notice of demurrer and demurrer of defendant cahill contractors llc to

Cal. Super. - 1st Dist.September 27, 2021

22847 1 NOTICE OF DEMURRER AND DEMURRER OF CAHILL CONTRACTORS LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 790 E. Colorado Boulevard Suite 600 Pasadena, CA 91101 Phone (626) 243-1100 Fax (626) 243-1111 Edward J. Riffle, Esq. (State Bar No. 193983) Taylor J. Pohle, Esq. (State Bar No. 299794) COLLINS + COLLINS LLP 790 E. Colorado Boulevard, Suite 600 Pasadena, CA 91101 (626) 243-1100 - FAX (626) 243-1111 Email: eriffle@ccllp.law Email: tpohle@ccllp.law Attorneys for Defendant CAHILL CONTRACTORS LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ANGELA STARKS, Plaintiff, vs. CITY AND COUNTY OF SAN FRANCISCO, CAHILL CONSTRUCTION MANAGEMENT LLC, and Does 1 to 10 inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. CGC-20-588155 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT CAHILL CONTRACTORS LLC TO COMPLAINT OF PLAINTIFF ANGELA STARKS [Filed concurrently with Memorandum of Points and Authorities; Declaration of Taylor J. Pohle, and Request for Judicial Notice] Date: August 17, 2021 Time: 9:30 a.m. Dept.: 302 Judge: Hon. Ethan P. Schulman Complaint Filed: 12/4/2020 Trial Date: None TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 17, 2021 at 9:30 a.m., or as soon thereafter as this matter may be heard in Department 302 of the San Francisco County Superior Court located at 400 McAllister Street, San Francisco CA 94102, Defendant Cahill Contractors LLC (“Cahill”) will and hereby does demur to Plaintiff Angela Starks’ Complaint, pursuant to Code of Civil Procedure § 430.10, (“Cahill Demurrer”). Cahill demurs to the Complaint on the following grounds: /// ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 07/06/2021 Clerk of the Court BY: EDNALEEN ALEGRE Deputy Clerk 22847 2 NOTICE OF DEMURRER AND DEMURRER OF CAHILL CONTRACTORS LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 790 E. Colorado Boulevard Suite 600 Pasadena, CA 91101 Phone (626) 243-1100 Fax (626) 243-1111 DEMURRER TO THE COMPLAINT’S FIRST CAUSE OF ACTION ENTITLED “NEGLIGENCE - SURVIVAL ACTION” PURSUANT TO CODE CIV. PROC. § 430.10(e) 1. Pursuant to Code of Civil Procedure § 430.10(e), Cahill demurs to the First Cause of Action entitled “Negligence - Survival Action” (“COA No. 1”) because Plaintiff Angela Starks does not have standing to bring COA No. 1 under Code of Civil Procedure § 377.34 against Cahill. The Complaint merely includes conclusory allegations and conclusions of law that Plaintiff Angela Starks is the alleged “successor of interest” to decedent Angelique Starks (“Decedent”). However, the Complaint excludes a Code of Civil Procedure § 377.32 declaration, as it must to sustain a survival cause of action. Moreover, the recent filing of the related case entitled Angela Johnson v. City and County of San Francisco, San Francisco Superior Court, Case No. CGC-21-592213 (“Johnson Action”) shows that, even if Plaintiff Angela Starks had filed a Code of Civil Procedure § 377.32 declaration, Decedent is succeeded by her mother, Angela Johnson. Angela Johnson would have priority over Plaintiff Angela Starks (alleged sister of decedent) to bring COA No. 1. Cahill’s Request for Judicial Notice (“RJN”) filed herewith provides the Court a copy of the complaint in the Johnson Action and a copy of Ms. Johnson’s Code of Civil Procedure § 377.32 declaration. 2. Even if Plaintiff Angela Starks had standing, Cahill further demurs to COA No. 1 pursuant to Code of Civil Procedure § 430.10(e) for failure to state a cause of action against Cahill because the Complaint excludes any factual allegations connecting Cahill with the alleged condition that the City and County of San Francisco allegedly presided over on or about April 21, 2020. Decedent allegedly died as a result of a motor vehicle accident at or around the intersection of Dakota Street and 25th Street (“Incident Location”). However, the Complaint omits any factual allegations tending to show that Cahill caused or contributed or presided over or created the alleged condition and omits any factual allegations connecting Cahill to the Incident Location. Thus, the Complaint omits facts establishing that Cahill owed Plaintiff or Decedent a duty of care, that Cahill breached any such duty, or that Cahill’s alleged breach was the legal cause of harm. /// /// /// 22847 3 NOTICE OF DEMURRER AND DEMURRER OF CAHILL CONTRACTORS LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 790 E. Colorado Boulevard Suite 600 Pasadena, CA 91101 Phone (626) 243-1100 Fax (626) 243-1111 DEMURRER TO THE COMPLAINT’S SECOND CAUSE OF ACTION ENTITLED “WRONGFUL DEATH - C.C.P. § 377.60” PURSUANT TO CODE CIV. PROC. § 430.10(e) 3. Pursuant to Code of Civil Procedure § 430.10(e), Cahill demurs to the Second Cause of Action entitled “Wrongful Death - C.C.P. § 377.60” (“COA No. 2”) because Plaintiff Angela Starks does not have standing to bring COA No. 2 under Code of Civil Procedure § 377.60 against Cahill. The Complaint merely includes conclusory allegations and conclusions of law that Plaintiff Angela Starks is the alleged “successor of interest” to decedent Angelique Starks. However, the Johnson Action shows that the Decedent is succeeded by her mother. Pursuant to the rules of intestate succession as referenced in Code of Civil Procedure § 377.60(a), Angela Johnson (alleged mother of decedent) would have priority over Angela Starks (alleged sister of decedent) to bring COA No. 2. 4. Even if Plaintiff Angela Starks had standing, Cahill further demurs to COA No. 2 pursuant to Code of Civil Procedure § 430.10(e) for failure to state a cause of action against Cahill because the Complaint excludes any factual allegations connecting Cahill with the alleged condition that the City and County of San Francisco allegedly presided over on or about April 21, 2020. Decedent Angelique Starks alleged died as a result of a motor vehicle accident at or around the Incident Location. However, the Complaint omits any factual allegations tending to show that Cahill caused or contributed or presided over or created the alleged condition and omits any factual allegations connecting Cahill to the Incident Location. Thus, the Complaint omits facts establishing that Cahill owed Plaintiff or Decedent a duty of care, that Cahill breached any such duty, or that Cahill’s alleged breach was the legal cause of harm. /// /// /// /// /// /// /// /// 22847 4 NOTICE OF DEMURRER AND DEMURRER OF CAHILL CONTRACTORS LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 790 E. Colorado Boulevard Suite 600 Pasadena, CA 91101 Phone (626) 243-1100 Fax (626) 243-1111 This Demurrer is based on this Notice of Demurrer, the Memorandum of Points and Authorities, Plaintiff’s Complaint filed December 4, 2020, Plaintiff’s Amendments to the Complaint, the Declaration of Taylor J. Pohle filed concurrently herewith, Cahill’s Request for Judicial Notice and any other papers on file herein, and upon any additional material as the Court may consider at the hearing on this matter. DATED: July 6, 2021 COLLINS + COLLINS LLP By: ________________________________ TAYLOR J. POHLE EDWARD J. RIFFLE Attorneys for Defendant CAHILL CONTRACTORS LLC 22847 5 NOTICE OF DEMURRER AND DEMURRER OF CAHILL CONTRACTORS LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 790 E. Colorado Boulevard Suite 600 Pasadena, CA 91101 Phone (626) 243-1100 Fax (626) 243-1111 PROOF OF SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of San Bernardino. ) I am employed in the County of San Bernardino. I am over the age of 18 and not a party to the within action. My business address is 10681 Foothill Boulevard, Suite 260, Rancho Cucamonga, California 91730. On this date, I served the foregoing document described as NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT CAHILL CONTRACTORS LLC TO COMPLAINT OF PLAINTIFF ANGELA STARKS on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTATCHED SERVICE LIST (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Rancho Cucamonga, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Rancho Cucamonga, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in Rancho Cucamonga, California. FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. (BY ELECTRONIC FILING AND/OR SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the attached service list. (ELECTRONIC SERVICE PER CODE CIV. PROC., § 1010.6) - By prior consent or request or as required by rules of court (Code Civ. Proc., § 1010.6 (amended Jan. 1, 2021); Code Civ. Proc., § 1013(g); Cal. Rules of Court, rule 2.251(a)). (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s). Executed on July 6, 2021 at Rancho Cucamonga, California. (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. DENISE WELCH dwelch@ccllp.law 22847 6 NOTICE OF DEMURRER AND DEMURRER OF CAHILL CONTRACTORS LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 790 E. Colorado Boulevard Suite 600 Pasadena, CA 91101 Phone (626) 243-1100 Fax (626) 243-1111 ANGELA STARKS v. CITY AND COUNTY OF SAN FRANCISCO, et al. San Francisco County Superior Court Case Number: CGC-20-588155 CCCLP File Number: 22847 SERVICE LIST Brian L. Larsen, Esq. Joseph Lee, Esq. Has S. Jawandha, Esq. LAW OFFICES OF BRIAN L. LARSEN 530 Jackson Street, Second Floor San Francisco, CA 94133 Tel: (415) 398-5000 blarsen5000@gmail.com ATTORNEYS FOR Plaintiff ANGELA STARKS Dennis J. Herrera,City Attorney Meredith B. Osborn, Chief Trial Deputy Sabrina M. Berdux, Deputy City Attorney Fox Plaza 1390 Market Street, Sixth Floor San Francisco, CA 94102-5408 Tel: (415) 554-3929 - Fax: (415) 554-3837 sabrina.m.berdux@sfcityatty.org ATTORNEYS FOR Defendant CITY AND COUNTY OF SAN FRANCISCO