Judge: Daniel M. Crowley, Case: 22STCV11718, Date: 2023-03-03 Tentative Ruling

Case Number: 22STCV11718    Hearing Date: March 3, 2023    Dept: 28

Defendant City of Los Angeles’s Motion for Judgment on the Pleadings

Having considered the moving papers, the Court rules as follows. 

BACKGROUND

On April 6, 2022, Plaintiff Elena Maaliw Samonte (“Plaintiff”) filed this action against Defendants County of Los Angeles (“County”) and City of Los Angeles (“City”) for negligence – wrongful death and survival action.

On May 24, 2022, the County filed an answer. On July 28, 2022, the City filed an answer. On November 17, 2022, the Court dismissed the County, without prejudice, pursuant to Plaintiff’s request.

On January 11, 2023, the City filed a Motion for Judgment on the Pleadings to be heard on March 3, 2023.

Trial is currently scheduled for October 4, 2023.

PARTY’S REQUESTS

The City requests the Court grant judgement on the pleadings as Plaintiff failed to present a timely government claim with the City.

LEGAL STANDARD

‘‘A motion for judgment on the pleadings performs the same function as a general demurrer, and [thus] attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.]’  [Citation.]’  [Citation.]”  (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274.)  “In reviewing the motion, [the Court] deem[s] true all properly pleaded material facts, but not contentions, deductions, or conclusions of fact or law, and we may also consider judicially noticed matters.  [Citation.]”  (Bear Creek Master Assn. v. Southern California Investors, Inc. (2018) 28 Cal.App.5th 809, 817.)

According to CCP §439, parties are required to meet and confer at least five days prior to the date a motion for judgment on the pleadings is filed. “...The moving party shall identify all of the specific allegations that it believes are subject to judgment and identify with legal support the basis of the claims. The party who filed the pleading shall provide legal support for its position that the pleading is not subject to judgment, or, in the alternative, how the pleading could be amended to cure any claims it is subject to judgment.” CCP §439(b).

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

Decedent allegedly was injured on May 10, 2021; he was transferred to a hospital and died on May 31, 2021. On October 7, 2021, a Government Claim against the City of Los Angeles was filed on behalf of Decedent; the City alleges that there has been no Government Claim filed for the wrongful death action or survivor action by the Plaintiff in this case.

Substantial compliance with the Government Claims Act is a requirement in a cause of action against a public entity. (Munoz v State of California (1995) 33 Cal.App.4th 1767, 1776.) This requires filing a claim within one year of accrual of the action; Decedent passed on May 31, 2021, which would be the date of accrual for any survival action. It has been more than one year since the action accrued, but Plaintiff did not file a claim on her own behalf. However, Plaintiff is bringing this claim, at least in part, as Decedent’s successor in interest.

In Nelson v County of Los Angeles (2003) 113 CA4th 783, 796-797, the decedent’s parents filed a government claim on their own behalf but did not file a government claim on behalf of decedent or decedent’s estate. The Court found that due to this, claims presented by decedent’s estate were barred as a matter of law due to failure to abide by the GCA.

Here, the subject claim was filed on behalf of Decedent after Decedent’s death. Given these facts, it is reasonable to assume it was filed on behalf of Decedent’s estate. The City does not indicate that it rejected the timely claim, nor did it indicate any issues with the claim. It is reasonable to find that a claim filed on behalf of a decedent would be represented by decedent’s estate.

The Court denies the motion as to the negligence claim. However, the Court grants the motion as to the survival action, as Plaintiff failed to comply with the GCA as to any wrongful death claims on her own behalf. The Court grants leave to amend so Plaintiff may attempt to file a request for relief from the GCA.

CONCLUSION

Defendant City of Los Angeles’s Motion for Judgment on the Pleadings is GRANTED in part, with 30 days leave to amend. The motion is granted as to the wrongful death action. The motion is DENIED as to the negligence action.

            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.