reply of cahill contractors llc in support of its demurrer to the comp

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

22847 1 REPLY OF CAHILL CONTRACTORS LLC IN SUPPORT OF DEMURRER 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 REPLY OF CAHILL CONTRACTORS LLC IN SUPPORT OF ITS DEMURRER TO THE COMPLAINT OF PLAINTIFF ANGELA STARKS Complaint Filed: 12/04/2020 Trial Date: None Date: August 17, 2021 Time: 9:30 a.m. Dept.: 302 Judge: Hon. Ethan P. Schulman I. INTRODUCTION The opposition of Plaintiff Angela Starks shows that this Court should sustain the demurrer of Cahill Contractors LLC (“Cahill”). It is undisputed that Plaintiff has not filed a declaration pursuant to Code of Civil Procedure § 377.32, which is required to sustain a survival action. It is undisputed that the Complaint excludes factual allegations tending to show that Plaintiff (the Decedent’s alleged “immediate sister”) has priority over the plaintiff in the Angela Johnson matter. Plaintiff admits that the Complaint’s allegations are not “a model of clarity.” While Plaintiff’s attorneys ask this Court to allow Plaintiff leave to amend because they have lost contact with the Plaintiff, the opposition does not show how Plaintiff could or would cure the undisputed deficiencies. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 08/10/2021 Clerk of the Court BY: CAROL BALISTRERI Deputy Clerk 22847 2 REPLY OF CAHILL CONTRACTORS LLC IN SUPPORT OF DEMURRER 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 II. LEGAL ARGUMENT a. The First Cause of Action - “Survival Action” - Is Subject to Demurrer Because Plaintiff Has Not Filed a CCP § 377.32 Declaration The opposition does not meaningfully address Plaintiff’s failure to file a declaration pursuant to Code of Civil Procedure § 377.32, other than to say that Plaintiff’s attorneys have lost contact with their client. [Opposition pp. 2:19-23, 6:4-11.] Plaintiff’s attorneys argue that Plaintiff “may” be able to submit a declaration. [Id. at p. 6:6-9.] It was not until July 20, 2019 - almost 8 months after filing this action on December 4, 2020 - that Plaintiff’s attorneys notified the Court that they had lost contact with Plaintiff. [See, Docket 07/20/21.] Plaintiff’s attorneys and Plaintiff appear to have had ample time to have filed a Code of Civil Procedure § 377.32 declaration. But Plaintiff did not do so. Instead, Plaintiff commenced this action without executing the necessary affidavit. [Code Civ. Proc. § 377.32(a).] Plaintiff’s attorneys apparently do not know whether Plaintiff can truthfully execute the necessary affidavit. Thus, the survival cause of action (First Cause of Action) is subject to demurrer. b. The Second Cause of Action - “Wrongful Death” - Is Subject to Demurrer Because the Complaint Excludes Factual Allegations as to Standing The opposition attacks Cahill’s request for judicial notice as to the Angela Johnson matter, but does not meaningfully dispute that the Complaint omits factual allegations tending to show that Plaintiff Angela Starks has standing to maintain a wrongful death action. On this point, the Complaint alleged in conclusory fashion: Plaintiff is the decedent’s “successor in interest.” [Complaint ¶¶ 3, 11, 16.] However, conclusions of fact and law must be disregarded on a demurrer. [C.R. v. Tenet Healthcare Corp., (2009) 169 Cal.App.4th, 1094, 1102.] Merely stating that Plaintiff is the “successor of interest” is a conclusion of fact and law. The Complaint excludes factual allegations demonstrating that Plaintiff is an heir with priority, which is necessary to have standing to bring a wrongful death cause of action. [Code Civ. Proc. § 377.60.] Wrongful death plaintiffs must plead standing. [Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783.] Here, Plaintiff alleges only that she is the “immediate sibling” of the decedent. [Complaint ¶¶ 3, 11, 16.] Pursuant to Code of Civil Procedure § 377.60, all of the following persons would have priority over Plaintiff (Decedent’s alleged sibling) to bring a wrongful death action: a surviving spouse, a domestic partner, children, grandchildren. The Complaint excludes any allegations about the existence of any of these relatives. 22847 3 REPLY OF CAHILL CONTRACTORS LLC IN SUPPORT OF DEMURRER 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 Facts not alleged are presumed not to exist for purposes of demurrer. [C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055.] c. The Complaint is Subject to Demurrer as to Cahill Because There are No Factual Allegations Linking Cahill to the Incident, to the Incident Location, or the Alleged Condition The opposition argues that the Complaint is “adequately pled” and that vague allegations (which Plaintiff’s attorneys admit are “not a model of clarity”) are sufficient “in the context of the entire Complaint.” [Opposition pp. 2:10-1.8.] Plaintiff’s focuses the Court’s attention on the following allegation: “Defendant, and each of them, in doing the acts and/or omissions described above, did not use that degree of reasonable care so as to prevent harm from befalling decedent Angelique Starks.” [Complaint ¶ 12 (Emphasis Added).] However, there are no “acts and/or omissions” attributed to Cahill in the paragraphs preceding this allegation. [Complaint ¶¶ 1-11.] At best, the Complaint alleges that the factiously named defendants (including Cahill who was identified as “Doe 1”) were “responsible in some manner for the occurrences herein alleged.” [Complaint ¶ 4.] This is insufficient. There is no allegation that Cahill owned, controlled, designed, operated, or was in any way present at the scene of the Incident. Complaints must include a statement of facts. [Code Civ. Proc. § 425.10.] Stating that Cahill was “responsible in some manner” is not a statement of facts, is insufficient, and does not (as Plaintiff’s attorneys alleged) satisfy California Civil Jury Instruction (“CACI 400”). Therefore, even if Plaintiff had standing, the Complaint is deficient. III. CONCLUSION Plaintiff’s attorneys’ inability to contact Plaintiff should not be a basis on which to overrule Cahill’s demurrer. The Complaint’s allegations do not state viable claims against Cahill because Plaintiff has neither established standing nor that Cahill is linked to the Decedent’s death. This Court should sustain Cahill’s demurrer pursuant to Code of Civil Procedure § 430.10. DATED: August 10, 2021 COLLINS + COLLINS LLP By: ________________________________ TAYLOR J. POHLE EDWARD J. RIFFLE Attorneys for Defendant CAHILL CONTRACTORS LLC 22847 4 REPLY OF CAHILL CONTRACTORS LLC IN SUPPORT OF DEMURRER 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 REPLY OF CAHILL CONTRACTORS LLC IN SUPPORT OF ITS DEMURRER TO THE 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 August 10, 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 5 REPLY OF CAHILL CONTRACTORS LLC IN SUPPORT OF DEMURRER 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. Marven Masihi, Esq. LAW OFFICES OF BRIAN L. LARSEN 530 Jackson Street, Second Floor San Francisco, CA 94133 Tel: (415) 398-5000 brian@brianlarsenlaw.com joseph@brianlarsenlaw.com marven@brianlarsenlaw.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