Judge: David S. Cunningham, Case: 24STCV07120, Date: 2024-11-04 Tentative Ruling

Case Number: 24STCV07120    Hearing Date: November 4, 2024    Dept: 11

24STCV07120 (Lee)

 

Tentative Ruling Re: Demurrer Re: First Amended Complaint

 

Date:                           10/31/24

 

Time:                          1:45 pm

 

Moving Party:           City of Los Angeles (“City”)

 

Opposing Party:        Jong Seo Lee, et al. (collectively “Plaintiffs”)

 

Department:              11

 

Judge:                        David S. Cunningham III

________________________________________________________________________

 

TENTATIVE RULING

 

City’s demurrer is:

 

* sustained with leave to amend as to the first cause of action;

 

* sustained without leave to amend as to the second cause of action; and

 

* sustained with leave to amend as to the issue of compliance with the Government Claims Act.

 

BACKGROUND

 

This is a putative class action.  Plaintiffs allege that City fails to enforce Municipal Code section 63.44, which pertains to tee-time booking at City golf courses.  Plaintiffs claim City’s alleged failure to enforce results in “illegal tee-time brokers [] buy[ing] up and resell[ing] tee times for profit[.]”  (Opposition, p. 2.)

 

Here, City demurs to the first amended complaint (“FAC”).

 

LAW

 

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

 

DISCUSSION

 

First Cause of Action (Mandatory Duty)

 

The FAC alleges that Municipal Code section 63.44 establishes a mandatory duty (see FAC, ¶ 33) and that City breached the duty by:

 

[1] permitting illegal brokering tee times for resale; [2] consenting to illegally advertising tee times for resale; [3] knowingly permitting computer program, bot, offline reader, and site search/retrieval application for the purposes of booking tee times; [4] knowingly permitting other manual or automatic devices, tools, or processes to obtain tee times; [5] acting in collusion with illegal brokers for financial benefits; and [6] disrupting the fair process of tee time booking.

 

(Id. at ¶ 37.)

 

City contends it “is immune from liability based on a failure to enforce an enactment.”  (Demurrer, p. 4.)

 

In response, Plaintiffs assert:

 

Under Government Code section 815.6, “a public entity is liable for an injury proximately caused by its failure to discharge a mandatory duty designed to protect against the risk of a particular kind of injury[.]” [Citations.] . . . “Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.” [Citation.] Section 815.6 requires that the mandatory duty be “designed” to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is “one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.” [Citation.]

 

Here, the Booking Rule expressly prohibits “brokering or advertising tee times for resale without express content of [the City].” It is further prohibited to use any computer program, bot, offline reader and site search/retrieval application.” [Citation.] The City’s duty to enforce the Booking Rule is not a discretionary function [citation], but “requires [ ] that a particular action be taken or not taken” [Citation.]

 

(Opposition, pp. 4-5, emphasis deleted.)

 

The Court tends to disagree with City in part.  “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.”  (Sutton v. Golden Gate Bridge, Highway & Transportation District (1998) 68 Cal.App.4th 1149, 1165; see also Gov. Code § 821 [stating that “[a] public employee is not liable for an injury caused by his adoption of or failure to adopt an enactment or by his failure to enforce an enactment”]; Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5th 292, 304-305 [finding City not liable for City employees’ “failure to enforce the City’s rules and parking standards for dock-less scooters”].)  However, the FAC alleges more than just nonenforcement; it states that City “collu[ded] with illegal brokers for financial benefits[.]”  (FAC, ¶ 37.)  The allegation arguably brings the FAC outside the coverage of City’s immunity authorities.

 

Nevertheless, the Court believes the demurrer should be sustained with leave to amend.  Plaintiffs rely on subdivision G of section 63.44.  (See FAC, ¶ 8.)  Subdivision G states that “[e]very person shall comply with rules promulgated by the Board for the use of golf courses, tennis courts, and dog parks, which rules shall be conspicuously posted at each golf course, tennis court, and dog park.”  (LA Mun. Code § 63.44, subd. G.)  The words say nothing about a duty to enforce, much less a mandatory duty.  Instead, “Plaintiffs’ real quibble is with . . . a rule posted on the Golf Division’s website[.]”  (Reply, p. 2, emphasis in original.)  The rule “merely identifies prohibited golfer conduct” (id. at p. 3, emphasis in original); it may not constitute an enactment (see ibid.); and, at best, it is vague as to enforcement:

 

Brokering or advertising tee times for resale without express written consent of the City of Los Angeles, Department of Recreation and Parks Golf Division is strictly prohibited.

 

*  * * *

 

It is prohibited to use any computer program, bot, offline reader, and site search/retrieval application. Other manual or automatic devices, tools, or processes to retrieve, data mine, or in any way reproduce or circumvent the navigational structure, or presentation of the content or the site itself, for obtaining a City of Los Angeles Golf Reservation Tee Time is strictly prohibited. Violations of our policy will result in tee time cancellations and a loss of reservation and playing privileges. Our goal is to make the booking process fair to all golfers who wish to play at our facilities.

 

(FAC, ¶ 8 [quoting rule].)  Consequently, the Court is inclined to give Plaintiffs one chance to amend to address these problems.

 

Second Cause of Action (Unfair Competition Law (“UCL”))

 

City claims the UCL does not apply to public entities.  (See Demurrer, pp. 5-6.)

 

Plaintiffs disagree.  They contend the UCL applies to public entities “when . . . they engage in commercial activities.”  (Opposition, p. 6.)

 

The Court agrees with City.  The UCL’s plain language provides that “[a]ny person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction.”  (Stern, Business & Professions Code Section 17200 Practice (The Rutter Group March 2023 Update) ¶ 6:2 [quoting the UCL], emphasis added.)  “The term ‘person’ includes ‘natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons.”  (Id. at ¶ 6:3 [quoting the UCL].)  However, it “does not include governmental entities[.]”  (Id. at ¶ 6:5, bolding deleted.)  This is true “even when those entities are acting in a nongovernmental capacity.”  (Ibid. [citing People for Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Board (2005) 125 Cal.App.4th 871 (“People”), California Medical Association, Inc. v. Regents of University of California (2000) 79 Cal.App.4th 542 (“CMA”), Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198, Janis v. State Lottery Commission (1998) 68 Cal.App.4th 824, Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199 (“CMH”), and Santa Monica Rent Control Board v. Bluvshtein (1991) 230 Cal.App.3d 308].) 

 

Plaintiffs’ cases – People and CMH (see Opposition, pp. 6-9) – do not change the result.  Neither decision recognizes a commercial-activity exception, and both hold that a governmental entity does not qualify as a “person” under the UCL.  (See People, supra, 125 Cal.App.4th at 877-879; see also CHM, supra, 50 Cal.App.4th at 209.)

 

In fact, at least two cases appear to find commercial activity irrelevant to the analysis.  (See CMA, supra, 79 Cal.App.4th at 551 n.14; see also Trinkle, supra, 71 Cal.App.4th at 1203-1204.)

 

The demurrer is sustained without leave to amend. 

 

Government Claims Act

 

City contends the demurrer should be sustained because “Plaintiffs fail to allege compliance with the Government Claims Act[.]”  (Demurrer, p. 6.)

 

Plaintiffs did not respond.  (See Opposition, pp. 2-10.)

 

The Court agrees.  “[L]iability of a ‘local public entity’ such as the City is subject to a procedural condition precedent; that is to say, the timely filing of a written claim with the proper officer or body is an element of a valid cause of action against a public entity.”  (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.)  The Court did not see a paragraph in the FAC alleging facts showing compliance with this requirement, so the demurrer is sustained with leave to amend.