Judge: Elaine W. Mandel, Case: 24SMCV05614, Date: 2025-06-03 Tentative Ruling

Case Number: 24SMCV05614    Hearing Date: June 3, 2025    Dept: P

Tentative Ruling

Robson v. City of Santa Monica, Case no. 24SMCV05614

Hearing date June 3, 2025

Defendant City’s Demurrer with Motion to Strike

Plaintiff Robson sues defendants City of Santa Monica and County of Los Angeles for negligence, premises liability and wrongful act by public entity employees (Cal. Gov. Code §815.2). Plaintiff alleges defendants left a section of sidewalk open, exposing wires and causing plaintiff to trip and fall. The City demurs to plaintiff’s first and third claims for negligence and Cal. Gov. Code §815.2 and moves to strike “Prem. L-3 – Count Two – Willful Failure to Warn [Civ. Code §846]” from the complaint. Compl. 5, prem. L-3. Plaintiff opposes.

Defendant City’s Demurrer

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must set forth the essential facts of the case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099. In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.

The City demurs to the first claim for negligence, arguing that as a government entity (Gov. Code §811.2; Civ. Code §8036), it has no common law liability. Gov. Code §815; Wright v. Compton Unif. Sch. Dist. (1975) 46 Cal.App.3d 177, 181-182. In California, all government tort liability must be based on statutory authority. Gov. Code §815; Fox v. Fresno (1985) 170 Cal.App.3d 1238; Tolan v. State (1980) 100 Cal.App.3d 980.

Plaintiff argues she asserted statutory authority by tethering the first claim to Cal. Gov. Code §§835 and 815.2. The complaint does not cite to either statute. Further, plaintiff alleges the City itself was negligent for failing to maintain the location. See Compl p. 4, First Cause of Action – General Negligence. Plaintiff must cite specific statutory authority to sustain a negligence claim against a public entity. SUSTAINED with 15 days leave to amend.

The City demurs to the third claim for vicarious liability under Cal. Code Civ. Proc. §815.2. The City argues plaintiff cannot bring a vicarious liability claim pursuant to §815.2, asserting a dangerous condition claim may only be brought pursuant to §835, which “sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” Brown v. Poway Unified Sch. Dist. (1993) 4 Cal.4th 820, 829. Further, “[e]xcept as provided in this article, 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.” Cal. Gov. Code §840.

Plaintiff argues §815.2 authorizes vicarious liability for employee negligence. It states: “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.” Plaintiff offers no allegations showing the purported unnamed employee would be subject to any outside causes of action. This is insufficient.

Plaintiff argues whether §840 applies is a question of fact inappropriate for demurrer, citing Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112. Zelig held existence of a dangerous condition to be a question of fact, not whether §840 is applicable. Further, plaintiff argues “[a]llegations of negligent supervision and training further support independent liability.” Opp. 5:15-16, see also compl. p. 6, prem. L-5b. A claim based on negligent supervision is based on direct liability, not vicarious liability and “must be founded on a specific statute either declaring the entity to be liable or creating a specific duty of care apart from the general tort principles embodied in Civil Code section 1714—and the vicarious liability of a public entity for torts committed by its employees within the course and scope of their employment with the agency.” See de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 251-254. There is “no relevant case law approving a claim for direct liability based on a public entity’s allegedly negligent hiring and supervision practices.” Id. at p. 252.

Plaintiff has not cited a statute approving a claim for direct liability based on the City’s allegedly negligent hiring and supervision practices. Plaintiff fails to allege facts showing the purported employee would be liable outside the §815.2 claim. SUSTAINED with 15 days leave to amend.

Defendant City’s Motion to Strike

The court may strike from a pleading any irrelevant, false, or improper matter, or any matter not drawn or filed in conformity with the laws of the state, a court rule or an order of the court. Code Civ. Proc. §§435, 436. Claims for damages which cannot be imposed should be stricken from a pleading. Stafford v. Schultz (1954) 42 Cal.2d 767, 782; Newman v. Smith (1888) 77 Cal. 22, 27.

The City moves to strike “Prem. L-3 – Count Two – Willful Failure to Warn [Civil Code section 846] The defendant owners who willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity were: City of Santa Monica, a government entity” from the complaint. Compl. Second Cause of Action – Premises Liability p. 5. Plaintiff cites Cal. Gov. Code §§835 and 846 as the basis for the second cause of action. The City argues §846 does not apply to public entities. See Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 568, n. 3, as modified on denial of reh'g (Apr. 20, 2017), citing Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 704-709.

Plaintiff argues reference to §846 is surplusage and not subject to a motion to strike. Surplusage in pleadings may be stricken by motion: “Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded.” Stafford, supra at 782. Further, plaintiff states reference thereto is “not material.” See Opp. 3:1 (“Even If Struck, Reference to § 846 Is Not Material and Does Not Prejudice the City”). The court may strike irrelevant portions of pleadings. GRANTED.