Judge Daniel S. Murphy, Case Number: 24STCV12477, Date: 2024-09-06 Tentative Ruling (2024)

Judge: Daniel S. Murphy, Case: 24STCV12477, Date: 2024-09-06 Tentative Ruling

Case Number: 24STCV12477 Hearing Date: September 6, 2024 Dept: 32

BACKGROUND

On May 17, 2024, Plaintiff MichaelButler filed this action against Defendant Los Angeles County MetropolitanTransit Authority, asserting causes of action for (1) negligence, (2) dangerouscondition of public property, (3) violation of the Unruh Civil Rights Act, (4)violation of the Disabled Persons Act, and (5) strict products liability.

Plaintiff alleges that he isdisabled and relies on a scooter or wheelchair for mobility and regularly ridesthe Los Angeles Metro for transportation. (Compl. ¶ 11.) On June 10, 2023,Plaintiff boarded a metro train in his wheelchair. (Id., ¶ 12.) Thetrain allegedly braked aggressively multiple times during the ride, and on onesuch occasion, this caused Plaintiff to fall over in his wheelchair, leading tosevere injuries. (Id., ¶ 13.) Several passengers allegedly attempted tocontact the train operator, who did not respond. (Id., ¶ 14.) At a laterstop, another operator appeared and quickly exited the train withoutacknowledging the passengers. (Ibid.) The train then continued asnormal. (Ibid.)

On August 9, 2024, Defendant filedthe instant demurrer and motion to strike against the complaint. Plaintifffiled his opposition on August 23, 2024. Defendant filed its reply on August29, 2024.

LEGAL STANDARD

A demurrer for sufficiency tests whetherthe complaint states a cause of action.(Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)Whenconsidering demurrers, courts read the allegations liberally and incontext.(Taylor v. City of LosAngeles 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 thepleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd.(a).)A demurrer tests the pleadings alone and not the evidence or otherextrinsic matters. (SKF Farms v. SuperiorCourt (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where thedefects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in ademurrer hearing is whether the complaint, as it stands, unconnected withextraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed torespond to a pleading, may serve and file a notice of motion to strike thewhole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) Thecourt may, upon a motion, or at any time in its discretion, and upon terms itdeems proper, strike (1) any irrelevant, false, or improper matter inserted inany pleading and (2) all or any part of any pleading not drawn or filed inconformity with the laws of this state, a court rule, or an order of the court.(Id., § 436.) The grounds for moving to strike must appear on the faceof the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion tostrike, the demurring or moving party is required to meet and confer with theparty who filed the pleading demurred to or the pleading that is subject to themotion to strike for the purposes of determining whether an agreement can bereached through a filing of an amended pleading that would resolve theobjections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.)The Court notes that Defendant has complied with the meet and conferrequirement. (See Liu Decl.)

DISCUSSION

I.Demurrer

a. Negligence (First COA)

“Except as otherwise provided by statute .. . [a] public entity is not liable for an injury, whether such injury arisesout of an act or omission of the public entity or a public employee or anyother person.” (Code Civ. Proc., § 815(a).) “[S]ection 815 abolishes common lawtort liability for public entities.” (Miklosy v. Regents of University ofCalifornia (2008) 44 Cal.4th 876, 899.) “In other words, direct tortliability of public entities must be based on a specific statute declaring themto be liable . . . .” (Eastburn v. Regional Fire Protection Authority(2003) 31 Cal.4th 1175, 1183.)

1. Mandatory Duty

One such statute is Government Codesection 815.6, which provides: “Wherea public entity is under a mandatory duty imposed by an enactment that isdesigned to protect against the risk of a particular kind of injury, the publicentity is liable for an injury of that kind proximately caused by its failureto discharge the duty unless the public entity establishes that it exercisedreasonable diligence to discharge the duty.” (Gov. Code, § 815.6.) “[A]pplicationof section 815.6 requires that the enactment at issue be obligatory, ratherthan merely discretionary or permissive, in its directions to the public entity.”(Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498.) “If astatute does not require that a ‘particular action’ be taken, Government Codesection 815.6 does not create the right to sue a public entity.” (Shamsianv. Department of Conservation (2006) 136 Cal.App.4th 621, 632.)

Plaintiff has not identified any statuteimposing a mandatory duty in relation to the operation of the train. Plaintiffargues that “Defendant was the operator of the subject metro rail and had aduty of care to operate the train in a safe, lawful, and responsible manner soas to not cause injury to others.” (Opp. 5:14-15.) However, this is notsufficient under section 815.6; instead, the statute must “require that a ‘particularaction’ be taken.” (See Shamsian, supra, 136 Cal.App.4th at p. 632.)Plaintiff has identified no statute mandating any “particular action” withregards to the operation of a metro train. Thus, liability for negligencecannot be based on section 815.6.

2. VicariousLiability

Another statute expressly imposingliability on public entities is Government Code section 815.2, which provides:“A public entity is liable for injury proximately caused by an act or omissionof an employee of the public entity within the scope of his employment if theact or omission would, apart from this section, have given rise to a cause ofaction against that employee.” (Gov. Code, § 815.2(a).) A government entitythat is immune from direct tort liability may nonetheless be liable vicariouslyfor the acts of its employees. (See Ross v. San Francisco Bay Area RapidTransit Dist. (2007) 146 Cal.App.4th 1507, 1514.) However, this also meansthat the entity is immune to the extent that its employees are immune. (Ibid.;Gov. Code, § 815.2(b).)

An individual’s liability for negligencedepends on the following elements: (1)a duty to exercise ordinary care; (2) breach of that duty; (3) causation; and(4) damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)Here, Plaintiff has alleged that the individual train operators and servicershad a duty to operate and maintain the train with due care, that they breachedthat duty, and that the breach caused Plaintiff’s damages. (See Compl. ¶¶ 13-28.)Defendant claims that there are insufficient facts explaining how itsemployees’ actions caused Plaintiff’s injuries. This overlooks the allegationsthat the train operators braked excessively, ignored passengers’ alerts duringthe incident, and failed to properly maintain the rail’s safety systems, amongother things. These allegations are sufficiently specific for pleadingpurposes.

Because thecomplaint adequately pleads negligence against the employees, it hasestablished a basis for vicarious liability under section 815.2. Thus,Plaintiff has articulated a statutory basis for the negligence claim. Thedemurrer is OVERRULED as to the first cause of action.

b.Dangerous Condition of Public Property (Second COA)

GovernmentCode section 835 is yet another statute that expressly provides for liabilityagainst a public entity. It provides as follows:

“Except as provided by statute, a public entity is liable for injurycaused by a dangerous condition of its property if the plaintiff establishesthat the property was in a dangerous condition at the time of the injury, thatthe injury was proximately caused by the dangerous condition, that thedangerous condition created a reasonably foreseeable risk of the kind of injurywhich was incurred, and that either:

(a) A negligent or wrongful act or omission of anemployee of the public entity within the scope of his employment created thedangerous condition; or

(b) The public entity had actual or constructivenotice of the dangerous condition under Section 835.2 a sufficient time priorto the injury to have taken measures to protect against the dangerouscondition.”

(Gov. Code, § 835.)

Here,Plaintiff has alleged that the metro rail was in a dangerous condition due todefective design and maintenance of the train, tracks, tunnel, signals,electrical systems, brakes, etc. (Compl. ¶ 31.) Plaintiff alleges that suchdefects were the result of the negligent acts of Defendant’s employees. (Id.,¶ 32.) Plaintiff also alleges that Defendant had sufficient notice of thedefects in time to take preventative measures before Plaintiff’s injury. (Id.,¶ 33.) Thus, Plaintiff has alleged sufficient facts to state a claim undersection 835.

Thedemurrer is OVERRULED as to the second cause of action.

c.Unruh Act (Third COA)

TheUnruh Civil Rights Act provides that “[a]ll persons within the jurisdiction ofthis state are free and equal, and no matter what their sex, race, color,religion, ancestry, national origin, disability, medical condition, geneticinformation, marital status, sexual orientation, citizenship, primary language,or immigration status are entitled to the full and equal accommodations,advantages, facilities, privileges, or services in all business establishmentsof every kind whatsoever.” (Civ. Code, § 51(b).)

Theterm “business establishments of every kind whatsoever” should be interpreted “inthe broadest sense reasonably possible.” (Burks v. Poppy Construction Co.(1962) 57 Cal.2d 463, 468.) Thus, “some entities that would not ordinarily ‘bethought of as … ‘traditional’ business establishment[s]’ should be consideredbusiness establishments for purposes of the Unruh Civil Rights Act.” (BrennonB. v. Superior Court (2022) 13 Cal.5th 662, 674.) “In parsing theboundaries of what constitutes a ‘business establishment,’ our cases havefocused on attributes—performing business functions, protecting economic value,operating as the functional equivalent of a commercial enterprise, etc.” (Id.at p. 681.) “[A]n entity must effectively operate as a business or a commercialenterprise” (ibid.) or “engage[] in behavior involving sufficient‘businesslike attributes’” (Carter v. City of Los Angeles (2014) 224Cal.App.4th 808, 825).

In Brennon,the Supreme Court held that “public school districts engaged in the work ofeducating students” did not constitute a “business establishment” under theUnruh Act. (Brennon, supra, 13 Cal.5th at p. 681.) “When acting in theircore educational capacity, public school districts do not perform ‘customarybusiness functions,’ nor is their ‘overall function… to protect andenhance … economic value.” (Ibid.) Similarly, “[a] state prison is not abusiness establishment for purposes of the act unless it engages in behaviorinvolving sufficient ‘businesslike attributes.’” (Carter, supra, 224Cal.App.4th at p. 825.)

Defendantrelies on Brennon for the proposition that public entities cannot be“business establishments” under the Unruh Act. However, Brennon makesclear that the analysis focuses on “attributes” such as “performing businessfunctions, protecting economic value, [or] operating as the functionalequivalent of a commercial enterprise,” not on the public or private status ofan entity. (See Brennan, supra, 13 Cal.5th at p. 681.) Brennandid not hold that all public entities fall outside the definition of “businessestablishment.” It merely held that school districts, “[w]hen acting in theircore educational capacity,” could not be considered business establishments. (Ibid.)Carter recognized that a public entity, such as a state prison, may beconsidered a business enterprise if it “engages in behavior involvingsufficient ‘businesslike attributes.’” (Carter, supra, 224 Cal.App.4th atp. 825.) Defendant cites no case where a public entity was deemed beyond thescope of the Unruh Act solely because it was a public entity.

Here,the operation of a metro line involves providing transportation services inexchange for monetary payment. In this way, Defendant “appears to have beenoperating in a capacity that is the functional equivalent of a commercialenterprise.” (See Warfield v. Peninsula Golf & Country Club (1995)10 Cal.4th 594, 622.) Defendant “furnish[es] goods, services or facilities toits clients, patrons or customers.” (See Stamps v. Superior Court (2006)136 Cal.App.4th 1441, 1449.) Brennon does not preclude application ofthe Unruh Act under the particular circ*mstances of this case.

Thedemurrer is OVERRULED as to the third cause of action.

d.Disabled Persons Act (Fourth COA)

“Individualswith disabilities or medical conditions have the same right as the generalpublic to the full and free use of the streets, highways, sidewalks, walkways,public buildings, medical facilities, including hospitals, clinics, andphysicians’ offices, public facilities, and other public places.” (Civ. Code, §54(a).)

Here,Plaintiff alleges that Defendant operated a public transport system but failedto provide safety accommodations for disabled passengers with wheelchairs.(Compl. ¶¶ 49-50.) This sufficiently establishes a violation of the DPA. Citingto federal cases interpreting the Americans with Disabilities Act, Defendantargues that Plaintiff has failed to allege deliberate indifference ordiscriminatory animus. (Mtn. 9:7-21.) However, the DPA is a California statute,and Defendant cites no authority imposing such a requirement under the DPA.

Thedemurrer is OVERRULED as to the fourth cause of action.

e.Strict Products Liability (Fifth COA)

1.No “Product”

“Productsliability is the name currently given to the area of the law involving theliability of those who supply goods or products for the use of others topurchasers, users, and bystanders for losses of various kinds resulting fromso-called defects in those products.” (Johnson v. United States Steel Corp.(2015) 240 Cal.App.4th 22, 30.) “A ‘product’ is broadly defined to include any ‘tangiblepersonal property distributed commercially for use or consumption.’” (Id.at p. 31.) “Generally, the imposition of strict liability hinges on the extentto which a party was ‘responsible for placing products in the stream ofcommerce.’” (Hernandezcueva v. E.F. Brady Co., Inc. (2015) 243Cal.App.4th 249, 258.) “However, products liability does not reach a party whois delivering a service to the consumer rather than supplying the product atissue.” (Sharufa v. Festival Fun Parks, LLC (2020) 49 Cal.App.5th 493,502.)

“Ina given transaction involving both products and services, liability will oftendepend upon the defendant’s role. For example, an airline passenger injuredbecause of a defect in the craft would have a strict liability claim againstthe manufacturer,” but “the airline operating the plane would be primarilyinvolved in providing a service, i.e., transportation. The airline is itselfthe end user of the product and imposition of strict liability would beinappropriate.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th248, 258.) In Ferrari, the plaintiff was injured while taking a guidedtour on a river raft and sued the tour company for products liability. (Id.at pp. 251-52.) The court held that the claim was invalid because “Defendantsdid not provide plaintiff with a raftfor her to use. They provided aservice, i.e., recreational raft transportation on the Colorado River.” (Id.at p. 259.) The raft “was merely an incident to this service.” (Ibid.)

Similarly,Defendant in this case primarily provided a transportation service, and thetrains were merely an incident to this service. Defendant was not “responsiblefor placing products in the stream of commerce.” (See Hernandezcueva, supra,243 Cal.App.4th at p. 258.) While Plaintiff may have a claim against themanufacturer or distributor of the trains, Defendant is neither. Instead,Defendant is an ultimate user like the airline or tour company described in Ferrari.

This case is notanalogous to Sharufa, supra, 49 Cal.App.5th at p. 503, where the court founda triable issue over whether a water park primarily provided a product (theslides) or a service (food, ride attendants, lifeguards, retail, etc.). Whereasguests visiting a waterpark arguably do so specifically to use the waterslides fortheir inherent entertainment value, passengers on a metro train primarily seekthe service of being moved from one place to another. The product (the train)is merely an incident to this service. Passengers ride the train to gosomewhere, not for the sake of the train itself. Unlike Ferrari, Sharufadid not involve a transportation service. Thus, Sharufa is not authorityfor whether products liability is viable against the Defendant in this case,who is a transportation provider, not an amusem*nt park operator. Ferrariis more on point and precludes products liability under the facts of this case.

BecauseDefendant did not provide a product, it cannot be held liable for productsliability.

2. Government Immunity

As establishedabove, government liability must be specifically enumerated in a statute.However, “[s]trict products liability is a unique, court-fashioned doctrine.” (Tolanv. State of California ex rel. Dept. of Transportation (1979) 100Cal.App.3d 980, 986-87.) “Hence, strict products liability has no place ingovernmental tort law, directly or by analogy.” (Id. at p. 987.) Plaintiff’sopposition does not respond to this point, much less cite any statute imposingstrict products liability on public entities. Therefore, the claim fails as amatter of law for this independent reason.

Thedemurrer is SUSTAINED as to the fifth cause of action.

II. Motion toStrike

a. Negligent Hiring

TheTort Claims Act prescribes two sources of liability for a public entity: (1)liability based on the entity’s own conduct; and (2) vicarious liability forthe acts of employees of the entity. (de Villers v. County of San Diego(2007) 156 Cal.App.4th 238, 251.) While a public entity is generally liable forany act of its employees that is within the course of employment, the entity’sliability for its own conduct is limited to that prescribed by statute. (Id.at pp. 251-52; Gov. Code, § 815.) A negligent hiring claim fails to the extentthat it seeks direct liability for an entity’s own negligence because there isno statutory basis for such liability. (Id. at pp. 252-53; Munoz v.City of Union City (2004) 120 Cal.App.4th 1077, 1111-14.)

However, apublic entity may be vicariously liable for the negligence of its supervisoryemployees in hiring and supervising incompetent staff. In C.A. v. William S.Hart Union High School Dist. (2012) 53 Cal.4th 861, 874-75, the court heldthat a school district could be vicariously liable for the negligence of itsadministrators in hiring and supervising a known child molester. Such a theorywas not possible in de Villers because “there was no evidence supportinga conclusion any County employee had undertaken a special protectiverelationship toward de Villers,” a husband whose wife murdered him using poisonshe stole from the county coroner’s office where she worked. (Id. at p.874.) In other words, “the toxicologist's supervisors and coworkers owed herhusband no duty to prevent his murder and could therefore not be personallyliable for his death.” (Ibid.) Without any such liability on theindividual employees, the County could not be vicariously liable. (Ibid.)

Bycontrast, the court in C.A. found that “school personnel ‘have a duty toprotect students from harm, which includes an obligation to exercise ordinarycare in hiring, training, supervising, and discharging school personnel.’” (C.A.,supra, 53 Cal.4th at p. 874.) It follows that when school personnelnegligently perform their duties, including by hiring incompetent teachers whoharm children, the school district is vicariously liable for such negligence. (Id.at pp. 874-75.)

Inthis case, Plaintiff has alleged that Defendant’s employees negligently hiredand supervised the staff who operated and maintained the metro rail system.(Compl. ¶ 20.) Unlike in de Villers, where employees of the countycoroner owed no duty to prevent a coworker from poisoning her husband,Defendant’s employees owe metro passengers a duty to ensure their safety whileriding, which arguably includes properly hiring and supervising the staff whooperate and maintain the trains. Assuming Defendant’s employees negligentlyhired and supervised incompetent staff, Defendant may be vicariously liable forthis negligence under Government Code section 815.2. Thus, for pleadingpurposes, the alleged facts support Defendant’s vicarious liability fornegligent hiring.

Themotion to strike is DENIED as to the allegations pertaining to negligent hiringand supervision.

b. Prejudgment Interest

“Aperson who is entitled to recover damages certain, or capable of being madecertain by calculation, and the right to recover which is vested in the personupon a particular day, is entitled also to recover interest thereon from thatday, except when the debtor is prevented by law, or by the act of the creditorfrom paying the debt. This section is applicable to recovery of damages andinterest from any debtor, including the state or any county, city, city andcounty, municipal corporation, public district, public agency, or any politicalsubdivision of the state.” (Civ. Code, § 3287(a), emphasis added.)

Defendantargues that prejudgment interest is unrecoverable against a public entity underCivil Code section 3291. Section 3291 prescribes prejudgment interest when aplaintiff makes a settlement offer that the defendant does not accept, and theplaintiff obtains a more favorable result at trial. Section 3291 does not applyto public entities. However, section 3287 expressly allows recovery againstpublic entities in situations where damages are certain or capable of beingmade certain. Thus, Plaintiff may allege prejudgment interest under section3287. Whether Plaintiff is ultimately entitled to any prejudgment interest isnot currently at issue.

CONCLUSION

Defendant’sdemurrer is SUSTAINED without leave to amend as to the fifth cause of actionand OVERRULED in all other respects. The motion to strike is DENIED.