TELEPHONE

71 More Documents Available

 

Docket Entries

  • 06/05/2019
  • Docketat 08:30 AM in Department 71, Monica Bachner, Presiding; Case Management Conference - Held - Continued

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  • 06/05/2019
  • Docketat 08:30 AM in Department 71, Monica Bachner, Presiding; Order to Show Cause Re: (Failure to File Request Ent of Def) - Held - Continued

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  • 06/05/2019
  • DocketMinute Order ( (ORDER TO SHOW CAUSE RE: FAILURE TO REQUEST ENTRY OF DEFAULT ...)); Filed by Clerk

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  • 06/05/2019
  • DocketCertificate of Mailing for (Minute Order (ORDER TO SHOW CAUSE RE: FAILURE TO REQUEST ENTRY OF DEFAULT ...) of 06/05/2019); Filed by Clerk

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  • 05/22/2019
  • DocketProof of Service by Mail; Filed by Darryl Turman (Plaintiff)

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  • 05/17/2019
  • DocketProof of Service by Mail; Filed by Darryl Turman (Plaintiff)

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  • 05/17/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Darryl Turman (Plaintiff)

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  • 05/17/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Darryl Turman (Plaintiff)

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  • 05/17/2019
  • DocketNotice of Hearing (Menacing Dog) (for Default Judgment sand Order to Show Cause, Case Management Conference); Filed by Darryl Turman (Plaintiff)

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  • 05/15/2019
  • Docketat 08:30 AM in Department 71, Monica Bachner, Presiding; Hearing - Other (for Sanctions and Order to serve defendants by publication) - Held - Motion Granted

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135 More Docket Entries
  • 05/26/2017
  • DocketMinute Order

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  • 05/26/2017
  • DocketMinute order entered: 2017-05-26 00:00:00; Filed by Clerk

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  • 04/07/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/07/2017
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 04/07/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/07/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 03/29/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 03/29/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 03/27/2017
  • DocketComplaint; Filed by Darryl Turman (Plaintiff)

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  • 03/27/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: ****5422 Hearing Date: January 28, 2022 Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

DARRYL TURMAN,

vs.

EDISON ELECTRIC COMPANY, et al.

Case No.: ****5422

Hearing Date: January 28, 2022

Defendant Southern California Edison Company’s demurrer to the third amended complaint is sustained without leave to amend.

Defendant’s motion to strike is moot.

  1. Demurrer

    Defendant Southern California Edison Company, erroneously sued as Edison Electric Company (“Defendant”), demurs to the 1st (breach of oral contract), 2nd (promissory estoppel), 3rd (negligence), and 4th (res ipsa loquitur) causes of action in the third amended complaint (“TAC”) filed by Plaintiff Darryl Turman (“Plaintiff”). Defendant argues Plaintiff failed to allege sufficient facts to constitute the causes of action and the causes of action are uncertain. (Notice of Demurrer pgs. 2-3.)

    The Court notes Defendant’s demurrer refers to a concurrently filed request for judicial notice; however, no request has been filed. (Notice of Demurrer, pg. 3.)

    Background

    As a self-represented litigant, Plaintiff filed his initial complaint in this action on March 27, 2017. On January 22, 2020, Plaintiff filed an Amendment to Complaint (Fictitious/Incorrect Name) to correct Defendant’s name. On February 21, 2020, Plaintiff filed his first amended complaint (“FAC”) in which he alleged a single cause of action for breach of oral/binding implied contract. (FAC pgs. 3-4.) On February 23, 2021, the Court sustained Defendants’ demurrer to the FAC with 60 days leave to amend. On April 14, 2021, Plaintiff filed his second amended complaint (“SAC”) which is incorrectly captioned “Opposition to [Defendant’s] Demurrer to the [FAC] with Leave to an Amended Complaint.” The Court notes that while the SAC is not properly formatted as a pleading complaint, it appears to include the same allegations as the handwritten portion attached to Plaintiff’s FAC. On August 30, 2021, the Court sustained Defendant’s demurrer to the SAC with leave to amend. Plaintiff filed the operative TAC on September 17, 2021. Defendant filed the instant demurrer and accompanying motion to strike on October 19, 2021. On December 22, 2021, Plaintiff filed a Substitution of Attorney indicating Darren M. Richie (“Richie”) had substituted in as counsel for Plaintiff, who had been self-represented until such substitution. At the January 19, 2022 Post Mediation Status Conference, Erika Lipcsey appeared on behalf of Richie on behalf of Plaintiff. At the hearing, the Court acknowledged the instant demurrer remained on calendar, and the parties waived notice. As of the date of the hearing on the demurrer, Plaintiff has not filed an opposition.

    Allegations of TAC

    Plaintiff alleges that on October 4, 2013, he was seriously injured after stepping into a broken utility box owned and operated by Defendant, which caused him to fall backwards, during which his neck snapped backwards, his head hit the concrete, and his ankle was twisted (the “Incident”). (TAC 7-9.) Plaintiff sought medical attention at the Antelope Valley Urgent Care on October 5, 2013, and to this day to address pains and medical issues that have arisen from his fall. (TAC 10.) Plaintiff filed a personal injury claim with Defendant’s claim department, was assigned claim number 201500279, and was assigned Scott Hayashi (“Hayashi”) as a claim representative. (TAC 11.) In March 2015, Plaintiff and Hayashi met at the location of the Incident during which meeting: (1) Plaintiff noticed the defective utility box cover had been repaired, which Plaintiff informed Hayashi; (2) Hayashi acknowledged the cement box had been changed; (3) Hayashi asked if Plaintiff intended to pursue legal action and informed Plaintiff such action would not be necessary since Defendant would settle; (4) Plaintiff informed Hayashi that he had suffered monetary damages in the amount of $30,000 from medical bills and out of pocket expenses resulting from the Incident; (5) Hayashi agreed to Plaintiff’s valuation and promised payment of this amount and subsequent expenses incurred in exchange for Plaintiff to forego pursuing litigation. (TAC 12.)

    Plaintiff alleges he continued to follow up with Hayashi regarding the $30,000 payment, but Hayashi failed to respond. (TAC 13.) After being unable to reach Hayashi to obtain payment of the promised-amount, Plaintiff decided to pursue legal action; however, upon filing his initial complaint, Plaintiff discovered the statute of limitations had passed. (TAC 13.) Plaintiff alleges he believed the promises made by Hayashi on behalf of Defendant, and relied on them in holding off on pursuing legal action, which resulted in the promise not being effectuated and Plaintiff suffering even more extensive damages given the expired statute of limitations. (TAC 13.)

    The allegations of the TAC are not substantively different from those in the FAC or SAC, with a few exceptions. First, the TAC no longer includes the SAC’s allegation relating to Plaintiff’s alleged acceptance of an offer. (See FAC, Attachment; SAC, pgs. 2-4.) In addition, Plaintiff now alleges Hayashi informed Plaintiff he would not need to pursue legal action, whereas Plaintiff previously alleged Hayashi informed him he would not need to obtain legal representation. Moreover, like the FAC and SAC, the TAC omits and alters allegations from the complaint relating to the promises made by Hayashi in March 2015. Specifically, Plaintiff previously alleged Hayashi only asked how much Plaintiff’s out-of-pocket expenses were, that they discussed an incentive payment, that they discussed additional payment if additional surgery was needed, that Hayashi agreed to discuss payment options with Defendant, and that Hayashi said he would get back as soon as possible with an answer for a settlement. (Complaint, Attachment, pg. 4.)

    Breach of Oral/Binding Implied Contract (1st COA)

    “The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. [Citation.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

    Plaintiff’s breach of contract cause of action is based on allegations that Hayashi, on behalf of Defendant, entered into an oral contract with Plaintiff pursuant to which Defendant promised to pay Plaintiff’s incurred medical expenses in the amount of $30,000 in exchange for Plaintiff’s promise to not pursue litigation. (TAC 16.) Plaintiff alleges he performed his obligations by not pursuing litigation; however, Defendant failed to pay the promised $30,000, damaging Plaintiff both in the amount suffered and in resulting in the expiration of the applicable statute of limitations. (TAC 17-20.)

    Plaintiff failed to allege facts suggesting the existence of a contract between him and Defendant. Plaintiff only alleges that Defendant’s representative Hayashi told Plaintiff that Defendant would compensate him for his medical expenses. Here again, Plaintiff’s conclusory allegation Hayashi agreed Defendant would pay Plaintiff’s medical bills contradicts his previous judicial admissions and was insufficient to allege the existence of a contract. (See 2/23/21 Ruling, pg. 3 [citing Demurrer, pgs. 1, 3, 5, citing Del E. Webb Corp. v. Structural Materials Co. (1981), 123 Cal.App.3d 593].) Plaintiff’s TAC fails to cure the fact that Plaintiff’s admissions in other documents in the instant case file confirm Plaintiff’s original allegations; namely, that Hayashi only agreed that he would check with his superior Paul Penolten regarding a possible payment to Plaintiff, and not that Hayashi agreed Plaintiff would be paid for his medical expenses. Plaintiff’s amended allegation that Hayashi instead promised Plaintiff Defendant would fully pay Plaintiff’s medical expenses conflicts with his judicial admissions and is subject to demurrer.

    Plaintiff bears the burden of proving there is a reasonable possibility of amendment. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff failed to file an opposition to address how the defects in the pleading can be cured via amendment.

    Based on the foregoing, Defendant’s demurrer to the 1st cause of action is sustained without leave to amend.

    Promissory Estoppel (2nd COA)

    “The elements of the doctrine of promissory estoppel, as described concisely in section 90 of the Restatement of Contracts, are as follows: ‘A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.’” (C&K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 6; see also Thomson v. Internat. Alliance of Stage Employees (1965) 232 Cal.App.2d 446, 454 [“The required elements for promissory estoppel in California are ... (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.”].) “The purpose of [the doctrine of promissory estoppel] is to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange. If the promisee’s performance was requested at the time the promisor made his promise and that performance was bargained for, the doctrine is inapplicable.” (Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 249.) “The doctrine of promissory estoppel is inapplicable where the promisee’s performance was requested by the promisor at the time the promise was made.” (Healy v. Brewster (1963) 59 Cal.2d 455, 463.)

    Plaintiff’s promissory estoppel cause of action is based on the same underlying allegations as Plaintiff’s breach of oral contract cause of action. Specifically, Plaintiff alleges Defendant promised to pay Plaintiff $30,000 for accrued medical bills resulting from the fall in exchange for not pursuant legal action, that Plaintiff relied on this promise as it was made by Defendant’s claim handler Hayashi who was speaking on Defendant’s behalf and in the scope of his employment, it was foreseeable Plaintiff, in performing his end of the bargain would forego litigation which would result in the statute of limitations expiring, and as a result of Plaintiff’s reliance on Defendant’s promise, Plaintiff was damaged in not receiving $30,000 and missing the statute of limitations. (TAC 23-27.)

    Plaintiff failed to allege sufficient facts to support the cause of action for promissory estoppel. Notably, as with the breach of contract cause of action, the cause of action remains based on allegations that contradict Plaintiff’s prior pleadings. In addition, the cause of action has been added to the operative pleading without Plaintiff obtaining the Court’s leave to add an additional cause of action.

    Plaintiff did not meet his burden of establishing the defect in the pleading can be cured via amendment.

    Based on the foregoing, Defendant’s demurrer is sustained without leave to amend.

    Negligence (3rd COA)

    The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

    Plaintiff’s negligence cause of action is based on allegations that Defendant negligently failed to fix a broken cement block on one of its utility boxes resulting in Plaintiff stepping thereon, falling backwards, and suffering injuries. (TAC 29.) Plaintiff alleges that since the utility box was on a public street, Defendant owed a general duty of reasonable care to all pedestrians, including Plaintiff, including reasonable maintenance of the utility box and Defendant breached this duty in failing to fix the broken cement block, causing the Incident. (TAC 30-31.)

    Plaintiff failed to allege sufficient facts to constitute a cause of action for negligence against Defendant. On the face of the pleading and Plaintiff’s judicial admissions, the cause of action is barred by the applicable statute of limitations, and Plaintiff alleges no theory for tolling the statute. Moreover, Plaintiff has added this cause of action to the pleading without the Court’s leave. As Plaintiff has failed to file an opposition, he has not met his burden of showing the defects in the pleading can be cured via amendment.

    Based on the foregoing, Defendant’s demurrer to the 3rd cause of action is sustained without leave to amend.

    Negligence – Res Ipsa Loquitur (4th COA)

    Res ipsa loquitur is not a cause of action. Rather, it is a presumption affecting the burden of producing evidence. (Evid. Code 646, 604.) The doctrine is applied to permit the jury to infer a defendant’s negligence from the fact of a defect under appropriate circumstances. (Romig v. Goodyear Tire & Rubber Co. (1969) 271 Cal.App.2d 420, 422.) It is based on a theory of “probability” where there is no direct evidence of defendant’s conduct, permitting a common sense inference of negligence from the happening of the accident. (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75.) The applicability of the doctrine depends on whether it can be said the accident was probably the result of negligence by someone and defendant was probably the person who was responsible. (Ibid.) (See CACI 417.)

    Plaintiff’s res ipsa loquitur cause of action is based on essentially the same underlying allegations as Plaintiff’s negligence cause of action; namely, that the Incident had to have been the result of Defendant’s negligence in maintaining the utility box given the utility box was in the exclusive control of Defendant. (TAC 37-39.)

    Plaintiff cannot allege facts to sustain a cause of action for res ipsa loquitur as it is not a valid cause of action. In addition, Plaintiff has not filed an opposition to address whether this defect in the pleading can be cured via amendment.

    Based on the foregoing, Defendant’s demurrer to the 4th cause of action is sustained without leave to amend.

  2. Motion to Strike

    In light of the Court’s ruling on the demurrer, Defendant’s motion to strike is moot.

    Dated: January , 2022

    Hon. Monica Bachner

    Judge of the Superior Court



b'

Case Number: ****5422 Hearing Date: August 30, 2021 Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

DARRYL TURMAN,

vs.

EDISON ELECTRIC COMPANY, et al.

Case No.: ****5422

Hearing Date: August 30, 2021

Defendant Southern California Edison Company’s demurrer to the second amended complaint is sustained without leave to amend.

Defendant Southern California Edison Company, erroneously sued as Edison Electric Company (“Defendant”), demurs to both causes of action in the first amended complaint (“FAC”) filed by Plaintiff Darryl Turman (“Plaintiff”). Defendant argues Plaintiff failed to allege sufficient facts to constitute the causes of action, it cannot be ascertained from the allegations whether the contract was oral or implied in conduct, and the causes of action are uncertain. (Notice of Demurrer pgs. 2-3.)

Defendant’s 5/7/21 request for judicial notice is granted; however, the Court does not take judicial notice of the truth of the matters asserted in the documents.

Background

As a self-represented litigant, Plaintiff filed his initial complaint in the instant action on March 27, 2017. On January 22, 2020, Plaintiff filed an Amendment to Complaint (Fictitious/Incorrect Name) to correct the name of Defendant. On February 21, 2020, Plaintiff filed his FAC in which he alleged a single cause of action for breach of oral/binding implied contract. (FAC pgs. 3-4.) On February 23, 2021, the Court sustained Defendants’ demurrer to the FAC with 60 days leave to amend. On April 14, 2021, Plaintiff filed his SAC which is incorrectly captioned “Opposition to [Defendant’s] Demurrer to the [FAC] with Leave to an Amended Complaint.” The Court notes that while the SAC is not properly formatted as a pleading complaint, it appears to include the same allegations as the handwritten portion attached to Plaintiff’s FAC. Defendant filed the instant demurrer on May 7, 2021. On July 27, 2021, Plaintiff filed an opposition (“First Opposition”), which he drafted and signed as a self-represented litigant, in which he asserts the SAC filed on April 14, 2021, was intended to be Plaintiff’s amended pleading, notwithstanding its incorrect caption, which was the result of Plaintiff’s inability to see well when drafting the document. On August 17, 2021, Plaintiff filed a second opposition to the demurrer (“Second Opposition”) drafted by Darren M. Richie and Shaant Goorgian of DRE Law, APC (“DRE”), in which the caption indicates DRE is counsel for Plaintiff. The Court notes it has not received a notice of substitution indicating DRE’s representation of Plaintiff, and instead the Court records indicate Plaintiff is still self-represented. On August 23, 2021, Defendant filed a reply.

As a preliminary matter, the Court accepts the SAC filed on April 14, 2021, as Plaintiff’s operative pleading notwithstanding its incorrect caption. Accordingly, Defendant’s request the Court dismiss the case for Plaintiff’s failure to file an amended pleading is denied. (Demurrer, pg. 2.)

Allegations of SAC

Plaintiff alleges that on October 4, 2013, he was seriously injured after stepping into a broken utility box owned and operated by Defendant. (SAC, pg. 2.) Plaintiff sought medical attention the next day and thereafter from 2013 to 2021. (SAC, pg. 2; Exh. G.) Plaintiff filed a personal injury claim with Defendant’s claim department, was assigned claim number 201500279, and was assigned Scott Hayashi (“Hayashi”) as a claim representative. (SAC, pg. 2.) Plaintiff alleges he and “defendant” agreed to meet at the accident location in March 2015, during which meeting: (1) Plaintiff noticed the defective utility box cover had been repaired; (2) “defendant” asked plaintiff to point out the broken utility box and Plaintiff chose the correct utility box; (3) “defendant admitted to being at fault for [Plaintiff’s] injuries”; (4) “defendant” asked Plaintiff if he had an attorney, to which Plaintiff responded not at that time; (5) “defendant” promised Plaintiff there would be no need for him to obtain legal representation since Defendant would compensate Plaintiff for his out-of-pocket medical expenses; (6) “defendant” asked Plaintiff the amount of his out-of-pocket medical expenses and Plaintiff stated it was approximately $30,000; (7) “defendant” promised Plaintiff would be compensated for the $30,000 and that a settlement was guaranteed since “the defendant” admitted fault for Plaintiff’s injuries; (8) Plaintiff accepted that offer that calculated an incentive payment of $30,000; and (9) due to defendant’s promise that Plaintiff would not need to obtain a lawyer because defendant would be taking full responsibility for Plaintiff’s injuries. (SAC, pgs. 2-4, Exhs. A, F, G-S.) [The Court notes Plaintiff refers to his meeting with “defendant”; however, based on the allegations as a whole an the FAC and complaint, it appears the meeting occurred with Hayashi.]

Plaintiff alleges he thereafter tried on numerous occasions to contact Hayashi “to discuss and possible settle” the estimated $30,000, but “defendant” failed to meet the agreed upon obligation to maintain adequate communication to discuss the agreed upon promise of settlement of costs. (SAC, pg. 4, Exh. E.) Plaintiff alleges defendant purposely delayed the original agreed upon promise to pay until the statute of limitations for filing a negligence lawsuit expired. (SAC, pg. 4.)

The allegations of the SAC are not substantively different from those in the FAC with the exception of an allegation relating to Plaintiff’s alleged acceptance of an offer. (See FAC, Attachment.) Moreover, like the FAC, the SAC omits and alters allegations from the complaint relating to the promises made by Hayashi in March 2015. Specifically, Plaintiff previously alleged Hayashi only asked how much Plaintiff’s out-of-pocket expenses were, that they discussed an incentive payment, that they discussed additional payment if additional surgery was needed, and that Hayashi agreed to discuss payment options with Defendant and that he would get back as soon as possible with an answer for a settlement. (Complaint, Attachment, pg. 4.)

Breach of Oral/Binding Implied Contract (1st COA)

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. [Citation.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Plaintiff failed to allege facts suggesting the existence of a contract between him and Defendant. Plaintiff only alleges that Defendant’s representative admitted fault for Plaintiff’s injuries and that Hayashi told Plaintiff Defendant would compensate him for his medical expenses.

Plaintiff’s SAC adds the following allegation that he “accepted that offer [] that calculated an incentive for payment of [$30,000] for medical expense[s]. It was at that point that defendant constituted an offer creating a blind [sic] implied contract. Where as [sic] an adjustment was applied to calculate an incentive for payment [] [a]nd [due] to the agree[d] upon promise made by defendant to the plaintiff stating that there wouldn’t be any need for plaintiff to obtain a lawyer because defendant was taking full responsibility for being at fault…” However, these allegations are vague and uncertain, and appear directed at addressing that the Court’s prior ruling that Plaintiff had not alleged he accepted Hayashi’s offer. However, the Court’s prior ruling did not sustain the demurrer to the cause of action on this alone, rather, the Court found that taking into account Plaintiff’s previous assertions in response to Defendant’s motion to strike, Plaintiff’s conclusory allegation Hayashi agreed Defendant would pay Plaintiff’s medical bills contradicts with his previous judicial admissions and was insufficient to allege the existence of a contract. (See 2/23/21 Ruling, pg. 3 [citing Demurrer, pgs. 1, 3, 5, citing Del E. Webb Corp. v. Structural Materials Co. (1981), 123 Cal.App.3d 593, RJN, Exh. D].) Plaintiff’s SAC fails to cure the fact that Plaintiff’s admissions in other documents in the instant case file confirm Plaintiff’s original allegations; namely, that Hayashi only agreed that he would check with his boss Paul Penolten regarding a possible payment to Plaintiff, and not that Hayashi agreed Plaintiff would be paid for his medical expenses. Plaintiff’s amended allegation that Hayashi instead promised Plaintiff Defendant would fully pay Plaintiff’s medical expenses conflicts with his judicial admissions and is subject to demurrer. In addition, even in alleging the contract itself, Plaintiff failed to allege the terms of the agreement or their legal effect.

In opposition, Plaintiff argues he has adequately alleged the elements of the breach of contract cause of action. (Second Opposition, pgs. 4-5.) However, it is not clear what allegations the opposition is relying on, as they do not appear in the SAC, FAC, or complaint and appear to be based on facts of an entirely unrelated matter. (See Second Opposition, pg. 5:3-10 [“From August 2009 to September 2010, Plaintiff spent $1864 on Defendant’s account… entitled to receive the money from Defendant.”].) Plaintiff’s conclusory arguments in opposition that Plaintiff sufficiently alleged the elements of the cause of action are insufficient. To the extent Plaintiff argues the demurrer should be overruled for Defendant’s reliance on “extrinsic evidence,” this argument is without merit since, as discussed above and in the prior ruling, the Court my rely on the operative pleading and Plaintiff’s judicial admissions in prior pleadings in the instant action. Notably, the opposition does not cite to any of Plaintiff’s allegations in support of its assertion that they sufficiently state a cause of action for breach of contract, and instead makes the conclusory assertion they are sufficient. Similarly, Plaintiff’s assertion he can allege a claim for common counts without addressing allegations that would support such a claim is likewise conclusory. Moreover, a claim for common counts goes beyond the scope of amendment permitted by the Court in its prior ruling, and Plaintiff has not sought, and the Court has not granted, further leave to amend his pleading.

Moreover, Plaintiff’s amended allegations fail to address whether the contract was both oral or implied. (C.C.P. ; 430.10(g) [A demurrer lies where “[i]n 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.”]) Here, Plaintiff still alleges that in 2015, Hayashi orally promised Plaintiff that Defendant would pay Plaintiff’s medical expenses for Plaintiff’s injury and that Plaintiff, in reliance on this representation, did not file a personal injury claim against Defendant prior to the expiration of the statute of limitations. As such, it appears Plaintiff’s cause of action is for an oral contract. However, as discussed above, Plaintiff’s allegation that Hayashi promised Plaintiff payment conflicts with his previous judicial admissions that Hayashi would check with his supervisor as to whether a payment to Plaintiff could be made. As such, Plaintiff’s allegations are subject to demurrer.

Plaintiff bears the burden of proving there is a reasonable possibility of amendment. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Neither of Plaintiff’s oppositions address how the defects in the pleading can be cured via amendment.

Based on the foregoing, Defendant’s demurrer to the 1st cause of action is sustained without leave to amend.

Dated: August _____, 2021

Hon. Monica Bachner

Judge of the Superior Court

'


Case Number: ****5422    Hearing Date: February 23, 2021    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

DARRYL TURMAN,

vs.

EDISON ELECTRIC COMPANY, et al.

Case No.: ****5422

Hearing Date: February 23, 2021

Defendant Southern California Edison Company’s unopposed demurrer to the first amended complaint is sustained with leave to amend.

Defendant’s motion to strike is moot.

Defendant Southern California Edison Company, erroneously sued as Edison Electric Company (“Defendant”), demurs to both causes of action in the first amended complaint (“FAC”) filed by Plaintiff Darryl Turman (“Plaintiff”). Defendant argues Plaintiff failed to allege sufficient facts to constitute the causes of action, it cannot be ascertained from the allegations whether the contract was oral or implied in conduct, and the causes of action are uncertain. (Notice of Demurrer pgs. 2-3.)

Defendant’s 10/29/20 request for judicial notice of rulings and documents filed in this case is granted. (RJN, Exhs. A, B, C D.) However, the Court will not take judicial notice of the truth of the matters asserted in the court’s records.

Plaintiff filed his initial complaint in the instant action on March 27, 2017. On January 22, 2020, Plaintiff filed an Amendment to Complaint (Fictitious/Incorrect Name) to correct the name of Defendant. On February 21, 2020, Plaintiff filed his FAC in which he appears to allege a single cause of action for breach of oral/binding implied contract. (FAC pgs. 3-4.) The FAC also refers to “covenant of good faith and fair dealing,” however, it is not clear if Plaintiff alleges a breach of this covenant as a separate cause of action. In addition, while the complaint included breach of implied covenant of good faith and fair dealing as the 2nd cause of action, these pages are omitted from the FAC. Accordingly, the Court construes Plaintiff’s FAC as alleging a single cause of action of breach of oral/binding implied contract. Plaintiff alleges that on or about March 2015, an oral agreement was made between Plaintiff and Scott Hayashi (“Hayashi”) and that on or about March 2015, Defendant breached the agreement in the manner set forth in the attachment. (FAC ¶¶BC-1, BC-2.) Plaintiff alleges he performed all obligations to defendant by submitting medical records that indicated treatment for the injuries and lost wages as requested by Defendant’s representative Hayashi. (FAC ¶BC-3.) Plaintiff alleges he was damaged by Defendant’s breach because it made him unable to meet the two-year statute of limitations to file a personal injury negligence claim and due to Defendant’s representative’s misleading representations pertaining to a settlement for the out of pocket cost of the medical bills, lost wages, and pain and suffering. (FAC ¶BC-4.)

Plaintiff alleges he filed a personal injury claim relating to his accidentally stepping into a hole in a utility box with Defendant in October 2013 at which time he was assigned Hayashi as a representative. [The Court notes in the Complaint Plaintiff alleges he filed the claim in 2014 and the injury occurred in October 2013.] Plaintiff alleges Hayashi advised him there was no need to file a personal injury lawsuit because of the possibility of reaching an agreement once the claim had been investigated. Plaintiff alleges he agreed to meet with Hayashi in March 2015 at the site of the incident, and at time Plaintiff noticed the box had been repaired, which Hayashi purposely did with the intention of deceiving Plaintiff. Plaintiff alleges Hayashi admitted Defendant was at fault and agreed to compensate Plaintiff for his medical bills, which were estimated at $30,000 at that particular time, which constituted a binding implied contract and oral agreement. Plaintiff alleges he thereafter tried contacting Hayashi for payment and to discuss the terms of the settlement; however, Hayashi’s strategy was to purposely delay the agreed upon obligation, so the statute of limitations would run on Plaintiff’s right to file a personal injury action against Defendant. (FAC, Attachment.)

The Court notes Plaintiff’s FAC omits and alters allegations from the complaint relating to the promises made by Hayashi in March 2015. Specifically, Plaintiff previously alleged Hayashi only asked how much Plaintiff’s out-of-pocket expenses were, that they discussed an incentive payment, that they discussed additional payment if additional surgery was needed, and that Hayashi agreed to discuss payment options with Defendant and that he would get back as soon as possible with an answer for a settlement. (Complaint, Attachment, pg. 4.)

Breach of Oral/Binding Implied Contract (1st COA)

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. [Citation.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Plaintiff failed to allege facts suggesting the existence of a contract between him and Defendant. Plaintiff only alleges that Defendant’s representative admitted fault for Plaintiff’s injuries and that Hayashi told Plaintiff Defendant would compensate him for his medical expenses. However, Plaintiff does not allege he accepted this offer by Hayashi. Moreover, taking into account Plaintiff’s previous assertions in response to Defendant’s motion to strike, Plaintiff’s conclusory allegation Hayashi agreed Defendant would pay Plaintiff’s medical bills contradicts with his previous judicial admissions, and is insufficient to allege the existence of a contract. (Demurrer, pgs. 1, 3, 5, citing Del E. Webb Corp. v. Structural Materials Co. (1981), 123 Cal.App.3d 593, RJN, Exh. D.) Plaintiff’s admissions in the documents subject to judicial notice confirm Plaintiff’s original allegations; namely, that Hayashi only agreed that he would check with his boss Paul Penolten regarding a possible payment to Plaintiff, and not that Hayashi agreed Plaintiff would be paid for his medical expenses. (Demurrer, pg. 6; RJN, Exh. D.) Plaintiff’s amended allegation that Hayashi instead promised Plaintiff Defendant would fully pay Plaintiff’s medical expenses conflicts with his judicial admissions and is subject to demurrer. In addition, even in alleging the contract itself, Plaintiff failed to allege the terms of the agreement or their legal effect, including the amount Defendant allegedly agreed to pay Plaintiff, which varies in the FAC from $30,000 to more.

Plaintiff alleges the contract was both oral and implied and the factual allegations do not establish whether the contract was oral or implied. (C.C.P. ; 430.10(g) [A demurrer lies where “[i]n 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.”]) The Court notes Defendant’s argument that Plaintiff must “allege in detail the facts from which the promise is implied” to plead a cause of action for an agreement implied from conduct. (Demurrer, pgs. 4-5, citing Requa v. Regents of the Univ. of California (2012) 213 Cal. App. 4th 213, 227-228 (“Requa”) and Foley v. Interactive Data Corp (1988) 47 Cal.3d 654, 663-664, 675.) However, these cases do not set forth a detailed pleading requirement for the cause of action, rather they involve cases in which the reviewing Court found sufficient facts relating to the promise implied had been alleged to state a cause of action. Rather, in Requa the Court found the plaintiffs’ allegations sufficient because, “[i]n pleading a cause of action on an agreement implied from conduct, only the facts from which the promise is implied must be alleged.” (Requa v. Regents of University of California, supra, 213 Cal.App.4th at 228.) Here, Plaintiff alleges that in 2015, Hayashi orally promised Plaintiff Defendant would pay Plaintiff’s medical expenses for Plaintiff’s injury and that Plaintiff, in reliance on this representation, did not file a personal injury claim against Defendant prior to the expiration of the statute of limitations. However, as discussed above, Plaintiff’s allegation that Hayashi made a promise to Plaintiff for such payment conflicts with his previous judicial admissions that Hayashi would check with his supervisor as to whether a payment to Plaintiff could be made. As such, Plaintiff’s allegations are subject to demurrer.

Plaintiff bears the burden of proving there is a reasonable possibility of amendment. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court notes Plaintiff has not filed an opposition addressing how the defects in the pleading can be cured via amendment. Accordingly, Plaintiff has not met his burden. However, given this is the first instance the Court is addressing Defendant’s demurrer to Plaintiff’s pleading on its merits since the previous demurrer was rendered moot by Plaintiff’s filing of the FAC and given Plaintiff’s self-represented status, the Court, in its discretion, grants Plaintiff leave to amend.

Based on the foregoing, Defendant’s demurrer to the 1st cause of action is sustained with leave to amend.

Motion to Strike

In light of the ruling on demurrer, the motion to strike is moot.

Dated: February _____, 2021

Hon. Monica Bachner

Judge of the Superior Court



Case Number: ****5422    Hearing Date: October 05, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

DARRYL TURMAN,

vs.

EDISON ELECTRIC COMPANY, et al.

Case No.: ****5422

Hearing Date: October 5, 2020

Defendant Southern California Edison Company’s demurrer to the Complaint and motion to strike portions of the Complaint are moot.

Defendant Southern California Edison Company, erroneously sued as Edison Electric Company (“Defendant”), demurs to both causes of action in the Complaint. Defendant argues that Plaintiff failed to allege sufficient facts to constitute the causes of action, it cannot be ascertained from the allegations whether the contract was oral or implied in conduct, and the causes of action are uncertain. (Notice of Demurrer pgs. 2-3.) Plaintiff filed the Complaint on March 27, 2017. Plaintiff filed an Amendment to the Complaint (Fictitious/Incorrect Name) to correct the name of Defendant from Edison Electric Company to Southern California Edison. Defendant filed the demurrer and motion to strike on February 18, 2020. Thereafter, Plaintiff filed a First Amended Complaint (“FAC”) on February 21, 2020. A plaintiff is entitled to amend a pleading at least once without leave of court before the answer or demurrer is filed; or if defendant demurs, before the opposition is due on the hearing on the demurrer. (CCP ; 472(a).) Thus, the demurrer and the motion to strike are moot.

Dated: October _____, 2020

Hon. Monica Bachner

Judge of the Superior Court