Judge Anne Hwang, Case Number: 23STCV02808, Date: 2024-08-23 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 August 18, 2023, Plaintiff Jimmy Lindsey (“Plaintiff”) filed the operative first amended complaint (“FAC”) against Defendants Fred K. Boone, Chesley SB 9 Project, Emmanuel New Covenant, Chruches of Christ, a Corporation Sole, City of Los Angeles, City of Los Angeles Department of Animal Services, the Los Angeles Police Department, and Does 1 to 25 for injuries related to a dog attack.

Against Moving Defendants City of Los Angeles, City of Los Angeles Animal Services and the Los Angeles Police Department (“Defendants”), Plaintiff asserts causes of action for negligence; negligent hiring, supervision, training, and/or retention; public nuisance; negligent infliction of emotional distress; and Government Tort Liability.

Defendants now move for judgment on the pleadings, arguing that the FAC fails to state facts to constitute causes of action. Plaintiff opposes and Defendants reply.

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.¿ (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)¿ Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)¿

When the moving party is a defendant, he must demonstrate either of the following exist:¿¿

i. The court has no jurisdiction of the subject of the cause of action alleged in the complaint.¿¿

ii. The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B)(i)-(ii).)¿¿¿

“[I]n order for judicial notice to support a motion for judgment on the pleadings by negating an express allegation of the pleading, the notice must be of something that cannot reasonably be controverted…The same is true of evidentiary admissions or concessions.” (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.)¿¿¿

A motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)

The Declaration of Susan Mavian, Defendants’ counsel, states the following: “[o]n June 25, 2024, I contacted Plaintiffs’ counsel by via email to meet and confer and to discuss the basis for Defendants’ intended Motion for Judgment on the Pleadings. I also called counsel’s office on the same day. I have not heard back from counsel to date.” (Mavian Decl. ¶ 3.) Although Plaintiff argues that there were no further attempts to meet and confer, counsel provides no reason whatsoever for failing to respond. The meet and confer requirement has been met. The Court admonishes the parties to respond to opposing counsel in the future in order to narrow any disputes.

The Court, on its own, takes judicial notice of the fact that Defendants City of Los Angeles, City of Los Angeles Animal Services and the Los Angeles Police Department are public entities as defined by the California Government Code. (Gov. Code § 811.2 [“’Public entity includes . . . a county city, district, public authority, public agency, and any other political subdivision or public corporation in the State.”].)

Except as otherwise provided by statute, “[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.” (Gov. Code § 815(a).) “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457; Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 (emphasis in 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.)

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.)

Generally, one does not owe a duty to control the conduct of another or to warn another of third-party conduct or of a peril it has not created, absent a “special relationship.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128-29; Williams v. State of California (1983) 34 Cal.3d 18, 23.) “Such a duty may arise if ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’ [Citations.]” (Zelig, supra, 27 Cal.4th at 1129.)

Applying this principle, public entities are generally not liable for failing to protect individuals against crime. Similarly, law enforcement officers generally do not owe a legal duty to come to the aid of another person. (Zelig, supra, 27 Cal.4th at 1128. [“[P]ast cases establish that police officers and other public security officers, like other persons, generally may not be held liable in damages for failing to take affirmative steps to come to the aid of, or prevent an injury to, another person.”].) “Recovery has been denied . . . for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.” (Williams, supra, 34 Cal.3d at 25.)

However, “[l]iability may be imposed if an officer voluntarily assumes a duty to provide a particular level of protection, and then fails to do so [citations], or if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff. [Citations.]” (Zelig, supra, 27 Cal.4th at 1129.) Additionally, “the circumstance that an officer may have offered special protection on one occasion does not, by itself, give rise to a continuing special relationship and duty at a later date—or with other officers. [Citation.]” (Id. at 1129–30.)

Similarly, “[n]either a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” (Gov. Code § 845.)

Additionally, “[a] public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” (Gov. Code § 818.2.) Furthermore, “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code § 820.2.) Similarly, “[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Gov. Code § 815.2(b).)

Moreover, “[a] public entity [or public employee] is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.” (Gov Code §§ 818.6, 821.4.)

Here, the FAC generally alleges that on December 16, 2022, Plaintiff was attacked by dogs that resided at 5738 Chesley Avenue, Los Angeles and were owned by Fred K. Boone (“Boone”). (FAC ¶17-20, 22.) Against Moving Defendants, Plaintiff alleges that the Defendant public entities received numerous complaints about the subject dogs (that they were barking, loud, were unlicensed, and had potential dangerous propensities), yet failed to take action. (FAC ¶ 31.) Specifically, Plaintiff alleges that Defendant failed to inspect the property (which would have shown that the dogs could escape since the gate did not properly close), and failed to remove and impound the dogs. (FAC ¶¶ 34, 43.) Here, the FAC does not allege that the property where the dogs resided was owned by Defendants. (See FAC ¶ 18.) Therefore, statutory immunity applies to the claims that Defendants failed to inspect the property.

Plaintiff next alleges that Defendants were aware of “numerous violations under Los Angeles Municipal Code sections,” and therefore Defendants “had a mandatory duty to impound the dogs under the LAMC.” (Opposition at p. 4.) Plaintiff claims Defendant had a mandatory duty under Los Angeles Municipal Code section 53.34.4 to conduct a hearing to determine whether the dogs were a dangerous animal. This section states in relevant part: “The Department shall conduct a hearing to determine whether or not a dog or other animal confined or impounded pursuant to Section 53.34.2 is a dangerous animal.”[1]

However, regardless of whether Defendants had a mandatory duty to conduct a hearing, Plaintiffs do not establish that there was a mandatory duty to impound. (See Los Angeles Municipal Code section 53.34.2(a) [“The Department shall have the power to summarily and immediately impound a dog or other animal where there is evidence it has attacked, bitten or injured any human being or other animal pending any court or dog license or animal permit revocation proceeding arising from the attack, bite or injury; or to undertake a hearing pursuant to Section 53.34.2(a).”].) This section does not create a mandatory duty to impound, but rather provides the Department with the authority to impound in its discretion.[2] (See, e.g., Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498 [“First and foremost, application of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.”] [emphasis in original]). Therefore, the failure to conduct a hearing does not establish proximate cause. (See State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 355 [“The only mandatory duty established by the complaint’s allegations is the duty to use two evaluators; the details of the manner in which each evaluator conducts the review are discretionary, so long as they include the statutory criteria. Thus, no actionable breach of duty can be found in the single evaluator’s failure to conclude that Pitre was an SVP.”].)

Additionally, though Plaintiff cites Municipal Code section 53.05, he fails to show that the duty described in that section was triggered by the facts alleged here. Section 53.05 states in relevant part: “It shall be the duty of the General Manager or the General Manager’s authorized representatives to take up and impound in the City pound, and it shall be the duty of members of the Police Department on duty during the hours when the Municipal Pound is open, to take up and immediately deliver to the Department those animals which are authorized and directed to be taken up and impounded by this article or which are found or kept contrary to the provisions of this article.” (Los Angeles Municipal Code section 53.05.) Accordingly, this section refers to a duty to impound certain animals. Any allegation that the subject dogs were “authorized and directed” to be impounded, or were “found or kept contrary to the provisions of this article,” are not pled with sufficient particularity.[3]

Finally, though Plaintiff alleges that Defendants received complaints of the dogs (FAC ¶ 31), there is no Municipal Code section cited which creates a mandatory duty to investigate and act on those complaints.[4]

“Plaintiff claims that The City of Los Angeles, through its officers in the Department of animal services and through its police department, and through its statements, actions and deeds, as well as pursuant to statute, created and established a special relationship with Plaintiff and/or the public and duty which required that they take affirmative action to protect the Plaintiff from the very risk of harm and/or death, which he suffered on December 16, 2022. This special relationship of the Defendants to Plaintiff established a duty of reasonable care with regard to risks that arise within the scope of the relationship.”

The Court finds that the allegation of the special relationship between Defendants and Plaintiff is conclusory and contains no facts of conduct to create that relationship.

Finally, as for the negligence, negligent hiring, supervision, training, and/or retention, public nuisance, and negligent infliction of emotional distress causes of action, no statutory basis is alleged. Therefore, because no specific statute authorizes the causes of action, the motion is granted.

Therefore, Defendants’ motion for judgment on the pleadings is GRANTED with leave to amend.

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

[1] The Court notes that this section requires a hearing after a dog is impounded, which is not alleged to have occurred here.

[2] Plaintiff broadly argues that the word “shall” means that Defendant had a mandatory duty to impound. (Opposition at p. 5.) However, the word “shall” applies to “shall have the power.” The code section does not state “shall impound.”

[3] Although the FAC alleges that Defendants received complaints and went to the premises, the FAC does not allege that the dogs were authorized and directed to be impounded, or that Defendants found the dogs to be contrary to the provisions of the article. Accordingly, although Plaintiff argues that “once that determination has been made, there is no discretion as to what the Department of Animal Services must do under the Los Angeles City Municipal Code sections as written” (Opposition at p. 8.), Plaintiff never explains where the FAC alleges that the “determination has been made.”

[4] The Court has reviewed the other Municipal Code sections cited in the FAC, and finds they fail to set forth a relevant mandatory duty. (See FAC ¶ 58.) Generally, the code sections cited refer to duties of animal owners, or duties of certain departmental employees once certain condition precedents are established. However, those allegations are not sufficiently pled here.

DEPARTMENT	32
HEARING DATE	August 23, 2024
CASE NUMBER	23STCV02808
MOTION	Motion for Judgment on the Pleadings
MOVING PARTY	Defendants City of Los Angeles, City of Los Angeles Animal Services and the Los Angeles Police Department
OPPOSING PARTY	Plaintiff Jimmy Lindsey