Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant City of Malibu  

 

RESPONDING PARTY: Plaintiff Estate of Adrine Mekertichian  

 

BACKGROUND 

Adrine Mekertichian was struck by a car and died while crossing Pacific Coast Highway to dine at a restaurant.  Plaintiff, Mekertichian’s estate, has sued the driver, the restaurant, Caltrans and the City of Malibu (the “City”).   

Plaintiff claims the City knew or should have known that customers of the restaurant were parking on both sides of Pacific Coast Highway and crossing the highway.  Plaintiff alleges Defendant disregarded the risk by “approving permits, failing to ensure safety inspections are done, failing to ensure that sufficient safe parking is available, and ensuring that pedestrians and customers are safe.”   

The operative complaint alleges claims for (1) negligence, (2) dangerous condition on public property, and (3) premises liability.  Only the first and second causes of action are asserted against the City.   

This hearing is on the City’s demurrer to Plaintiff’s first cause of action for negligence.  The City argues that under the Government Tort Claims Act, it can only be sued as specified by statute and not in common law, and Plaintiff has not identified a statute authorizing the pursuit of this action against the City.  As of the posting of this tentative, Plaintiff has not filed an opposition. 

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.”).)¿ 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.)¿ 

MEET AND CONFER¿ 

Code Civ. Proc. §430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).)¿ The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).)¿ Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)¿ The City submits the Declaration of David Ferrante-Alan, which fails to show counsel met and conferred in person or by telephone.  Notwithstanding, a failure to meet and confer “shall not be grounds to overrule or sustain a demurrer.”¿ (Code Civ. Proc. § 4341, subd. (a)(4).)¿ 

DISCUSSION 

The City argues that Plaintiff’s negligence claim is barred by the Government Claims Act.¿ The Court agrees.¿¿¿¿ 

The Government Claims Act sets forth when and how a government entity may be sued.¿ (Gov. Code §§810 et seq.)¿ “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.”¿ (Gov. Code § 815 (emphasis added).)¿ Thus, “under the statutory scheme in California, all government tort liability must be based on statute.”¿ (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.)¿ 

In order to state a cognizable cause of action against a government entity, Plaintiff must identify a specific statute declaring the government entity to be liable, and every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of the statutory duty.¿ (Susman v. Los Angeles (1969) 269 Cal.App.2d 803, 809 (“In view of the fact that tort causes of action against public entities are now based on statute, the general rule that¿statutory causes of action must be pleaded with particularity is applicable.¿ Every fact essential to the existence of statutory liability must be pleaded.”))¿ ¿ 

Here, Plaintiff’s complaint does not cite to any statute that authorizes its claims against Defendant.  Plaintiff’s claim is for general negligence at common law.  But it is impermissible to sue a public entity for common law negligence.  (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850 (“Although the complaint sounds in negligence, there is no common law tort liability for public entities in California.  Sovereign immunity is the rule and a public entity may be held liable only if there is a statute subjecting it to civil liability.”); Van Kempen v. Hayward Area Park District (1972) 23 Cal.App.3d 822, 825 (“[T]he liability of the public entity could only be statutory and could not rest on a theory of common law negligence.”); Tolan v. State of California (1979) 100 Cal.App.3d 980, 986 (Government Code section 815 “abolishes all common law or judicially declared forms of liability for public entities except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation.  In the absence of a constitutional requirement, public entities may be held liable only if a statute . . . is found declaring them to be liable.”).)  

In the absence of an explicit provision of statutory liability against a public entity, under § 815.6, a plaintiff can pursue a claim that the entity failed to perform a mandatory duty imposed on it by law.¿ Section 815.6 provides that “[w]here a public entity is under a mandatory duty imposed by an enactment … the public entity is liable for an injury … proximately caused by its failure to discharge the duty ….”¿ The enactment at issue must be “obligatory, 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.4th 490, 498.)¿ “It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.”¿ (Id.)¿ The complaint cites no statute that imposes a mandatory duty on the City. 

Accordingly, the Court sustains the City’s demurrer.  However, as there is a reasonable possibility of amendment to cite statute(s) which would authorize Plaintiff’s suit, the Court sustains the demurrer with leave to amend.     

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Defendant’s demurrer with 20 days’ leave to amend.  

 

DATED: May 5, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court