Pending - Other Pending
Personal Injury - Other Personal Injury
WILLIAM A. CROWFOOT
RUSSELL PATTEN INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO AND ADMINISTRATOR OF THE ESTATE OF DANIEL PATTEN II
CALIFORNIA DEPARTMENT OF TRANSPORTATION
CALIFORNIA HIGHWAY PATROL
CITY OF CARSON
COUNTY OF LOS ANGELES
LOS ANGELES COUNTY SHERIFF'S DEPARTMENT
STATE OF CALIFORNIA
NIDEFFER CONOR R.
BRENNER ANITA SUSAN
DWYER NICHOLAS P.
TORRES LEONARD E.
5/17/2022: Notice of Ruling
5/12/2022: Notice - NOTICE OF REMOTE APPEARANCE
5/13/2022: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); HEA...)
5/2/2022: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT CITY OF CARSONS DEMURRER TO COMPLAINT
5/2/2022: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT CITY OF CARSONS MOTION TO STRIKE PORTIONS OF COMPLAINT
5/2/2022: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT COUNTY OF LOS ANGELESS MOTION TO STRIKE PUNITIVE DAMAGE AND PREJUDGMENT INTEREST CLAIMS
5/2/2022: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT COUNTY OF LOS ANGELESS DEMURRER TO COMPLAINT
5/6/2022: Reply - REPLY DEFENDANT CITY OF CARSONS REPLY TO OPPOSITION TO ITS MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT
5/6/2022: Reply - REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT
5/6/2022: Reply - REPLY TO OPPOSITION TO MOTION TO STRIKE PUNITIVE DAMAGES, PREJUDGMENT AND PRE-TRIAL INTEREST CLAIMS, PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 435, ET SEQ.
5/6/2022: Reply - REPLY DEFENDANT CITY OF CARSONS REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFFS COMPLAINT
4/14/2022: Demurrer - with Motion to Strike (CCP 430.10)
4/14/2022: Declaration - DECLARATION OF NICHOLAS P. DWYER IN SUPPORT OF DEFENDANT CITY OF CARSONS DEMURRER TO
4/14/2022: Declaration - DECLARATION OF NICHOLAS P DWYER IN SUPPORT OF DEFENDANT CITY OF CARSONS MOTION TO STRIKE PLAINTIFFS COMPLAINT
4/14/2022: Motion to Strike (not initial pleading) - MOTION TO STRIKE (NOT INITIAL PLEADING) PORTIONS OF PLAINTIFFS' COMPLAINT
12/30/2021: PI General Order
12/30/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATES
3/30/2022: Demurrer - with Motion to Strike (CCP 430.10)
Hearing12/19/2024 at 08:30 AM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: DismissalRead MoreRead Less
Hearing06/22/2023 at 08:30 AM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
Hearing06/08/2023 at 10:00 AM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing07/18/2022 at 1:30 PM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)Read MoreRead Less
Hearing07/18/2022 at 1:30 PM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)Read MoreRead Less
DocketNotice of Ruling; Filed by COUNTY OF LOS ANGELES (Defendant)Read MoreRead Less
Docketat 1:30 PM in Department 27; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Continued - Court's MotionRead MoreRead Less
Docketat 1:30 PM in Department 27, William A. Crowfoot, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Continued - Court's MotionRead MoreRead Less
DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10); Hea...)); Filed by ClerkRead MoreRead Less
DocketNotice (OF REMOTE APPEARANCE); Filed by CITY OF CARSON (Defendant)Read MoreRead Less
DocketNotice (OF ASSOCIATION OF COUNSEL); Filed by COUNTY OF LOS ANGELES (Defendant)Read MoreRead Less
DocketRequest for Judicial Notice; Filed by COUNTY OF LOS ANGELES (Defendant)Read MoreRead Less
DocketMotion to Strike (not initial pleading) (PUNITIVE DAMAGES, PREJUDGMENT AND PRE-TRIAL INTEREST CLAIMS, PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 435, ET SEQ); Filed by COUNTY OF LOS ANGELES (Defendant)Read MoreRead Less
DocketDemurrer - with Motion to Strike (CCP 430.10) (TO PLAINTIFFS? COMPLAINT;); Filed by COUNTY OF LOS ANGELES (Defendant)Read MoreRead Less
DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by ClerkRead MoreRead Less
DocketPI General Order; Filed by ClerkRead MoreRead Less
DocketSummons (on Complaint); Filed by RUSSELL PATTEN, individually, and as successor-in-interest to and administrator of the ESTATE OF DANIEL PATTEN II (Plaintiff); JENNIFER PATTEN (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by RUSSELL PATTEN, individually, and as successor-in-interest to and administrator of the ESTATE OF DANIEL PATTEN II (Plaintiff); JENNIFER PATTEN (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by RUSSELL PATTEN, individually, and as successor-in-interest to and administrator of the ESTATE OF DANIEL PATTEN II (Plaintiff); JENNIFER PATTEN (Plaintiff)Read MoreRead Less
Case Number: *******6786 Hearing Date: May 13, 2022 Dept: 27
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
Russell patten, individually and as Successor-in-Interest to and Administrator of the Estate of Daniel Patten II, et al.
STATE OF CALIFORNIA, et al.,
CASE NO.: *******6786
[TENTATIVE] ORDER RE: DEFENDANT COUNTY OF LOS ANGELES’ DEMURRER TO PLAINTIFFS’ COMPLAINT AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT; DEFENDANT CITY OF CARSON’S DEMURRER TO PLAINTIFFS’ COMPLAINT AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT
May 13, 2022
On December 23, 2021, plaintiff Russell Patten, individually and as the successor-in-interest to and administrator of the Estate of Daniel Patten II (“Decedent”), along with plaintiff Jennifer Patten (collectively, “Plaintiffs”), filed this action against defendants City of Carson (“City”), County of Los Angeles (“County”) (also erroneously sued as “Los Angeles County Sheriff’s Department”), as well as other governmental entities, including the State of California, California Department of Transportation, and California Highway Patrol. The action arises from illegal street racing that occurred on December 25, 2020, on East 230th Street in the city of Carson. Tony Tatum (“Tatum”) and Henry Hurtado (“Hurtado”), who are nonparties, were drag racing when they lost control of their vehicles and struck Decedent. (Compl., 2.) They were subsequently charged by the Los Angeles County District Attorney with murder and conspiracy to commit a crime. Two other individuals, Alonzo Salazar (“Salazar”) and Gustavo Tarin-Cruz (“Tarin-Cruz”), were also charged with conspiracy to commit a crime for organizing, coordinating, and starting the race between Tatum and Hurtado.
Plaintiffs bring this wrongful death and survival action and assert claims for negligence against Salazar and Tarin-Cruz. Plaintiffs also assert causes of action for general negligence and dangerous condition of public property against the governmental entities.
On March 30, 2022, County filed a demurrer and motion to strike. On April 14, 2022, City filed a demurrer and motion to strike. This ruling addresses the motions brought by both parties.
II. LEGAL STANDARDS
A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., 430.10, subd. (e).)
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., 437.)
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)
Meet and Confer
Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., 430.41, subd. (a); 435.5, subd. (a).)
Defense counsel for County, Leonard E. Torres, declares that on March 21, 2022, he met and conferred with Plaintiffs’ counsel by telephone on all issues presented within the County’s papers but they were unable to resolve their dispute.
On April 1, 2022, defense counsel for City, Nicholas P. Dwyer, filed a declaration for an automatic 30-day extension of time to file a response because he was unable to meet and confer with Plaintiff’s counsel. On April 14, 2022, City filed its demurrer and motion to strike, which were accompanied by another declaration from Mr. Dwyer who attached copies of the email correspondence sent to Plaintiffs’ counsel requesting to meet and confer. Mr. Dwyer declares that he was unable to meet and confer with Plaintiffs’ counsel because he received no response from them to his emails or voicemail messages.
Based on the foregoing, the Court concludes that County and City both satisfied their meet and confer obligations.
County demurs to all causes of action asserted against it on the grounds that they are barred by the immunity conferred under Government Code section 818.2, fail to state a cause of action, and are uncertain. As County does not provide any analysis of how Plaintiffs’ causes of action are uncertain, the Court will only consider whether section 818.2 immunizes the County from liability, and whether Plaintiff pleads a cause of action for dangerous condition of public property.
Government Code 818.2
County first argues that it is immune under Government Code section 818.2, which provides that a public entity is “not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” As pointed out by Plaintiffs in their opposition brief, this interpretation misconstrues Plaintiffs’ Complaint. The crux of Plaintiffs’ allegations is that County failed to take reasonable steps to prevent the creation of a dangerous condition of public property, not that County failed to enforce the law. Therefore, County’s demurrer on this ground is overruled.
Dangerous Condition of Public Property
A governmental entity is liable for an injury caused by its property if at the time of the injury: (1)the property was in a dangerous condition; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred; and (4) the dangerous condition was negligently or wrongfully created by an employee of the entity, or the entity had actual and/or constructive knowledge of the dangerous condition a sufficient time ahead of the injury so as to take measures to protect against the dangerous condition. (Gov’t Code, 835.)
County argues that Plaintiffs fail to state a cause of action because the street race occurred within the city limits of Carson and it is not liable for maintaining the streets in Carson. County requests the Court judicially notice the location of the street race as within the limits of Carson. This unopposed request for judicial notice is granted. County also requests the Court judicially notice the “fact” that County does not “own or control the streets within the City of Carson.” This is a legal conclusion and is not something which can be judicially noticed. This request for judicial notice is denied. Last, County requests the Court judicially notice two maps depicting Carson within Los Angeles County and a printout from City’s website about its Public Works Department. The Court judicially notices the existence of the maps and the printout.
County argues that it does not own or control any of the property within Carson’s city limits because the provision of police services or a public entity’s ability to regulate property is not the equivalent to having control of the property. However, Plaintiffs correctly characterize the issue of control as a question of fact that would be inappropriate to determine at this early stage of the pleadings.
County also argues that the failure to police does not create dangerous condition liability. However, this misconstrues Plaintiffs’ allegations, which include that there was a dangerous condition of property due to a lack of barriers and other restrictions to prevent street racing that was known to be occurring in that location. Furthermore, that a third party was responsible for creating a dangerous condition does not negate the existence of a dangerous condition of public property. (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 800-801.) In Swaner, the plaintiffs were struck by a van being illegally operated on a beach next to a parking lot and the appellate court reversed the trial court’s orders sustaining the public entity’s demurrer because it found that the alleged failure to erect a barrier between the parking lot and the beach was sufficient to state a dangerous condition of public property. The Swaner court pointed to the plaintiffs’ allegations that the public entities knew that automobile racing would take place on the beach, that the vehicles were entering the beach from the parking lot, and people were being injured. The Swaner court held that if proved, these allegations could support a finding that a dangerous condition of public property existed.
Accordingly, County’s demurrer on the grounds that the Complaint fails to state a cause of action is OVERRULED.
Plaintiffs’ Fifth Cause of Action for a Survival Action
The Court additionally notes (and rejects) County’s argument that Plaintiffs’ survival action is “mere surplusage.” A wrongful death is brought on behalf of the deceased person’s heirs while a survival action is based on the claims that the deceased person would have been able to bring if they had lived. The damages and statute of limitations for each of these vary and the causes of action are not duplicative. (Compare Code Civ. Proc., 377.60 with 377.20.) Therefore, County’s demurrer on this ground is OVERRULED.
County’s Motion to Strike
County moves to strike Plaintiffs’ requests for prejudgment interest and punitive damages. County argues that Government Code sections 818 and 825 immunizes it from the imposition of punitive damages. Section 818 provides: “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.” Section 825 addresses whether a public entity that conducts the defense of an employee shall pay any judgment and states, in relevant part, that “nothing in this section authorizes a public entity to pay that part of a claim or judgment that is for punitive or exemplary damages”, unless the Legislature provides its approval for that payment.
Plaintiffs concede that they cannot recover prejudgment interest from the County but argue that punitive measures, in the form of civil penalties, enhanced damages, or other provisions, may be sought. The Court notes that Plaintiffs fail to identify any statutes allowing for civil penalties or enhanced damages which would apply in this action. The Court thus GRANTS County’s motion to strike in its entirety. If Plaintiffs later determine that a statutory basis for civil penalties or other enhanced damages are available, Plaintiffs may file a motion to seek leave to amend.
Accordingly, the Court GRANTS County’s motion to strike.
City demurs to Plaintiffs’ Complaint in its entirety as well as each cause of action asserted against it on the grounds that Plaintiffs fail to state sufficient facts to state a cause of action. City argues that it does not have a duty to protect the public from illegal street racers or to make its streets safe for racers and spectators. City also argues that general negligence cannot be alleged against a public entity. City additionally argues that Plaintiffs fail to state sufficient facts to show that a dangerous condition existed or that their injuries were proximately caused by the dangerous condition.
City argues, as a preliminary matter, that Plaintiffs’ entire complaint is subject to a demurrer because it has no duty to make its streets safe for illegal street racing and Plaintiff does not allege that there is a statute imposing this such duty. City argues that the only statute Plaintiff cites to is Government Code section 835 which concerns a dangerous condition of public property and does not create a duty for the City to make its streets safe for illegal racing. This narrow reading of Plaintiffs’ complaint is not well-taken. Plaintiffs are alleging that City failed to take reasonable steps to remedy or prevent the creation of a dangerous condition, not to make the streets safer for street racing. This argument is rejected and City’s demurrer on this ground is overruled.
Plaintiffs’ Third Cause of Action for General Negligence
City argues that Plaintiffs’ third cause of action for general negligence is not actionable because Plaintiffs have not alleged a statutory basis for liability. In their opposition brief, Plaintiffs acknowledge that there is no “common law tort liability” for public entities but argues that leave should amend should be granted because Plaintiffs can still hold City accountable under vicarious liability principles for public employees under Government Code section 815.2 for their failure to take steps to prevent illegal street racing from occurring.
In its reply, City argues that leave to amend should not be granted because its employees would be entitled to discretionary immunity and would not be liable for failing for enforce any law. The Court finds this characterization premature. Therefore, the Court sustains City’s demurrer and grants Plaintiffs 20 days’ leave to amend their third cause of action for general negligence.
Plaintiffs’ Fourth Cause of Action for Dangerous Condition of Public Property
City argues that Plaintiffs fail to allege a dangerous condition existed or that their injuries were caused by the dangerous condition. City argues that Decedent was killed due to a third party’s illegal conduct, and the fact that it is foreseeable that some motorists and pedestrians will act negligently does not lead to public entity liability. It contends that without the criminal activity, there is nothing inherently dangerous about its property.
As stated above in connection with County’s demurrer, the Court finds the case of Swaner v. City of Santa Monica to be instructive on this issue. The Swaner court considered whether a beach was in a dangerous condition because the absence of a barrier or fence allowed for the foreseeable use of the beach by third persons who would not exercise due care. (Swaner, supra, 150 Cal.App.3d at p. 798.) The Swaner court held that racing on the beach may create a substantial risk of injury to foreseeable users of the beach even if those users exercise due care. (Id. at p. 806.) The Swaner court also considered a lack of a barrier constitutes a condition of property that “provide[d] a sufficient nexus between the condition of the property and the third party’s activity so as to defeat the demurrers.” (Id. at pp. 806-807.) Here too, the Court finds that Plaintiffs have alleged a “sufficient nexus” between the street racers and a condition of the property to allege a dangerous condition under Government Code section 835.
Although City relies on City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21 as a more recent case, the Court notes that this case was decided at the summary judgment stage where additional evidence was introduced, including undisputed evidence that the road was straight and level, with few intersections and no sight line obstructions. The court rejected the plaintiffs’ argument that the defendant city should have installed additional lighting because there was no showing that there were previous accidents caused by poor lighting and the court could not discern how much lighting of the roadway at dusk would have improved the ability to see oncoming racers. (Id. at p. 31.)
The Court additionally notes that like County, City also argues that it is immune to the extent Plaintiffs are alleging that it failed to provide police protection. The Court rejects this argument for the same reasons it rejected County’s contention.
Accordingly, the Court finds that Plaintiffs have sufficiently pled a cause of action for dangerous condition of public property. City’s demurrer to Plaintiffs’ fourth cause of action is OVERRULED.
Plaintiffs’ First and Fifth Causes of Action
Last, City argues that because Plaintiffs fail to allege an actionable tort cause of action, their wrongful death and survivor actions fail. As discussed above, the Court finds that Plaintiffs adequately allege a tort cause of action. Therefore, City’s demurrer to the First and Fifth Causes of Action is OVERRULED.
City’s Motion to Strike
City moves to strike Plaintiffs’ prayer for punitive damages. Plaintiffs assert the same arguments in opposition as they did in response to County’s motion. The Court GRANTS City’s motion for the same reasons articulated above.
County’s Demurrer is OVERRULED.
County’s Motion to strike is GRANTED.
City’s Demurrer is SUSTAINED with 20 days’ leave to amend as to Plaintiffs’ third cause of action and OVERRULED as to Plaintiffs’ first, fourth, and fifth causes of action.
City’s Motion to strike is GRANTED.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
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