Judge: Edward B. Moreton, Jr., Case: 21SMCV01171, Date: 2022-12-14 Tentative Ruling

Case Number: 21SMCV01171    Hearing Date: December 14, 2022    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

MOVING PARTY:                    Defendant City of Los Angeles

RESPONDING PARTY:         Plaintiff Farah Mirabadi

BACKGROUND

Plaintiff Farah Mirabadi is the owner of a home located at 1070 Stradella Road, Los Angeles, California (the “Property”).  The home was damaged as a result of sewage backup.  Plaintiff claims that Defendants City of Los Angeles, City of Los Angeles Sanitation Department and City of Los Angeles Department of Public Works caused the sewage backup while they were doing work on Stradella Road.  Plaintiff also alleges the sewage backup was caused by the defective design and negligent maintenance of the sewer system.  The Second Amended Complaint (“SAC”) alleges four causes of action for (1) negligence, (2) nuisance, (3) inverse condemnation and (4) trespass. 

This hearing is on Defendant City of Los Angeles’ demurrer of Plaintiff’s claims for negligence and trespass.  Defendant argues that under the Government Claims Act, in order to state a tort claim against Defendant, Plaintiff must cite to a specific statute which imposes a mandatory duty to prevent the damage, which it argues Plaintiff has failed to do.    

LEGAL STANDARD

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  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.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)        

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

DISCUSSION

Government Claims Act

            Under the Government Claims Act, to allege a cause of action for torts such as negligence or trespass, a plaintiff must cite to a specific statute that imposes a mandatory duty on the public entity to prevent the damage.  (Tilton v. Reclamation District No. 800 (2006) 142 Cal.App.4^th 848, 859-860, 864.)  Gov. Code § 815 provides: “Except as otherwise provided by statute (a) A public entity is not liable for an injury whether such injury arises out of an action or omission of the public entity or a public employee or any other person.”  (Emphasis added.)

Further, Gov. Code §815.6 states: “Where 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.”  (Emphasis added.)  Application of Gov. Code §815.6 requires that the enactment be mandatory rather than merely discretionary or permissive; “it must require rather than merely authorize or permit, that a particular action be taken or not taken.”  (Haggis v. City of Los Angeles (2000) 22 Cal.4^th 490, 498-499.) 

Moreover, whether an enactment creates a mandatory duty is a question of law.  (Id.)  “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.”  (Id.)

            The Court considers whether as to her claims for negligence and trespass, Plaintiff has alleged a specific statute or regulation creating a mandatory duty. 

Negligence

Under her negligence cause of action, Plaintiff cites to Gov. Code §§820, 830 and 835, alleging that a “dangerous condition” proximately caused her injuries.  Section 835 deals with the responsibility of a public entity for the dangerous condition of its property.  There are two bases for liability under that section: the first, under subdivision (a), where the dangerous condition has been created by the negligent or wrongful act or omission of an employee of the public entity, and the second, under subdivision (b), where the entity has actual or constructive notice of the dangerous condition a sufficient time before the injury to have taken measures to protect against the condition.  (Gov. Code §835.)  Plaintiff “bears the burden of establishing either that the public entity negligently or wrongfully created the dangerous condition or that the entity had notice of the dangerous condition for a long enough time to protect against the danger.”  (Metcalf v. County of San Joaquin (2008) 42 Cal.4^th 1121, 1126.)

For liability under §835(a), a public employee must have “actively created” the dangerous condition under circumstances that would “justify a presumption of notice on the part of a public employer.”  (Brown v. Poway Unified Sch. Dist. (1993) 4 Cal.4^th 820, 837.)  Here, Plaintiff alleges that Defendant actively created the dangerous condition by its “deliberate design” and “construction” of the sewage system, including “rel[ying] in part on property owners installing and maintaining backwater valves” (SAC ¶¶21, 22, 23, 30, 32).  But a sewer system is not in and of itself a dangerous condition.  Plaintiff also alleges Defendant actively created the dangerous condition by their “negligent maintenance work and continued upkeep of the sewer system.”  (SAC ¶24).  At most, this allegation suggests Defendant could have prevented the dangerous condition, not that it actively created it. 

For liability under §835(b), there must be either actual or constructive notice.  In order to establish constructive notice, the plaintiff is required to establish that the condition existed for “such a period of time,” and “was of such an obvious nature”, that the public entity “in the exercise of due care should have discovered the condition and its dangerous character.”  (Gov. Code §835.2(b).)  Plaintiff has alleged sufficient facts to support a claim that Defendants had actual notice of the dangerous condition, the possibility of a sewage backup.  Plaintiff alleges that “Defendants had actual notice about the sewer system problem in Stradella since they were working on the road prior to 9/27/2022, due to a reporting of a sewer/sewage back up and the clogging of the sewer lines.”  (SAC ¶49.)  According to Plaintiff, city workers informed her that “they knew about the sewer problem on Stradella due to some work they were doing during the preceding days prior to September 27, 2020.  They stated that their work was due to a reporting of sewage backup and the clogging of the sewer lines on the road.”  (SAC ¶20.)   

Accordingly, the Court overrules Defendant’s demurrer on Plaintiff’s negligence claim. 

Trespass

As to her trespass claim, Plaintiff has not cited to a specific statute that imposes a mandatory duty on Defendant to prevent the damage.  She only cites to §820.2 which deals with “discretionary act immunity.”  But that is not a statute that creates government liability.  Section 815.6 requires a statute to impose tort liability on a governmental entity.  Plaintiff must first establish a statutory duty that triggers governmental liability, before reaching the next issue of whether there is statutory immunity.  The Court sustained the demurrer on Plaintiff’s trespass claim previously on the same grounds.  (August 9, 2022 Minute Order.)  As the Court has already given Plaintiff leave to amend her trespass claim to allege a statute that imposes a mandatory duty and she has failed to do so, the Court will sustain the demurrer without leave to amend.    

CONCLUSION

Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendant City of Los Angeles’ demurrer.  The demurrer on the claim for trespass is sustained without leave to amend.

IT IS SO ORDERED.

DATED: December 14, 2022                                              ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court