Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a slip and fall case.  Plaintiff Elmira Apreian claims that Defendant Los Angeles County Development Authority (“LACDA”) is liable for injuries she sustained when she tripped and fell on a pine cone on the sidewalk adjacent to a multi-use residential property owned and managed by LACDA in the City of West Hollywood.  Plaintiff alleges that LACDA failed to discover, locate, correct, warn and protect people from an alleged dangerous condition of the walkway and is therefore responsible for her injuries.   

The operative first amended complaint (“FAC”) alleges two claims for (1) general negligence, and (2) premises liability.   

This hearing is on LACDA’s demurrer.  LACDA argues that Plaintiff’s cause of action for common law negligence fails because LACDA, as a public entity, is immune from all common law torts including negligence.  Moreover, the FAC alleges vicarious liability against LACDA based on actions by its employees pursuant to Gov. Code § 815.2 but does not provide any facts regarding any employee of LACDA much less that an action by such an employee was negligent and was not the result of the exercise of discretion vested in them.     

 

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving 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.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  LACDA submits the Declaration of Jessica Covington, which shows that while the parties did not meet and confer by telephone or in person, LACDA repeatedly asked for dates on which the parties could meet and confer, but Plaintiff did not respond.  This satisfies the meet and confer requirements of § 430.41.       

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.)  

 

DISCUSSION 

LACDA argues that, as a public entity, it cannot be held liable for common law negligence.  The Court agrees. 

It is well-established that a public entity can only be held liable for damages pursuant to statute and is therefore immune from common law torts, such as negligence.  Gov. Code § 815(a)¿provides that¿public entities are immune from liability unless such liability is expressly provided for by statute or by the constitution.  Numerous decisions confirm that¿section 815¿abolishes common law liability for public entities. (See¿Miklosy v. Regenets of Univ. of Calif. (2008) 44 Cal.4th 874, 899;¿Eastburn v. Regional Fire Protection Authority¿(2003) 31 Cal.4th 1175, 1179;¿Zelig v. County of Los Angeles¿(2002) 27 Cal.4th 1112, 1127-1128.)   

To state a cause of action for government tort liability “every fact essential to the existence of a statutory liability must be pleaded with particularity, including the existence of a statutory duty.  Since the duty of a governmental agency can only be created by statute or enactment, the statute or enactment claimed to establish the duty must at the very least be identified.”  (Zuniga v. Housing Authority¿(1995( 41 Cal.App.4th 82, 96.)¿ Here, the Complaint cites no statute that would permit Plaintiff to bring a claim for negligence.   Accordingly, her negligence claim is subject to demurrer.    

LACDA also argues that the FAC does not state facts sufficient to constitute a cause of action for vicarious liability against LACDA.  The Court agrees. 

The FAC alleges that LACDA is liable to Plaintiff pursuant to Gov. Code § 815.2, which states in pertinent part: “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”   

“In other words, the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person and the public entity is vicariously liable for any injury which its employee causes to the same extent as a private employer.”  (C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal.4th 861, 868.)      

Proper pleading of a claim pursuant to §815.2 requires two elements.  First, the actions of the individual agent must be negligent for such liability to extend to the principal.  (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1113.)  “Furthermore, unless the employee is identified, the trier of fact will not be able to determine if the elements needed to assert vicarious liability have been proved.  Thus, the doctrine clearly contemplates that the negligent employee whose conduct is sought to be attributed to the employer at least be specifically identified, if not joined as a defendant.”  (Id. (citations omitted).)   

Second, there must be facts sufficient to show the actions of the employee do not fall within the purview of any applicable statutory immunity.  (City of Los Angeles v. Superior Court (2021) 62 Cal.App.5th 129, 148 (“[s]ince all California governmental tort liability flows from the¿California [Government] Claims Act, the plaintiff must plead facts sufficient to show his [or her] cause of action lies outside the breadth of any applicable statutory immunity.”)  Such immunities include that of § 820.2 which provides “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” 

Here, Plaintiff fails to allege a single fact to satisfy either element of a claim for vicarious liability.  The FAC fails to allege any facts that show an employee of LACDA acted negligently.  Indeed, the FAC does not identify any employee.  The FAC also fails to show that any acts or omissions of a LACDA employee were not immune under either §§ 815.2 and 820.2.  Accordingly, Plaintiff has not stated a claim for vicarious liability.   

Plaintiff argues that LACDA’s demurrer should be overruled because “the Complaint uses Judicial Counsel approved forms” which are “drafted to not be subject to demurrer.”  Plaintiff cites no authority to support her position.  Indeed, the Court of Appeal has stated that “where specific allegations need to be alleged, the form complaint is like a partially completed painting.  It is up to the pleader to add the details that complete the picture.  The form complaint, here, standing alone, is no more immune to demurrer than any other complaint that fails to meet essential pleading requirements to state a cause of action.”  (People ex. Rel. Dept. Of Transporation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.)   

The Opposition also argues that Plaintiff has properly plead a cause of action for dangerous condition of public property.   But LACDA’s demurrer is not directed to that cause of action.  It is limited to Plaintiff’s claim for negligence.    

CONCLUSION 

For the foregoing reasons, the Court sustains LACDA’s demurrer to the FAC with 20 days’ leave to amend.   

 

DATED:  March 6, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court