Judge: Frank M. Tavelman, Case: 23BBCV02256, Date: 2024-11-22 Tentative Ruling

Case Number: 23BBCV02256    Hearing Date: November 22, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Nicholas Norgo (Plaintiff) brings this action against the City of Burbank (Burbank) and Porto’s Bakery Inc (Porto’s). Plaintiff alleges that he slipped and fell in the alleyway behind 3614 Magnolia Blvd. Burbank, CA (the Subject Premises). The Subject Premises is located directly behind a restaurant/bakery operated by Porto’s. Plaintiff states two causes of action: (1) General Negligence (as against Porto’s) and (2) Premises Liability (as against all Defendants). Plaintiff’s cause of action for Premises Liability against Burbank is predicated on his claim of a Dangerous Condition of Public Property pursuant to California Government Code (Gov. Code) § 835.

Before the Court is a demurrer brought by Burbank to the sole cause of action stated against them in Plaintiff’s First Amended Complaint (FAC). Burbank argues that the FAC alleges insufficient facts to establish a cause of action based on a Dangerous Condition of Public Property.

On November 8, 2024, Plaintiff has filed a document labeled “Opposition to Demurrer”. This document does not address the merits of Burbank’s demurrer, instead stating that Plaintiff intends to file a Second Amended Complaint (SAC) which would render Burbank’s demurrer moot. Plaintiff then attempted to file the SAC, but it was rejected by the Clerk of the Court. Plaintiff’s SAC was rejected because he had already utilized his right to amend under C.C.P. § 472(a) and because Porto’s already filed an Answer to the FAC.

ANALYSIS: 

I.                    LEGAL STANDARD 

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MERITS

Meet and Confer

C.C.P. § 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review, the Court finds the meet and confer requirements were met. (Aguado Decl. ¶¶ 10-11.)

RJN

Burbank requests Judicial Notice be granted of Plaintiff’s February 9, 2023 Government Claim Form. (RJN Exh. 1.) The Court agrees that the Government Claim Form is subject to judicial notice pursuant to Evidence Code § 452(c). Burbank’s request is GRANTED. The Court notes that while judicial notice may be taken of this document and its contents, the truth of the claim itself is not subject to judicial notice. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369 fn. 1.)

Discussion

A public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes: (1) that the property was in a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code § 835 [numeration of elements added].)

Burbank demurs to Plaintiff’s sole cause of action on grounds that his pleadings lack the requisite specificity to maintain an action for Dangerous Condition of Public Property. For reasons stated below, the Court finds this argument persuasive.

Case law makes clear that the general pleading standards are heightened in actions brought pursuant to Gov. Code § 835. “The limited and statutory nature of governmental liability mandates that claims against public entities be specifically pleaded. Accordingly, a claim alleging a dangerous condition may not rely on generalized allegations but must specify in what manner the condition constituted a dangerous condition.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 429 [internal citations omitted].) As such, this demurrer tasks the Court with determining whether the FAC contains sufficiently detailed allegations of a “dangerous condition”. This determination necessitates that the Court briefly review the definition of “dangerous condition” provided by statute, as well as the corresponding case law.

Gov. Code § 830 defines “dangerous condition” as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property ... is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Notably, this definition leaves the key phrase “condition of the property” up to interpretation.

Subsequent case law has clarified that a “condition of the property” refers to a physical characteristic of the property itself. “A dangerous condition exists when public property is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself, or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users.” (Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1230 [internal citations and question marks omitted.) “To establish a qualifying condition, the plaintiff must point to at least one physical characteristic of the property. However, the location of property may constitute a qualifying characteristic.” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 759 [internal citations and question marks omitted].)

Gov. Code § 830 and the case law interpreting it make clear that Plaintiff must allege sufficiently detailed facts as to damage, deterioration, or defect present in the alleyway where he allegedly fell. At current, Plaintiff’s allegations are insufficient. Plaintiff only generally alleges that he “…came into contact with a dangerous and hazardous condition on the subject property.” (FAC pgs. 4-5.) The FAC contains no factual allegations as to the nature of the defect or how it caused Plaintiff to slip/fall. Plaintiff has not sufficiently alleged what the condition of the property was or how it qualifies as dangerous.

Accordingly, the Court intends to sustain the demurrer to this cause of action. Generally, the Court would be inclined to grant leave to amend in a situation such as this. Plaintiff’s claims have not previously been subject to demurrer and vague factual allegations are generally resolvable upon amendment. However, Burbank’s judicially noticed document is cause for further consideration. While the Court intends to grant Plaintiff 20 days’ leave to amend, its decision to do so requires more explanation.

Burbank has judicially noticed Plaintiff’s Government Claim Form (hereinafter Claim Form). As previously noted, judicial notice of this document is limited to the filing and its contents and cannot be used to establish the truth of document’s contents. Plaintiff’s Claim Form alleges, “Claimant was walking down the alley behind the subject property when due to a dangerous condition of public property including a liquid slippery substance of [sic] the walkway, he was caused to step onto the liquid substance, fall and sustain injuries.” (RJN, Exh. 1 at p. 5.) It further alleges “City of Burbank allowed a slippery liquid to remain on the walkway, failed to clean or warn of a slippery walkway and otherwise allowed a dangerous condition of public property to exist under Government Code Section 835 et seq.” (Id.)

Case law explains that Plaintiff is bound by the factual allegations made in his Claim Form. “[T]he factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim” (Watson v. State of California (1993) 21 Cal.App.4th 836, quoting Nelson v. State of California (1982) 139 Cal.App.3d 72 [internal quotation marks and citations omitted].) A complaint of this nature is not subject to demurrer where it merely elaborates on a claim’s fundamental factual allegations. (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447.)

Here, Plaintiff’s allegations as to the liquid in his Claim Form restrict the factual allegations he may present in this action. This is important because the existence of a slippery liquid is not a “defective condition” within the meaning of the law. As previously discussed, Plaintiff must allege his injury was proximately caused by a physical characteristic of the Subject Premises. Plaintiff’s allegation about the presence of a slippery liquid does not equate to an allegation that the property was physically damaged, deteriorated, or defective. Further, Plaintiff’s Claim Form alleges Burbank’s role in his injury was only that they allowed the liquid to remain on the premises and did not warn of it.  

Regardless, the Court still finds amendment could rectify the deficiencies in the FAC without alleging fundamentally different facts from those presented in the Claim Form. A public entity may be liable for a dangerous condition of public property even where the immediate cause of a plaintiff's injury is a third party's negligent or illegal act, if Plaintiff can demonstrate some physical characteristic of the property that exposes its users to increased danger from third party negligence or criminality. (Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5th 292, 307.) Here, it is possible that Plaintiff could amend his FAC to provide additional allegations to meet the applicable standard; however, the Court will not provide further details such as to cross the line to advocacy. What these facts are and whether they conform to the reality of Plaintiff’s case is a determination for Plaintiff and his counsel.  

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

The City of Burbank’s Demurrer came on regularly for hearing on November 22, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO THE SECOND CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE CITY OF BURBANK TO GIVE NOTICE.  

IT IS SO ORDERED. 

DATE:  November 22, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles