Judge Daniel M. Crowley, Case 21STCV33540 2022-10-13 Tentative Ruling

Judge: Daniel M. Crowley, Case: 21STCV33540, Date: 2022-10-13 Tentative Ruling

Case Number: 21STCV33540 Hearing Date: October 13, 2022 Dept: 28

Defendant City of Los Angeles’s Demurrer

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

BACKGROUND

On September 10, 2021, Plaintiff Lynn Moses (“Plaintiff”) filed this action against Defendants Marqueese Harris-Dawson (“Dawson”) and City of Los Angeles (“City”) for general negligence.

On January 12, 2022, Plaintiff filed the FAC, changing the causes of action for assault, battery and violation of 1^st amendment rights.

On September 6, 2022, the City filed a Demurrer to be heard on October 13, 2022. On September 28, 2022, Moses filed an opposition. On October 4, 2022, the City filed a reply.

Trial is scheduled for March 10, 2023.

PARTY’S REQUESTS

The City requests the Court sustain the demurrer as the Government Claims Act abolishes common law causes of action against public entities and employees.

Plaintiff requests the Court overrule 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.)

“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 public employee or any other person.” (Gov. Code § 815.) A public entity’s direct liability must be statutorily based, not based on common law. (Gov. Code § 815; Munoz v. City of Palmdale (1999) 75 Cal.App.4th 367, 369- 370.) In asserting a cause of action against a public entity, “every fact material to the existence of its statutory liability must be pleaded with particularity.” (Gates v. Superior Court (1995) 32 Cal.App.4th 481, 494

DISCUSSION

Plaintiff’s FAC alleges that Plaintiff was picketing in front of Dawson’s residence on December 15, 2020. Dawson was allegedly a City employee. Plaintiff placed yard signs in the parkway area in front of Dawson’s home. Dawson allegedly exited his home, without a mask, and yelled at Plaintiff to get off his property, knocking down the parkway signs. Dawson took another protestor’s bag and began to walk up towards his home; Plaintiff followed him onto his property for approximately 8 seconds to retrieve the backpack. Plaintiff attempted to take the parkway signs out of Dawson’s hands, but Dawson “chest-bumped” him in the process. Plaintiff alleges that Dawson continuously advanced on Plaintiff’s personal position and tried to remove the signs from Plaintiff’s hands.

Nowhere in the FAC is there a citation to a specific statute that supports a government entity being liable for any of the causes of action. A public entity’s liability must be based in statute, not common law; without providing the statutory basis for these causes of action, Plaintiff’s FAC fails to state facts sufficient to constitute a cause of action. The Court sustains the demurrer.

In Plaintiff’s opposition, Plaintiff cites that the causes of action have a basis in the municipal code; however, whether there is a statutory basis is not the issue. The issue is that the current operative complaint does not cite any statutory basis for Plaintiff’s claims. Plaintiff’s FAC is defective on its face.

CONCLUSION

Defendant City of Los Angeles’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.