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 Defendants Los Angeles County Development Authority (“LACDA”) and Ruzanna Khetchian are 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 and Khetchian failed to discover, locate, correct, warn and protect people from an alleged dangerous condition of the walkway and are therefore responsible for her injuries.   

The Court previously sustained a demurrer to Plaintiff’s negligence claim in the First Amended Complaint (“FAC”).  The First Amended Complaint was brought only against LACDA.  The Court ruled that as a public entity, LACDA was immune from all common law torts including negligence.  The Court also ruled LACDA could not be held vicariously liable because the FAC 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.    

Plaintiff then filed a second amended complaint (“SAC”) with two counts: (1) general negligence and (2) dangerous condition of public property.  Plaintiff also added a new defendant, Khetchian, who she claims is the “manager.” 

This hearing is on Khetchian’s demurrer to the SAC.  Khetchian argues that (1) the claim for negligence fails because she is immune pursuant to Gov. Code § 820.2 and also because no facts are pled as to how she acted negligently, and (2) the claim for dangerous condition of public property fails because the Government Claims Act does not authorize liability against an individual.   

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).)  Khetchian submits the Declaration of Caroline Park, which shows the parties met and conferred by telephone.  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 

Negligence Claim 

Khetchian argues Plaintiff’s negligence claim fails because she is immune and Plaintiff does not allege how she acted negligently.  The Court agrees on the second point. 

A¿government¿employee¿is¿immune¿from liability when her alleged¿wrongdoing is the result of her exercise of¿discretion¿pursuant to¿Gov.¿Code § 820.2, which states: “except as otherwise provided by statute, 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.”  Khetchian argues the Complaint does not show she engaged in matters not subject to her discretion under § 820.2.  But immunity is an affirmative defense, and case law holds that a plaintiff is not¿required¿to¿plead¿around¿a defendant’s affirmative¿defense¿unless the¿complaint¿shows on its face that the defense bars the action. (Czajowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 174.)¿ Here, there is nothing in the Complaint to suggest Khetchian’s actions are the result of her exercise of discretion, and therefore, that she is immune under § 820.2.   

However, the Court agrees with Khetchian that Plaintiff fails to plead how she was negligent.  Plaintiff alleges Khetchian was negligent solely because she was the manager of the property in front of where Plaintiff tripped and fell over a pinecone.  No additional facts are pled. The amended complaint does not allege any facts to explain how Khetchian, acted negligently. Courts will treat a demurrer as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Czajkowski, 208 Cal.App.4th at 173.)  Mere conclusory allegations cannot withstand a demurrer. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1324.)  Here, the Complaint conclusorily alleges that Khetchian was negligent, without pleadings facts to support the claim.  Accordingly, the Court sustains the demurrer to the negligence claim with 20 days’ leave to amend.   

Dangerous Condition of Public Property 

Khetchian argues that Plaintiff cannot allege a dangerous condition of public property claim pursuant to Gov. Code § 835 against an individual.  The Court agrees. 

Gov. Code § 835 provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury…” (emphasis added).  However, “a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.” (Gov Code., § 840.) There is no basis for Plaintiff’s claim for dangerous condition of public property against an individual as only a public entity can be liable for such claims.  In fact, Plaintiff agrees Khetchian should not have been named a defendant in this cause of action.  (Opp at 5:6-8.)  Accordingly, the Court sustains the demurrer to the dangerous condition of public property claim without leave to amend.   

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS Ruzanna Khetchian’s demurrer to the negligence claim with 20 days’ leave to amend, and to the dangerous condition of public property claim without leave to amend.   

 

DATED:  November 19, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court