Judge: Cherol J. Nellon, Case: 22STCV29742, Date: 2023-05-23 Tentative Ruling

Case Number: 22STCV29742    Hearing Date: May 23, 2023    Dept: 28

Defendant City of Downey’s Demurrer

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On September 13, 2022, Plaintiff Margarita Avellaneda (“Plaintiff”) filed this action against Defendants Gentry Brothers, Inc. (“BG”) and City of Downey (“City”) for general negligence and dangerous condition of public property.

On March 10, 2023, Plaintiff filed the FAC.

On April 10, 2023, the City filed a Demurrer to be heard on May 23, 2023. On May 10, 2023, Plaintiff filed an opposition. On May 16, 2023, the City filed a reply.

Trial is scheduled for March 23, 2024.

PARTY’S REQUESTS

The City requests the Court sustain the demurrer to the second cause of action.

Plaintiff requests the Court overruled the demurrer.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state

facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) 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.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Government Code § 835 provides “[e]xcept 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.”

A dangerous condition is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” GC § 830.

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.” To impose a mandatory duty on a public entity, the “mandatory nature of the duty must be phrased in explicit and forceful language;” it is not sufficient to contain just some mandatory language. (Guzman v. County of Monterey (2009) 46 Cal. 4th 887, 910-911.)

A totality of circumstances approach should be applied in evaluating whether there is a dangerous condition of public property; the Court should account for physical characteristics of the defect, history of the site and the parties, and the setting at the time of the incident. (Caloroso v. Hathaway (2004) I22 Cal.App.4th 922, 927.)

According to Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 267-268, when determining if a risk if trivial, courts look to a multitude of factors beyond just depth or height of a fault. For example, for sidewalks, courts may look towards physical characteristics (such as exposed rebar or broken pieces), visibility, and history (such as whether anyone else has been injured).

DISCUSSION

Plaintiff alleges that Plaintiff tripped on an un-even section of pavement transition after she parked Telegraph Road, near Birchbark Avenue.

The City alleges that Plaintiff has failed to plead that the dangerous condition actually exists on public property, how it is considered to be a dangerous condition, who the property belong to, and if the City had notice of the condition. In order to plead a claim for a dangerous condition of public property, a plaintiff must plead that the property was dangerous in a manner that posed a reasonably foreseeable risk of the injury experienced. The dangerous condition must be either created by an act or omission of a public employee, or the government entity must be on actual or constructive notice of the dangerous condition.

The Court agrees, in part. Plaintiff did provide information as to the dangerous condition—an un-even section of a pavement transition. Plaintiff does not need to provide in depth facts when pleading, only facts sufficient to state a cause of action. However, Plaintiff has not provided facts that establish the location of the incident. Although Plaintiff stated that she was walking after parking her car on Telegraph Road, the Court is unaware if that is where the incident took place. Plaintiff does not specify if this was immediately after she parked, or after walking for multiple minutes. An attached exhibit of a “Google Maps Pin” is insufficient to meet the pleading standards. The location of the alleged incident is unclear. Plaintiff needs to provide

textual facts, sufficient to allow Defendants to understand the claim that is being presented against them. As of now, Defendants would potentially have to evaluate any and all un-even sections of pavement around the general area in order to begin to understand the alleged incident. Plaintiff similarly fails to plead that the condition had existed long enough to put the City on notice, instead simply asserting that the City was or should have been on notice.

The Court sustains the demurrer, with leave to amend.

CONCLUSION

Defendant City of Downey’s Demurrer is SUSTAINED, with 30 days leave to amend.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.