Tentative Rulings

Case Number: *******4247 Hearing Date: October 13, 2021 Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

I. BACKGROUND

This dispute arises from events on March 15, 2019, in which plaintiff Deniz Iriajen boarded a Los Angeles city bus and became engaged in an altercation with bus driver Felix Masterson (Masterson). Plaintiff was thereupon instructed by Masterson to exit the bus and then did so. After exiting the bus, plaintiff’s arm became caught between the bus doors when Masterson shut them, thereby injuring plaintiff, an act that plaintiff alleges was intentional.

On February 3, 2020, plaintiff filed an initial complaint against defendants Los Angeles County Metropolitan Transportation Authority (MTA) and Does 1 through 10, asserting a single cause of action for negligence. On July 2, 2021, plaintiff filed her now-operative first amended complaint (FAC), alleging: (1) personal injury (negligence); (2) assault and battery; (3) violation of the BANE Civil Rights Act; (4) violation of the RALPH Civil Rights Act; (5) violation of the UNRUH Civil Rights Act; and (6) intentional infliction of emotional distress (IIED).

On August 2, 2021, defendant filed a demurrer to plaintiff’s FAC, a motion to strike punitive damages (MTS), and a request for judicial notice (RJN).

On September 14, 2021, defendant filed an amended demurrer to plaintiff’s FAC and an amended RJN.^[1] In its amended demurrer (hereafter, simply the “demurrer”), defendant demurs to all six causes of action in plaintiff’s FAC, stating as grounds for each that the claim is insufficiently stated to constitute a cause of action, the pleading is uncertain, and facts of which defendant has requested the Court take judicial notice demonstrate that each claim is barred by the California Tort Claims Act (CTCA) and the statute of limitation.

On September 20, 2021, plaintiff filed opposition to defendant’s amended demurrer and defendant’s MTS.

On September 27, 2021, defendant filed reply to plaintiff’s opposition to demurrer, but not to plaintiff’s opposition to defendant’s MTS.

II. LEGAL STANDARD

a. Demurrer

A demurrer for sufficiency tests only whether the pleading states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn); SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 (stating that a demurrer tests just the pleadings, not evidence or extrinsic matters).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice, and courts read the allegations therein liberally and in context. (Code Civ. Proc. ; 430.30(a); Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) Thus, a demurrer for sufficiency shall be sustained where the pleading, as it stands and unconnected with extraneous matters, fails to state a cause of action. (Hahn v. Mirda, supra, at p. 747.)

A special demurrer for uncertainty may be brought under Code of Civil Procedure ; 430.10(f) where the demurrer is so poorly written that the defendant cannot reasonably respond, but it is a disfavored grounds for sustaining demurrer. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616 (Khoury).) An otherwise vague and ambiguous pleading is not uncertain if the defendant can reasonably determine the issues to admit or deny and what claims are being alleged, and even where the pleadings are genuinely vague, the courts disfavor grounds of uncertainty where “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

b. The meet and confer requirement is satisfied.

Before filing a demurrer, the demurring party is required to make a reasonable and good faith attempt to confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached by filing of an amended pleading that would resolve the objections to be otherwise raised in the demurrer. (Code Civ. Proc. ; 430.41.) Should the parties be unable to meet and confer, the demurring party may serve a declaration stating that “the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith,” and this will be sufficient. (Code Civ. Proc. ; 43.41(a)(3)(B).)

Here, the parties met and conferred telephonically on matters raised by defendant’s demurrer on July 29, 2021, but were unable to reach agreement. (Plessala Dec., ¶ 3 [Dem., p. 16].)

Thus, the statutory meet and confer requirement is satisfied.

c. The Court considers defendant’s demurrer as if it were timely filed.

“A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (Code Civ. Proc. ; 430.40(a).) But “[t]he court may, in furtherance of justice, and on any terms as may be proper … enlarge the time for … demurrer.” (Code Civ. Proc. ; 473(a)(1).)

Here, plaintiff filed her FAC July 2, 2021. Defendant filed the initial demurrer August 2, 2021, then the amended demurrer on September 14, 2021. But plaintiff does not object to the timing of defendant’s demurrer, and the Court, having discretion under Code Civ. Proc. ; 473, is inclined to address demurrers on their merits where possible.

Thus, the Court considers defendant’s demurrer as if it were timely filed.

d. Leave to Amend

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) Successive attempts at filing a well-pleaded Complaint will, however, require separate motion.

III. REQUESTS FOR JUDICIAL NOTICE

Defendant submitted an amended RJN (hereafter, simply “RJN”), which asks that the Court take judicial notice pursuant to Evidence Code ;; 451, 452 and Code of Civil Procedure ; 430.30 (a) of the following:

1. The MTA form titled “Claim for Damages,” which is stamped as received on May 9, 2019, and on which plaintiff states: (a) with reference to Driver #80539 and Bus #8272, "on March 15, 2019 [Driver #80539] intentionally closed my left arm in the bus door twice”; (b) as to the particular act, \'\'the driver committed a reckless and intentional [sic] by returning to the bus and he closed the double doors on my left arm twice without provocation”; and (c) as to identifying witnesses, "See Police Report" (the Claim for Damages). A copy of the Claim for Damages is attached to the RJN as Exh. A.
2. A letter dated August 6, 2019, sent by plaintiff, which is a public entity, to defendant in response to plaintiff’s Claim for Damages, rejecting plaintiff’s claim (the Rejection Notice). A copy of the Rejection Notice is attached to the RJN as Exh. B.
3. A copy of plaintiff’s original complaint, filed February 3, 2020, alleging a single cause of action for general negligence. A copy of plaintiff’s original complaint is attached to the RJN as Exh. C.
4. Another form titled “Claim for Damages” created for use by MTA, which is marked as received on June 1, 2021, and which has attached a three-page memorandum containing allegations against, including violations of the California Unruh Civil Rights Act, Ralphs Civil Rights Act, the California Bane Civil Rights Act, assault and battery, and IIED (the Amended Claim for Damages). A copy of the Amended Claim for Damages is attached to the RJN as Exh. D.
5. The Los Angeles Police Department’s Report of the incident on March 15, 2019, which identifies Masterson as being then arrested (the Police Report). A copy of the Police Report is attached to the RJN as Exh. E.
6. Page 5 of the Police Report, which is the Private Person\'s Arrest Statement Form and on which plaintiff Iriajen is identified as the private person demanding the arrest of Masterson (thee Arrest Statement Form). The Arrest Statement Form is attached to the RJN as Exh. E, p. 5.

These documents being properly noticeable under Code of Civil Procedure ; 450, et seq., the Court grants defendant’s requests for judicial notice.

IV. DISCUSSION

Defendant demurs to each of plaintiff’s six causes of action in the FAC: (1) personal injury (negligence); (2) assault and battery; (3) violation of the BANE Civil Rights Act; (4) violation of the RALPH Civil Rights Act; (5) violation of the UNRUH Civil Rights Act; and (6) IIED. As grounds for demurring to each, plaintiff states the claim is insufficiently stated to constitute a cause of action, the pleading is uncertain, and facts of which the Court has taken judicial notice demonstrate that each claim is barred by the CTCA and the statute of limitation.

a. Defendant is a public entity, and plaintiff’s claims are subject to time-based restrictions under CTCA; but plaintiff’s tort claims relate back.

The CTCA includes time-based restrictions on filing claims against public entities, relevant provisions of which are codified as follows.

Under Government Code^[2] ; 911.2, “A claim [against a public entity] relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented … not later than six months after the accrual of the cause of action.” Under ; 910.6(a), “A claim [against a public entity] may be amended at any time before the expiration of the period designated in Section 911.2 or before final action thereon is taken by the board, whichever is later, if the claim as amended relates to the same transaction or occurrence which gave rise to the original claim.” And under ; 945.6(a)(1), barring a number of exceptions, “[A]ny suit brought against a public entity on a cause of action for which a claim is required to be presented … [and for which] … written notice is given in accordance with Section 913, [must be commenced] not later than six months after the date such notice is personally delivered or deposited in the mail.” In other words, after the relevant claim form is rejected, a plaintiff has six months to file a court action for the events or dispute which were covers by that form.

Here, the incident took place on March 15, 2019, which is the date of accrual of plaintiff\'s cause of action. Plaintiff therefore had six months to file a claim. The judicially noticed Claim for Damages, marked received by MTA on May 9, 2020, was therefore timely presented to defendant.

MTA rejected plaintiff\'s Claim for Damages on August 6, 2019, upon which plaintiff had until February 6, 2020, to file a lawsuit. On February 3, 2020, plaintiff filed her original complaint, which was timely, asserting a single cause of action for general negligence only.

On July 2, 2021, plaintiff filed her FAC. Amendments to the original complaint brought in plaintiff’s FAC for which the statute of limitations would have otherwise run will nonetheless “be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts.” (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600; see also Smeltzley v. Nicholson Manufacturing Co. (1977) 18 Cal.3d 932, 936.)

Here, plaintiff alleges in the FAC claims for assault and battery and IIED which were not alleged by plaintiff in the complaint. However, these claims are pleaded on the same general set of facts as are alleged in plaintiff’s original complaint, and they are therefore not barred as untimely because they relate back plaintiff in the original complaint (as well as the original Claim for Damages form) alleges all facts on which these causes of action are based, i.e., that a bus driver intentionally shut plaintiff’s arm in a bus door.

Thus, plaintiff’s second and sixth causes of action for assault and battery and IIED are not time-barred by CTCA, and defendant’s demurrer is overruled on these grounds.

b. Plaintiff’s civil rights claims in the FAC are not sought according to the same general set of facts alleged in plaintiff’s complaint, but the delayed-accrual doctrine applies.

“[A] cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action. In that case, the statute of limitations for that cause of action will be tolled until such time as a reasonable investigation would have revealed its factual basis.” Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 803.

On June 1, 2021, plaintiff submitted to defendant the Amended Claim for Damages, stating claims against defendant such as those appearing in the FAC, including violations of the BANE, RALPH, and UNRUH Civil Rights Acts. Then, on June 4, 2021, and before defendant’s deadline to respond to the Amended Claim for Damages, plaintiff filed a motion for leave to amend her complaint and file her FAC. The Court granted this motion on July 1, 2021.

Defendant argues, “Plaintiff did not allege in the [original] Claim that Mr. Masterson\'s conduct was based on discrimination. Causes of action based on discrimination is a significant factual variance from Plaintiff\'s Claim for battery. Consequently, the Claim does not correspond with the causes of action for discrimination that Plaintiff seeks to add to the Complaint. In accordance with the CTCA, Plaintiff is barred from adding causes of action three (3) through five (5).” (Dem. p. 11, ¶ 1.)

Finding indication of a civil rights claim in neither the timely Claim for Damages submitted to MTA on May 9, 2020, nor plaintiff’s original complaint, the Court finds that plaintiff’s civil rights claims in the FAC do not relate back to the original complaint.

However, plaintiff asserts that new evidence supports plaintiff’s new legal theories for recovery, including theories that support recovery for civil rights claims. Plaintiff cites, as such evidence, testimony by LAPD Officer Torres (Torres) on May 19, 2021, that Masterson made “a racially insensitive comment that was a concern to him and he brought that up with the MTA supervisor who appeared at the scene.” (Opp., p. 2, ¶ 4.) Defendant further characterizes this evidence as tending to show “that [Masterson] made a comment to [Torres] that black people who did not pay their fare [sic] and that [Torres’] thought the comment was disconcerting and raised it with [Masterson’s] supervisor.”

Other than this testimony by Officer Torres, plaintiff cites no other specific evidence showing new facts that did not exist prior to May 2021, which would support recovery for civil rights claims. Plaintiff merely asserts that, upon review of other evidence, she was led to a “higher degree of certainty that the act was intentional and because of her race.” (Opp., p. 3, ¶ 1.) Even so, discovery of the testimony by Torres alone is sufficient grounds for application of the delayed-accrual doctrine. Therefore, the FAC, in which plaintiff alleges civil rights claims on the basis of Masterson’s alleged demonstration of racial animus, was timely filed on July 2, 2021, as the relevant statute of limitations did not begin tolling until May 19, 2021.

c. Having argued no other grounds for demurrer for sufficiency or uncertainty, defendant’s demurrer is overruled.

Defendant demurs to plaintiff’s FAC for sufficiency and uncertainty. But defendant’s demurrer only argues grounds for demurrer on the bases that the statute of limitations has run under CTCA. Having dispensed with these statute of limitations arguments, the Court is presented by defendant with no other grounds for demurrer. Thus, defendant’s demurrer is overruled in its entirety.

d. Defendant’s motion to strike punitive damages is granted in part.

Defendant moves to strike those portions of plaintiff’s FAC in which plaintiff seeks punitive damages, specifically FAC ¶¶ 59 and 91, as well as ¶ 3 of plaintiff’s prayer for relief. The motion is granted.

; 818 provides, in relevant part, “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant." But, while ; 818 prohibits claims of punitive damages against public entities, it does not prohibit such claims against individual public employees. (Runyon v. Superior Court (1986) 187 Cal.App.3d 878, 881.)

Here, defendant is a public entity, against which, under ; 818, plaintiff improperly seeks claims for punitive damages. But defendant cannot rely on ; 818 to bar claims for punitive damages against Masterson as an individual.

As the paragraphs at issue only allege claims of punitive damages against defendant MTA, the motion to strike is granted as to those. But there are other claims for punitive damages which are properly alleged against defendant Masterson (e.g., FAC, ¶ 80), so the motion to strike prayer for relief No. 3 is denied.

Thus, defendant’s motion to strike punitive damages is granted in part and denied in part.

V. CONCLUSION

Defendant’s demurrer to plaintiff’s FAC is OVERRULED.

Defendant’s motion to strike paragraphs 59 and 91 in the FAC is GRANTED with leave, but only insofar as amendment may allege claims against defendant Masterson (i.e., plaintiff may not re-allege claims for punitive damages against defendant MTA).

Defendant’s motion to strike prayer for relief No. 3 in the FAC is DENIED.

Plaintiff is ORDERED to give notice.

DATED: October 13, 2021

_____________________

Hon. Bernie C. LaForteza

Judge of the Superior Court

Case Number: *******4247    Hearing Date: September 30, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

NOTICE

The Court posts this tentative order two days in advance of the hearing. Any party who does not appear at the hearing—either in person or remotely via LACourtConnect—shall waive the right to be heard and shall submit to this tentative order.

TENTATIVE ORDER

Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) moves to compel responses from Plaintiff Deniz Iriajen (“Plaintiff”) to: (1) Form Interrogatories, Set One; and (2) Special Interrogatories, Set One. The discovery requests were served by mail on March 3, 2020, meaning that verified responses were due on April 7, 2020. As of the date of these motions, no responses have been received. Plaintiff has not opposed the motions, and there is nothing in the record suggesting that Plaintiff has complied with her discovery obligations. Therefore, the motions are granted. The Court declines to impose sanctions, as it appears from the record that there was a communication breakdown between Plaintiff and her former counsel.

CONCLUSION AND ORDER

Defendant’s motions to compel are granted. The Court orders Defendant to serve a copy of this order, as well as copies of the Form Interrogatories, Set One, and the Special Interrogatories, Set One upon Plaintiff, who is a self-represented party. Plaintiff shall provide verified responses, without objections, within forty-five (45) days of notice of this order. Defendant shall provide notice.

DATED: September 30, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court