Judge Audra Mori, Case 22STCV22018 2022-10-26 Tentative Ruling

Plaintiffs Derrick Norris, Gabriela Norris and Amaya Norris (collectively, “Plaintiffs”) filed this action against Defendant City of Los Angeles (“Defendant”) alleging a single cause of action for dangerous condition of public property. The complaint alleges that Plaintiffs were involved in a motor vehicle accident that occurred at the intersection of 76th Street and Figueroa Street in Los Angeles, California. Plaintiffs allege they proceeded through the intersection facing a green light, while another vehicle facing a flashing yellow signal did not stop or proceed with caution and collided into Plaintiffs’ vehicle. Plaintiffs allege the intersection was in a dangerous condition and created a hidden trap to drivers. Plaintiffs further allege that “Defendants failed to remedy the dangerous condition to discharge their mandatory duty as required by Government Code §815.6.” (Compl. ¶ 26.)

Defendant moves to strike the language that Defendant failed to remedy the dangerous condition pursuant to its mandatory duty required by Government Code § 815.6. Plaintiff opposes the motion. As of October 24, 2022, no reply has been received.

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (CCP § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

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.) 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.) “[S]ection 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” (Metcalf v. County of San Juaquin (2008) 42 Cal.4th 1121, 1129.)

Here, Defendant contends that based on the facts alleged in the complaint, the only cause of action permitted against Defendant is for dangerous condition of public property under Government Code § 835. Defendant argues that the reference to Government Code § 815.6 is irrelevant and inapplicable because Plaintiffs fail to allege facts supporting a mandatory duty on Defendant’s part, and Plaintiffs fail to identify the statute creating a mandatory duty.

In opposition, Plaintiffs state they are seeking relief pursuant to Government Code § 835, but Plaintiffs contend they are permitted to identify other statutes Defendant violated. Plaintiffs assert they are not seeking to recover under Government Code § 815.6, so Plaintiffs are not seeking recovery outside the scope of what is allowed.

Government Code § 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.” Government Code § 815.6 contains a three-pronged test for determining whether liability may be imposed on a public entity: (1) an enactment must impose a mandatory, not discretionary, duty; (2) the enactment must intend 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. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638-39.) Additionally, whether an enactment is intended to impose a mandatory duty is a question of law for the court. (Id.)

Plaintiffs admit that they are seeking relief solely pursuant to Government Code § 835, and thus, it is unclear what purpose the language, “Defendants failed to remedy the dangerous condition to discharge their mandatory duty as required by Government Code §815.6,” (Compl. ¶ 26), serves in the complaint.

Furthermore, as Defendant argues, Plaintiffs do not identify any statute creating a mandatory duty against Defendant, nor do Plaintiff allege any facts showing that Defendant violated such a duty. "Because recovery is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate." (Mittenhuber v. City of Redondo Beach (1983) 142 Cal. App. 3d 1.)

When a claim against a governmental entity is premised on the contention that the entity’s property was dangerous, § 835 is the exclusive remedy under which a plaintiff can pursue a claim. (See, e.g., Longfellow v. San Luis Obispo County (1983) 144 Cal.App.3d 379, 383 [“public entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but rather by the provisions in sections 830 to 835.4 of the Government Code.”].) The gravamen of Plaintiffs’ complaint against Defendant is that the subject intersection was in a dangerous condition at the time of the accident. The complaint expressly alleges Defendant’s property constituted a dangerous condition, and thus, Government Code § 835 sets out the exclusive conditions for Defendant’s liability. (Metcalf, 42 Cal.4th at 1129.)

Defendant’s motion to strike the relevant language and reference to Government Code § 815.6 from the complaint is granted.

The burden is on Plaintiff to show in what manner they can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) In this case, Plaintiffs do not request leave to amend the complaint or otherwise make any showing the above defect can be cured.

Hon. Audra Mori

Judge of the Superior Court