Judge: Anne Hwang, Case: 23STCV13569, Date: 2024-01-08 Tentative Ruling

Case Number: 23STCV13569    Hearing Date: January 8, 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 June 13, 2023, Plaintiff BNB Wholesale and Distribution, Inc. (Plaintiff) filed a complaint for negligence against Defendant City of Los Angeles (Defendant). Plaintiff alleges that it sustained property damage after a group of transients gathered near its property and started a fire. (Complaint ¶¶ 12–16.)  

Defendant now demurs to the complaint arguing that it fails to state a cause of action. No opposition was filed.

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, Carol Attarian, submits a proper declaration that a meet and confer took place by telephone on November 14, 2023. (Attarian Decl. ¶ 2.) Therefore, the meet and confer requirement is satisfied.

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). It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.)   

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.)  

 As an initial matter, the Court on its own motion takes judicial notice that Defendant is a public entity 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.”].)

Here, the complaint alleges a negligence cause of action without stating a specific statutory basis. Since Defendant is a public entity, all tort claims must be based on statute.

Additionally, if Plaintiff were to assert a claim under Government Code section 835, the Complaint pleads insufficient facts. 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.”¿¿ 

Moreover, “[i]t is settled law that a public entity is not liable for a dangerous condition of public property based on third-party conduct alone, whether that conduct is criminal or merely negligent.”  (State of California v. Superior Court (1995) 32 Cal.App.4th 325, 327.)     

“A public entity may be liable for a dangerous condition of public property even when the immediate cause of a plaintiff's injury is a third party's negligent or illegal act ... if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality. [Citation.] … ‘ “[T]hird party conduct by itself, unrelated to the condition of the property, does not constitute a ‘dangerous condition’ for which a public entity may be held liable.” ' [Citation.] There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff. [Citation.] ‘[P]ublic liability lies under [Government Code] section 835 only when a feature of the public property has “increased or intensified” the danger to users from third party conduct.’ [Citation.]” [Citation.]

(Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1187.) Accordingly, “ ‘third party conduct by itself, unrelated to the condition of the property, does not constitute a ‘dangerous condition’ for which a public entity may be held liable.’ [Citation.]”  (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1134.)  “[C]ourts have consistently refused to characterize harmful third party conduct as a dangerous condition —absent some concurrent contributing defect in the property itself.”  (Id. at 1135.)  

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.)

Here, the Complaint alleges:

“On June 12, 2022, at approximately 4:30 P.M., one or more transients, vagrants or other homeless individuals had gathered to the rear of BNB Wholesale and Distribution. Plaintiff had repeatedly informed Defendant CITY OF LOS ANGELES of such individuals [transients] gathering around this area, and each time Plaintiffs made such reports to Defendant, Defendant would not respond in an adequate or timely manner to address the issue(s). Shortly after arriving at the rear of the Property on June 12, 2022, one or more transients, vagrants or other homeless individuals started a fire at the rear of the Subject Property. The fire eventually spread to the interior of the Subject Property, destroying the entire inventory of Plaintiffs and severely damaging the structure of the Property.”  (Complaint ¶ 13–16.)

“Defendant had a duty to use reasonable care to prevent harm to others by ensuring that transients, vagrants or other homeless individuals were not allowed to reside in the subject area, start fires, use illegal drugs, and harass the law-abiding citizens of the area. Defendant breached such duty to Plaintiff by failing to enforce the existing laws concerning vagrancy by allowing transients, vagrants or other homeless individuals to reside in the subject area, start fires, use illegal drugs, and harass the law-abiding citizens of the area. Despite multiple complaints by Plaintiff, the CITY OF LOS ANGELES tacitly approved the complained of behavior. In addition, the Department of Sanitation, which is a subdivision of the CITY OF LOS ANGELES, failed to maintain the scheduled pickup of trash to the rear of the Subject Property which afforded transients, vagrants, and other homeless individuals, a readily available source of ignition material.”

(Complaint ¶¶ 21–24.)

Here, Plaintiff fails to allege that a physical condition of the public property contributed to the alleged damage. Instead, Plaintiff states facts that the group of transient individuals were responsible for starting the fire. Therefore, because there are no facts properly alleging a defect, the complaint fails to state a cause of action under section 835.

In addition, Plaintiff does not respond to Defendant’s argument regarding immunity from liability for failing to enforce a law. (Gov. Code § 818.2.)

CONCLUSION AND ORDER

Therefore, the Court sustains Defendant’s demurrer to Plaintiff’s complaint with leave to amend.

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