Judge Anne Hwang, Case Number: 19STCV38052, Date: 2023-09-27 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On October 22, 2019, Plaintiffs Jason Abbott and Roxanne Abbott (“Plaintiffs”) filed a complaint against Defendants the City of Los Angeles, acting by and through the Department of Water and Power (“Defendant”), City of Bishop, and County of Inyo, and Does 1 to 45, for the death of their son, Dutch Benjamin Abbott (“Decedent”), after he came into contact with a carnivorous Naegleria fowleri amoeba in a man-made water pond. The complaint alleged three causes of action: (1) statutory liability/dangerous condition on public property; (2) statutory liability/ breach of mandatory duties; and (3) negligence.

On September 27, 2023, the Court granted Defendant’s motion for judgment on the pleadings as to Plaintiffs’ first two causes of action, with leave to amend. On November 27, 2023, Plaintiffs filed their first amended complaint (“FAC”).

Defendant now demurs to the first two causes of action in the FAC: (1) statutory liability/dangerous condition on public property; (2) statutory liability/ breach of mandatory duties. Defendant argues the causes of action fail to state facts sufficient to constitute a cause of action, that it is immune from suit, and that Plaintiffs are precluded from adding new theories that exceed the scope of their Tort Claim. Plaintiffs oppose and Defendant replies.

The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) However, to state a cause of action [for government tort liability] every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Defendant’s requests for judicial notice of Exhibits A, B, C, D, E, and F, and facts 1 through 22 are denied.

Plaintiffs’ requests for judicial notice regarding Exhibit A, Plaintiffs’ FAC, and Exhibit B, the Court’s September 27, 2023 Minute Order, are granted pursuant to Evidence Code section 452(d).

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Based on the Declaration of Keith E. Smith, it does not appear the parties met and conferred by telephone or in-person, although Defendant’s counsel made attempts to do so. (Smith Decl. ¶ 4.) Nevertheless, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41 (a)(4).)

The FAC alleges the following with regard to the first cause of action pursuant to Government Code section 835: the man-made water ponds (“Hot Ditch”) are owned, operated, and controlled by Defendant. (FAC ¶ 16.) The Hot Ditch was in a dangerous condition, including the presence of Naegleria fowleri, which created a substantial risk of injury when used with due care. (Id. ¶ 17.) Due to an infection caused by the Naegleria fowleri, Decedent is alleged to have died from primary amoebic meningoencephalitis. (Id. ¶ 15.) Defendant had actual or constructive knowledge of the dangerous condition and would have been discovered it by a reasonably adequate inspection system. (Id. ¶ 20-21.) Defendant failed to take appropriate corrective action, including failing to monitor the water, failing to train, and failing to warn. (Id. ¶ 22.) Defendant created or allowed to be created a dangerous condition by failing to follow mandatory duties under various statutes including 40 C.F.R. § 122.1 et seq., 33 U.S.C. §§ 1311, 1362, 1344, California Water Code sections 13376, 13260(a), and 22 C.C.R. § 65503 et seq. (Id. ¶ 24–29.) The dangerous conditions were directly attributable to negligent and wrongful acts of Defendant’s employees. (Id. ¶ 32.)

The FAC alleges in the second cause of action the same mandatory duties created by the statutes listed in the first cause of action.

Defendant argues that both causes of action are barred by Government Code section 855.4. The Court agrees and therefore does not reach Defendant’s other arguments that all causes of action are barred by Government Code section 831.2, or that Plaintiffs cannot allege duties not asserted in their tort claim notice.

“(a) Neither a public entity nor a public employee is liable for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee, whether or not such discretion be abused.

“(b) Neither a public entity nor a public employee is liable for an injury caused by an act or omission in carrying out with due care a decision described in subdivision (a).”

“By its plain language, section 855.4, subdivision (a) immunizes any ‘decision’ relating to the control of the communication of disease that is ‘the result of the discretion vested in the public entity.’ Such a ‘decision’ is immune, ‘whether or not such discretion [was] abused.’ Under subdivision (b), immunity attaches to any act or omission performed while carrying out such a decision, as long as the act or omission was performed with due care.” (City of Los Angeles v. Superior Court (2021) 62 Cal.App.5th 129, 144 (Wong) (citation omitted).) Section 855.4 applies “where a public entity's substandard maintenance of public property is the sole cause in fact of an individual[']s exposure to and contraction of a deadly disease.” (Wright v. City of Los Angeles (2001) 93 Cal.App.4th 683, 689.) A “decision not to take action against the spread of typhus on the public property adjacent from City Hall East was an exercise of discretion under section 855.4, subdivision (a).” (Greenwood v. City of Los Angeles (2023) 89 Cal.App.5th 851, 864.) “Where a public entity or public employee's decision to act or not act in response to a public health emergency is pursuant to a mandatory duty, such a decision would not be discretionary, but rather ministerial. [Citation omitted.] Under such circumstances, the policies underlying the need for governmental immunity would not apply, and the decision would not constitute an exercise of discretion.” (Greenwood, supra, 89 Cal.App.5th at 864.)

“[T]o determine whether an ‘exercise of discretion’ took place for the purposes of granting a public entity immunity under section 855.4, subdivision (a), [courts] should consider whether the challenged decision was one ‘expressly entrusted to a coordinate branch of government’ [Citation.]” (Id. at 863.) “One factor to consider in assessing [discretion] is whether the entity made the challenged decision based on a specific legal duty, in which case it is far less likely the entity will be acting pursuant to an ‘exercise of discretion.’” (Ibid.)

In order to allege a viable cause of action against Defendant, Plaintiffs were “required to allege facts showing that the City's actions did not fall within the statutory immunity in section 855.4.” (Wong, supra, 62 Cal.App.5th at 147.)[1]

As an initial matter, Plaintiffs argue that the allegation of the presence of Naegleria fowleri, which is alleged to cause an individual condition (primary amoebic meningoencephalitis or “PAM”) and not an outbreak of disease (see FAC ¶ 15), is sufficient to show that the Defendant’s actions do not fall within section 855.4. However, in Wright, the Court of Appeal for the Fourth District rejected the argument that section 855.4 was limited to situations where “a public entity acts in response to an outbreak of a disease which affects the community as a whole.” (Wright, supra, 93 Cal.App.4th at 689.) Wong agreed that section 855.4 also applies “where a public entity’s substandard maintenance of public property is the sole cause in fact of an individual[‘]s exposure to and contraction of a deadly disease.” (Wong, supra, 62 Cal.App.5th at 147 [quoting Wright].) Section 855.4 sets forth immunity for a decision relating to any act “to promote the public health of the community … by controlling the communication of disease within the community…” (Govt. Code § 855.4(a) [emphasis added].) Here, the FAC alleges the failure to address Naegleria fowleri, which caused a disease.[2] Plaintiffs do not explain why the presence of an amoeba which causes a disease is materially different from the presence of “germs, bacteria and viruses and the like, many of which are microscopic, and which may or may not be contained in saliva, animal droppings, or any multitude of other forms, upon the vast public property of this state.” (Wright, supra, 93 Cal.App.4th at 690.)

Plaintiffs’ primary argument is that the Court cannot conclude that the FAC alleges facts reflecting an exercise of discretion sufficient to sustain a demurrer based on immunity. However, the FAC does not allege any legal mandate that the LADWP take any particular course of action with regard to Naegleria fowleri. Instead, the FAC alleges the failure to regulate and treat the water at the Hot Ditch, the failure to warn, and the failure to otherwise protect against Naegleria fowleri (FAC ¶ 22(i)-(ix)), all of which have no direct nexus to the alleged mandatory duties set forth in the following paragraph. (See FAC ¶ 23.) The FAC does not allege that any of the various statutes and regulations require Defendant to test, detect, regulate, protect, warn, or do anything regarding Naegleria fowleri. (See FAC ¶¶ 23, 26.) The allegation that Defendant was required to apply for a proper permit is attenuated and unspecific. The FAC does not even allege that the permits have anything to do with Naegleria fowleri specifically. The issue is whether the LADWP had the discretion to do nothing with regard to Naegleria fowleri. The FAC does not set forth facts otherwise. (See FAC ¶ 24-25.)

Plaintiffs have not shown that the defects in the FAC can be cured. The demurrer is therefore sustained without leave to amend.

Accordingly, Defendant’s demurrer to the FAC is sustained without leave to amend.

Defendant shall give notice of the Court’s order and file a proof of service of such.

[1] A defendant may qualify for immunity under either section 855.4(a) or (b). (Greenwood, supra, 89 Cal.App.5th at 865.)

[2] Significantly, Plaintiffs’ original complaint alleged “Decedent died from Naegleria fowleri meningoencephalitis or primary amoebic meningoencephalitis (“PAM”), a disease of the central nervous system, due to an infection caused by Naegleria fowleri.” (Complaint ¶ 15.) Similarly, the exhibits attached to the FAC contain Decedent’s hospital records stating “Infectious Disease,” as well as Plaintiffs’ government claim that alleged that Naegleria fowleri was a disease of the central nervous system.

DEPT:	32
HEARING DATE:	January 30, 2024
CASE NUMBER:	19STCV38052
MOTIONS:	Demurrer to Plaintiffs’ First Amended Complaint
MOVING PARTY:	Defendant City of Los Angeles, acting by and through the Department of Water and Power
OPPOSING PARTY:	Plaintiffs Jason Abbott and Roxanne Abbott