Judge: Anne Hwang, Case: 22STCV11228, Date: 2023-11-20 Tentative Ruling

Case Number: 22STCV11228    Hearing Date: November 20, 2023    Dept: 32

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. 

TENTATIVE RULING

MOTION

On April 1, 2022, Plaintiff Daniel Garcia (Plaintiff) filed a complaint against City of South Gate, City of Los Angeles, County of Los Angeles, AML Trust, Armando Mendez, and Does 1 to 25 for injuries sustained by an uplifted sidewalk. On September 13, 2023, Defendant City of South Gate (Defendant) filed a demurrer to the complaint. (Jett Decl. ¶ 3.) Plaintiff agreed to file a first amended complaint (FAC) based on the demurrer and served it on Defendant. (Id. ¶ 4.) The hearing for the demurrer on the complaint was then taken off calendar. (Id.)

Defendant now demurs to the FAC arguing it contains an admission that precludes Plaintiff’s recovery. Defendant contends that Plaintiff fails to state facts to constitute a cause of action for dangerous condition of public property because the original complaint and FAC contain allegations that Plaintiff was riding a motorized scooter on the subject sidewalk, and thus was not using the property with due care in a foreseeable manner. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

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.) 

MEET AND CONFER

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).)

Defendant’s counsel, Frances Jett, submits a declaration that a meet and confer took place by telephone. (Jett Decl. ¶ 8.) Therefore, the meet and confer requirement is satisfied.

JUDICIAL NOTICE

Defendant’s request for judicial notice of Plaintiff’s Complaint and First Amended Complaint is granted. However, the Court notes that Plaintiff has not yet filed the FAC with the Court. Still, Plaintiff does not dispute that the FAC offered by Defendant is accurate and true. Therefore, the Court takes judicial notice of the FAC as part of the attachments to the demurrer. (Evid. Code § 452(d).)

ANALYSIS

Government Code section 835 states:¿“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either:¿ 

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or¿¿ 

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

The term “dangerous condition” means a “condition of property that creates a substantial (as distinguished from a minor,¿trivial¿or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it¿will be used.” (Gov. Code, § 830, subd. (a).)¿“A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care.¿Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.)¿“The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.”¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn. 5.) “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.”¿(Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810.)¿ 

“Although public entities may be held liable for injuries occurring to reasonably foreseeable users of the property, even when the property is used for a purpose for which it is not designed or which is illegal, liability may ensue only if the property creates a substantial risk of injury when it is used with due care.” (Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1466.)

In the FAC, Plaintiff states, under the first cause of action (not asserted against Defendant), that the injury occurred while he was “riding his motorized scooter on the sidewalk.” (FAC, 4.) Vehicle Code section 21235 states in pertinent part: “[t]he operator of a motorized scooter shall not do any of the following: . . . (g) Operate a motorized scooter upon a sidewalk, except as may be necessary to enter or leave adjacent property. (Veh. Code § 21235(g).)

Defendant argues that because Plaintiff alleges he was riding a motorized vehicle on the sidewalk, he was not using the property with due care or in a foreseeable manner. This argument is based on the conclusion that Plaintiff’s actions were illegal. In opposition, Plaintiff argues that the allegations alone do not foreclose the possibility that the exception applies: that he was using the scooter to enter or leave adjacent property. Defendant responds that the complaint alleges the conduct was on the sidewalk “abutting 8930 Hunt Avenue.” However, whether the location at issue abuts the street does not address whether the scooter was being operated as may be necessary to enter or leave adjacent property.

Even assuming that Plaintiff’s actions were illegal, here the allegation is that Plaintiff was riding a motorized scooter on the sidewalk when the front wheel hit an uplift in the sidewalk. This is unlike Schonfeldt, where a minor plaintiff jumped over a fence and ran across a freeway. (Schonfeldt, supra, 61 Cal.App.4th at 1468, see also Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1385 [no dangerous condition because the danger of riding a bicycle down a very steep, wet, grassy hill was obvious from the appearance of the property itself].) The danger is much less apparent. The Court cannot conclude as a matter of law that riding a scooter on a sidewalk (without further development of facts) constitutes a failure to exercise due care, or that such conduct is not reasonably foreseeable.

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to Plaintiff’s complaint. Plaintiff must file and serve the FAC within 10 days.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.