Judge: Anne Richardson, Case: 23STCV11072, Date: 2023-12-15 Tentative Ruling

Case Number: 23STCV11072    Hearing Date: December 15, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Genevieve H. Wong (Wong) sues Defendant the City of Los Angeles (the City) and Does 1 through 40 pursuant to a May 16, 2023 Complaint alleging claims of (1) Inverse Condemnation, (2) Dangerous Condition of Public Property, (3) Trespass, and (4) Nuisance.

The claims arise from allegations that Plaintiff has owned, possessed, and resided at 2057 N. Sunset Plaza Drive, Los Angeles, California 90069 (the Property) and that the City owned, constructed, operated, or maintained Sunset Plaza Drive generally. The Complaint alleges that the Property has been destabilized, damaged, and taken by continuous water drainage, intrusion, landsliding, subsidence, erosion, debris flow, and other earth movement caused by a public project, namely the construction and maintenance of Sunset Plaza Drive. Specifically, the Complaint alleges that Sunset Plaza Drive collects and diverts drainage from “a large watershed area to the Wong Property” and that the City’s street and curbs carry storm water to the Wong Property, which, during heavy rain, causes the drainage from Sunset Plaza Drive to converge in a whirlpool that attacks the Wong Property with violent ferocity, putting Plaintiff Wong at risk of her safety every time it rains. The Complaint also alleges that the water drainage has destabilized and damaged the Wong Property and is a substantial contributing cause of water intrusion, landsliding, subsidence, erosion, debris flow, and other earth movement at the Wong Property, resulting in severe damage to the Wong Property, including but not limited to undermining the residence on the Wong Property, continuous flooding, and the cracking, settlement, and tilting of the improvements on the Wong Property, as well as creating a large erosion gully on the Wong Property and damaging the foundation of Plaintiff Wong’s residence. The Complaint alleges that these circumstances have resulted in a taking of the Wong Property, as well as damages, which include but are not limited to: a substantially diminished value of the Wong Property; reduced or destroyed safety and marketability of the Wong Property; the expense of stabilizing the landsliding and erosion on the Wong Property; out-of-pocket costs to attempt to mitigate the damage and repair improvements on the Wong Property; costs of relocation, temporary housing, storage, and increased insurance premiums; costs for engineers and geologists to analyze the earth movement danger; and the expense of attorneys and expert consultants to bring this lawsuit.

On August 7, 2023, the City demurred to the Complaint’s second and third causes of action based on sufficiency of pleading. The demurrer was set for hearing on November 6, 2023.

On October 18, 2023, Plaintiff Wong filed a stipulation by the parties to continue the hearing on the demurrer.

On October 19, 2023, the Court signed the stipulation, continuing the hearing on the City’s demurrer to December 15, 2023.

On December 4, 2023, Plaintiff Wong opposed the demurrer.

On December 8, 2023, the City replied to the opposition.

The City’s demurrer is now before the Court.

Demurrer

Demurrer Sufficiency Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device 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.) To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) Thus, “[t]o survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

I.

Complaint, Second and Third Causes of Action [Dangerous Condition on Public Property and Trespass]: SUSTAINED, with leave to amend.

The City demurs to the Complaint’s second and third causes of action on the ground that, because the City is a public entity, the Dangerous Condition on Public Property and Trespass claims must, pursuant to Government Code sections 815 and 815.6, be alleged pursuant to a specific statute or regulation creating a mandatory duty to avoid the harm alleged, which these claims fail to do. (Demurrer, pp. 5-9.)

In opposition, Plaintiff Wong argues that the Dangerous Condition on Public Property claim need not satisfy Government Code section 815.6 because it relies on Government Code section 835, foreclosing the need to satisfy the requirements of section 815.6. Plaintiff Wong also argues that her Trespass claim relies on constitutional inverse condemnation grounds, for which reason the claim lies outside of the Government Claims Act (GCA)—including Government Code section 815.6. (Opp’n, pp. 2-3, 4-10.)

In reply, the City argues that a trespass claim is a tort claim under cited authority, for which reason the third cause of action needs to rely on a specific statute, which it fails to do. The City also argues that the Dangerous Condition on Public Property claim must similarly rely on statutory authority to be sufficiently stated against a public entity and that Plaintiff’s four authorities to the contrary are inapposite.

A. Dangerous Condition on Public Property

The Court finds in favor of the City.

Nowhere in the Complaint is Government Code section 835 mentioned. (See Complaint, ¶¶ 1-33 [only citing Code Civ. Proc., § 1036, Civ. Code, §§ 3479-3503, and Gov. Code, § 900, et al.].) The Court therefore need not address Government Code section 835 insofar as it is not presently pleaded as a statutory authority under which any claim is being brought.

As pleaded, therefore, the Court agrees that the Dangerous Condition on Public Property claim does not rely on a statutory authority to allege liability against the City, a public entity that can only be held liable in conformity with the GCA, including Government Code section 815. That statute provides that “[e]xcept as otherwise provided by statute,” “(a) [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, subd. (a).) A review of the second cause of action fails to show such a statute. (Complaint, ¶¶ 1-13 [incorporated allegations], 14-21 [second cause of action].)

The City’s demurrer is thus SUSTAINED as to the Complaint’s second cause of action, with leave to amend.

B. Trespass

The Court finds in favor of the City.

Trespass is a common law cause of action. (See Gallin v. Poulou (1956) 140 Cal.App.2d 638, 641; see also Odello Bros v. County of Monterrey (1998) 63 Cal.App.4th 778, 793 [“Unlike the inverse condemnation claim, which is based upon the Constitution and therefore not subject to the immunities set forth within section 820.2, appellants’ trespass cause of action is a tort claim”].) Neither is trespass codified in a civil statute. Thus, because the City is a public entity, it is immune from plaintiff’s trespass cause of action provided that the claim does not rely on supporting statutory authority. (See Gov. Code § 815, subd. (a).) The Complaint fails to allege such statutory authority, which results in the third cause of action being insufficiently alleged.

The City’s demurrer is thus SUSTAINED as to the Complaint’s third cause of action, with leave to amend. 

Conclusion

Demurrer by Defendant City of Los Angeles to Complaint is SUSTAINED, with leave to amend. Plaintiff shall file a First Amended Complaint within 20 calendar days.