Judge Audra Mori, Case 22STCV29995 2022-12-16 Tentative Ruling

Plaintiff Fabian Sanchez, a minor individual by and through his guardian ad litem, Juliana Luevano, filed this action against defendant Los Angeles Unified School District, Olive Vista Middle School, Janelle Branning (“Branning”), Jona Than Ochoa (“Ochoa”), and Filiberto Alaniz (“Alaniz”) for damages relating to a dog attack that occurred at Olive Vista Middle School, which is within the Los Angeles Unified School District. Plaintiff’s complaint purports to assert causes of action for (1) negligence, (2) premises liability, (3) negligent supervision, (4) negligent infliction of emotional distress, and (5) punitive damages.

Defendant Los Angeles Unified School District (“Defendant”), erroneously sued as Los Angeles Unified School District, a government entity and Olive Vista Middle School, now demurs to the complaint arguing that the second cause of action for premises liability fails to state sufficient facts to constitute a claim against it. Plaintiff opposes the demurrer, and Defendant filed a reply.[1]

Defendant argues that the second cause of action for premises liability fails to allege a statutory basis for liability against Defendant, which is a public entity, and that the complaint fails to establish that an alleged dangerous condition existed at the property.

In opposition, Plaintiff contends that the second cause of action states a claim upon which relief may be granted, either on the theory of a dangerous condition of public property or breach of a duty voluntarily assumed by Defendant. Plaintiff argues that Defendant is liable for not removing the dog, Chopper, from the school grounds or having sufficient safeguards to prevent Chopper from freely roaming the school grounds. Further, Plaintiff asserts that Defendant voluntarily undertook to protect its students from Chopper but did so negligently.

In reply, Defendant again argues that the second cause of action lacks any statutory basis under which Defendant can be held liable, and Defendant argues that the complaint fails to allege any physical condition in Defendant’s property that could be a basis for a premises liability claim. Additionally, Defendant contends that Plaintiff’s arguments concerning a negligent undertaking claim fail because Plaintiff does not identify any statute under which Defendant can be held liable for such a claim, and that the complaint does not plead the required elements to put Defendant on notice of a negligent undertaking cause of action against it.

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). (CCP §§ 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.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Defendant fulfilled this requirement prior to filing the demurrer. (Demurrer Careli, IV Decl. ¶ 2.)

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.) 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 established that there is no liability for California governmental entities in the absence of an express statute or constitutional provision creating or accepting liability. (Tolan v. State of California (1979) 100 Cal.App.3rd 980, 986.) 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.)

6. On or about February 14, 2022, at approximately 7:30 a.m. to 7:45 a.m., PLAINTIFF was patiently waiting outside of OLIVE VISTA to be admitted into the then locked school grounds (COVID-protocol) when he was viciously attacked by a fully grown German Shepard named "Chopper." Chopper, who was roaming the school grounds unattended, rushed PLAINTIFF and knocked PLAINTIFF down to the ground. Chopper lunged at the vulnerable eleven (11) year old PLAINTIFF's face and head relentlessly. From the ground, PLAINTIFF put his arms up in defense to protect his face against Chopper's strikes.

7. While PLAINTIFF fended off the attack, an OLIVE VISTA staff member responded to the incident by closing a gate between herself and Chopper to prevent the dog from turning his attention to her.

21. Defendants LOS ANGELES UNIFIED SCHOOL DISTRICT and OLIVE VISTA MIDDLE SCHOOL, and Does 10 - 15, inclusive, owned the OLIVE VISTA MIDDLE SCHOOL and premises outside of which the attack took place, with the entrance gates to the school locked, even though Defendant, and each of them, knew that one week prior, and at other times as well, the dog known as Chopper had bitten another student and that school personnel had filed complaints with the Los Angeles Department of Animal Control. As a result of the dangerous condition of governmental property, PLAINTIF [sic] was injured and damaged as alleged herein. Defendants, and each of them, had actual notice of the existence of the dangerous condition in sufficient time prior to the injury to have corrected it.

The complaint, thus, alleges that Chopper attacked Plaintiff as Plaintiff was awaiting to be admitted into Defendant’s locked school, and that as a result of a “dangerous condition of governmental property,” Plaintiff was injured.

However, the complaint fails to identify a statutory basis of liability for the second cause of action as to Defendant. Plaintiff is incorrect that Plaintiff is not required to allege a statutory basis against Defendant, which the complaint alleges is a government entity. (Searcy, 177 Cal.App.3d at 802.) There is no common law tort liability for public entities in California, including for premises liability. (See Becerra, 68 Cal.App.4th at 1457.)

Because the complaint does not identify any statutory duty owed by Defendant to Plaintiff in the second cause of action, the premises liability claim fails to state a cause of action against Defendant.

Furthermore, as to Plaintiff’s argument that the second cause of action states a claim based on a dangerous condition, Government Code § 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 that 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.

“[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.” (Per Metcalf v. County of San Juaquin (2008) 42 Cal.4th 1121, 1129.) “To state a cause of action against a public entity under section 835, a plaintiff must plead: (1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.) “The limited and statutory nature of governmental liability mandates that claims against public entities be specifically pleaded. Accordingly, a claim alleging a dangerous condition may not rely on generalized allegations but must specify in what manner the condition constituted a dangerous condition.” (Id. [internal citation omitted].)

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 where 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.) [C]ourts have consistently refused to characterize harmful third party conduct as a dangerous condition —absent some concurrent contributing defect in the property itself.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1135.)

In this case, the complaint merely alleges in a conclusory manner that “[a]s a result of the dangerous condition of governmental property,” Plaintiff was injured. (Compl. at ¶ 21.) The complaint does not identify what the alleged dangerous condition on Defendant’s property was, nor does it allege with any particularity or specificity what factors or conditions made Defendant’s property dangerous. The premises liability claim, therefore, fails to plead a claim for dangerous condition of public property with the requisite specificity.

Plaintiff relies on paragraphs 6, 10-11, and 13 in arguing that the complaint alleges Defendant’s school was in a dangerous condition because these paragraphs demonstrate that Defendant knew the dangerous propensity of Chopper, who was known to roam the school grounds. However, the complaint does not allege that any physical defect on Defendant’s property increased or contributed to Plaintiff’s injuries.

Lastly, Plaintiff argues that even if the premises liability claim was not the cause of action Plaintiff intended to allege, it is sufficient to state a negligent undertaking claim against Defendant. As stated above, “in California, ‘all government tort liability must be based on statute [citation].’ [Citation.]” (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932; see also Gov. Code § 815(a).)

Further, “To establish a duty of care to a third person based on the negligent undertaking doctrine, a plaintiff must show: (1) the defendant undertook to render services to another; (2) the services were of the kind the defendant should have recognized as necessary for the protection of third persons; and (3) either (a) the defendant's failure to exercise reasonable care increased the risk of harm beyond what existed without the undertaking, (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) a harm was suffered because the other or third persons relied on the undertaking.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 83-84.) Plaintiff’s premises liability cause of action does not allege facts showing that Defendant meets these elements.

Defendant’s demurrer to the complaint is sustained as to the second cause of action for premises liability.

The burden is on Plaintiff to show in what manner he 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, Plaintiff requests leave to amend. Based on Plaintiff’s arguments concerning the incident, the Court finds there is a reasonably possibility the complaint can be cured to state a claim against Defendant.

Defendant’s demurrer is sustained to the second cause of action for premises liability with 20 days leave to amend.

Hon. Audra Mori

Judge of the Superior Court

[1] On December 8, 2022, Defendant electronically filed two replies to Plaintiff’s opposition: one filed at 2:40 p.m., and the other at 2:45 p.m. The Court will consider only the reply filed at 2:45 p.m.