Judge: Anne Hwang, Case: 22STCV35702, Date: 2023-10-27 Tentative Ruling

Case Number: 22STCV35702    Hearing Date: March 7, 2024    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 November 10, 2022, Plaintiff James Ellis (“Plaintiff”) filed a complaint against Defendants AIDS Healthcare Foundation (“AHF”) and Does 1 to 30 for negligence and premises liability. Plaintiff alleges that he rented a unit at the Madison Hotel, owned by AHF, and that Defendant failed to respond to warnings about a violent tenant who later shot Plaintiff on July 26, 2022. (Complaint ¶ 42.) ¿ 

            On November 8, 2023, AHF filed a cross complaint against County of Los Angeles, County of Los Angeles’ Sheriff’s Department, Omar Deayon, and Does 1 to 10 for failure to perform a mandatory duty and equitable indemnity. AHF alleges that it obtained a writ of possession against the tenant who shot Plaintiff, Omar Deayon, one month before the shooting. (Cross Complaint ¶ 13.) However, the writ contained a clerical error. AHF then corrected the writ and delivered it to the Sheriff’s Department three weeks before the shooting. (Id.) AHF alleges that the Sheriff’s Department “had been informed, or should have known, that Mr. Deayon had a recent history of violent or threatening behavior at the Madison and needed to be removed from the Madison, for the sake of the safety of other people there.” (Id. ¶ 14.)

            County of Los Angeles (also sued erroneously as County of Los Angeles’ Sheriff’s Department) (“County”), now demurs to the cross complaint arguing it fails to state a claim.  Specifically, County argues that AHF fails to allege a mandatory duty, that it is protected by the litigation privilege under Civil Code section 47, and that the pleading is uncertain. AHF opposes and County replies.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  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.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

            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).  

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).)

According to the Declaration of Rina M. Mathevosian, it appears the parties have met and conferred by telephone prior to bringing this demurrer. (See Mathevosian Decl. ¶ 2.)

JUDICIAL NOTICE

The Court grants County’s request for judicial notice of exhibits 1, 2, 3. (Evid. Code § 452(d).)

The Court denies AHF’s request for judicial notice of exhibit 1, 3 but takes judicial notice of exhibit 2 insofar as they are court records.

ANALYSIS

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Consequently, “public entities may be liable only if a statute declares them to be liable.” (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 (emphasis in the original).

Moreover, 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.) “Duty cannot be alleged simply by stating ‘defendant had a duty under the law’; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. [Citations.] Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Id.)

Section 815.6

Government Code section 815.6 provides: “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” Therefore, “[t]hree requirements must be met before governmental entity liability may be imposed under Government Code section 815.6:(1) an enactment must impose a mandatory duty; (2) the enactment must be meant to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.” (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1215.)

Whether an enactment creates a mandatory duty is a question of law. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.) “[S]ection 815.6 requires the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ‘one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.’ [Citation.] Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment ‘confers some benefit’ on the class to which plaintiff belongs is not enough; if the benefit is ‘incidental’ to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6.” (Ibid.)

Additionally, the first prong of the statute is construed strictly, “finding a mandatory duty only if the enactment ‘affirmatively imposes the duty and provides implementing guidelines.’” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.) The enactment’s language is the most important guide to determine legislative intent, but “there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity's or officer's exercise of discretion.” (Haggis, supra, 22 Cal.4th at 499.)

Analysis

Here, the Court has taken judicial notice of a writ of possession dated July 7, 2022, as to Omar Deayon, 423 E. 7^th Street, Unit 325, Los Angeles CA 90014. (Mathevosian Decl., Exh. 1.) A sheriff attempted to execute the writ on July 26, 2022 and July 27, 2022, but was informed by the property manager that the wrong unit number was on the writ. (Id., Exh. 2.) County argues and AHF admits that the unit address on the writ of possession was incorrect. As a result, County argues that the Sheriff’s Department is not liable since the shooting occurred on July 26, 2022, and therefore, it could not have executed the writ in time to prevent it.

In response, AHF argues that County was dilatory in not attempting to execute the writ sooner, waiting 19 days after the writ was obtained. However, AHF does not explain what mandatory duty was breached when the writ on which AHF relies is defective. All of the statutes cited by AHF assume a proper writ pursuant to which County can act. (Opposition at p. 8.) AHF instead argues that the defects are clerical errors, and the eviction paperwork contained the correct unit number. (Opposition at p. 11.) However, AHF provides no argument for its proposition that County had a duty to look beyond the actual writ issued by the court, and to instead rely on the underlying documents submitted in support thereof. Accordingly, AHF provides no argument for why doing “nothing with the writ of possession for 19 days” would establish a breach of mandatory duty.[1] (Opposition at p. 12.)

CONCLUSION AND ORDER

Therefore, the Court SUSTAINS County’s demurrer to AHF’s cross complaint without leave to amend.

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