Judge: Gary I. Micon, Case: 24CHCV03389, Date: 2025-01-14 Tentative Ruling
Case Number: 24CHCV03389 Hearing Date: January 14, 2025 Dept: F43
Dept.
F43
Date:
01-14-25
Case
# 24CHCV03389, Avila, et al. v. Los Angeles Dept. of Water and Power, et al.
Trial
Date: None set.
DEMURRER
MOVING
PARTY: Defendant Los Angeles Department of Water and Power
RESPONDING
PARTIES: Plaintiffs Edwin Avila and Elda Sahagun Ortiz
RELIEF
REQUESTED
Sustain
demurrer to the First, Third, and Fourth causes of action.
RULING: Demurrer is sustained
with leave to amend as to the First,
Third, and Fourth causes of action.
SUMMARY
OF ACTION
Plaintiffs
Edwin Avila and Elda Sahagun Ortiz (Plaintiffs) filed this action against defendants
Los Angeles Department of Water and Power (LADWP), Manuel Angel Ramirez, and
LADWP’s employees Does 1-50 on September 19, 2024, alleging two negligence
causes of action, negligent entrustment, and negligent hiring, training and
supervision.
The
complaint alleges LADWP owned a GMC Yukon XL vehicle, a heavy-duty machinery
that contained government markings and logos.
(Compl., ¶ 6.) On August 9, 2023
at 6:00 pm, LADWP’s employees and independent contractors left the GMC unlocked
and unsecured, defendant Ramirez stole the GMC, defendant Ramirez struck
Plaintiffs with the GMC, and Plaintiffs suffered injuries. (Compl., ¶¶ 15-17.)
LADWP
filed a demurrer to the complaint’s first, third, and fourth causes of action on
December 4, 2024. Plaintiffs filed an
opposition on December 31, 2024. No
reply has been filed.
MEET
AND CONFER
Before
filing a demurrer, the parties must meet and confer “in person, by telephone,
or by video conference.” (Code Civ.
Proc., § 430.41, subd. (a).) The moving
party must file and serve a meet and confer declaration stating either: (1) the
means by which the parties met and conferred, that the parties did not reach an
agreement resolving the issues raised in the demurrer; or (2) that the party
who filed the pleading subject to the demurrer failed to respond to the meet
and confer request or failed to meet and confer in good faith. (Code Civ. Proc., §§ 430.41, subd. (a)(3).)
LADWP’s
counsel, Deputy City Attorney Michael W. Kwon, states he emailed a meet and
confer letter to attorney Hyka H. Karapetian on November 19, 2024, stating the
grounds for the demurrer. (Declaration
of Michael W. Kwon, ¶ 3, Exh. 1.)
Plaintiffs’ counsel did not respond to the email. (Kwon Dec., ¶ 4.)
Plaintiffs’
counsel, Hyka H. Karapetian, concedes that LADWP met its meet and confer burden
and notes that she had surgery after receiving the meet and confer letter which
would have prevented her from responding in a timely manner. (Declaration of Hyka H. Karapetian, ¶
4.) However, Ms. Karapetian believes the
parties would not have reached a resolution.
(Ibid.)
The
Court finds the parties did not sufficiently meet and confer but will still
consider the demurrer.
SUMMARY
OF ARGUMENTS
LADWP
argues that Plaintiffs’ First Cause of Action for negligence fails to state
facts sufficient to constitute a claim against a governmental entity based on
statutory grounds and the cause of action is vague and uncertain because it
fails to identify a statutory basis for imposing liability for breach of a
mandatory duty. The negligent
entrustment cause of action fails for the same reasons and because Plaintiffs claim
LADWP entrusted its vehicle to defendant Ramirez but also claim Ramirez stole
the vehicle. Finally, the negligent
hiring, training, and supervision cause of action fails to establish LADWP, a
public entity, owed a duty to Plaintiffs because the Government Claims Act
abolished common law actions against public entities and the complaint does not
state a statutory basis for this causes of action.
Plaintiffs
oppose stating the complaint alleges several statutory bases for their
negligence and negligent entrustment claims via a respondent superior theory
based in Government Code sections 815.2, 815.4, and 820. Plaintiffs allege that LADWP’s employees
failed to properly secure the property which led to defendant Ramirez stealing
the GMC and injuring Plaintiffs with the GMC.
Alleging breach of a mandatory duty is not the only one basis for
government liability. Further, the
complaint sufficiently alleges LADWP hired and retained specific LADWP Doe
employees and independent even though LADWP knew these employees lacked the
capacity required to secure the GMC from theft.
ANALYSIS
As a general matter, a¿party may respond to a
pleading against it by demurrer on the basis of any single or combination of
eight enumerated grounds, including¿that¿“the pleading does not state facts
sufficient to constitute a cause of action” and is uncertain, meaning
“ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e), (f)). The
grounds for demurring must be apparent from either the face of the complaint or
a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see
also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The purpose of a demurrer is to challenge the
sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153
Cal.App.3d 280, 286.) “In the
construction of a pleading, for the purpose of determining its effect, its
allegations must be liberally construed, with a view to substantial justice
between the parties.” (Code Civ. Proc.,
§ 452.) The court “treat[s] the demurrer
as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law[.]”
(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court
liberally construes the complaint to determine whether a cause of action has
been stated. (Picton v. Anderson
Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)
Government
Liability for Negligence
Under California’s Government Claims Act, tort
liability against public entities must be based in statute. (Guzman v. County of Monterey (2009) 46
Cal.4th 887, 897; see Gov. Code, § 815, subd. (a); Williams v. Horvath (1976)
16 Cal.3d 834, 838 [noting the Legislature’s intent to “confine potential
governmental liability to rigidly delineated circumstances.”].) One such statute is Government Code section
815.6.
A public entity may be held directly liable for if
the (1) public entity is under a mandatory duty imposed by an enactment (2) that
is designed to protect against the risk of a particular kind of injury, and (3)
the public entity’s breach of this duty proximately caused plaintiff’s
injuries. (Gov. Code, § 815.6; Haggis
v. City of Los Angeles (2000) 22 Cal.4th 490, 498.) The public entity is not liable if it can
establish that it exercised reasonable diligence to discharge the duty. (Haggis, supra, 22 Cal.4th at
p. 498.)
Further, a public entity may also be held vicariously
liable its employees or independent contractors’ acts or omissions unless the
employees or independent contractors are immune from liability for their
actions. “[A] public employee generally
is liable for an injury caused by his or her act or omission ‘to the same
extent as a private person’ and that, when the act or omission of the public
employee occurs in the scope of employment the public entity will be
vicariously liable for the injury[.]” (Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1113, 1127; see also Gov. Code,
§§ 815, 815.2, 820, subd. (a).) “A
public employee is not liable for an injury resulting from his act or omission
where the act or omission was the result of a discretionary act.” (Govt Code, § 820.2.)
First Cause of Action - Negligence
LADWP demurs to the first cause of action because the
complaint fails to state sufficient facts and is uncertain. LADWP argues that the Government Claims Act
establishes sovereign immunity for public entities in tort actions unless the
Act or some other statute provides otherwise.
The complaint does not reference a specific statute that imputes
liability to LADWP under this cause of action but pleads common law negligence. The statutes cited in the complaint do not
provide specific statutory authority to impose negligence on a public entity
based on the complaint’s allegations that non-public employee stole an LADWP
vehicle and caused a collision with a parked vehicle. Each of the cited statutes implicate acts by
a government employee. LADWP’s GMC is
not a dangerous condition nor is LADWP’s property a dangerous condition. Defendant Ramirez created a dangerous
condition through his reckless driving, which caused a collision and Plaintiffs’
injuries.
Plaintiffs oppose arguing the complaint pleads
several statutory bases for its negligence claims: Government Code sections
815.2, 815.4, and 820. The Act states
governmental entities can be held vicariously liable for torts committed by its
employees or independent contractors. Sections
815.2, 815.4, and 820 explicitly hold public employees liable for acts or
omissions within their employment that cause injuries to private persons. There is no immunity for an employee engaged
in mere operational, lower-level decisions that implement basic policy that has
already been formulated. LADWP attempts
to limit the complaint to the argument that Plaintiffs must allege a mandatory
statutory duty in order to sufficiently plead a claim.
As mentioned above, a public entity may be
vicariously liable under for torts committed by its employees. (Gov. Code. § 815.2.) “A public entity is liable for injuries
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.” (Gov. Code §
815.2, subd. (a.); see also Gov. Code, § 815.4 [mirroring similar language for independent
contractors].)
Under
section 835, “a public entity is liable for injury caused by a dangerous
condition of its property if the plaintiff establishes that the property was in
a dangerous condition at the time of the injury, that the injury was proximately
caused by the dangerous condition, that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was incurred, and 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, subds. (a), (b).) A
dangerous condition of property “creates a substantial . . . risk of injury
when such property or adjacent property is used with due care in a manner in
which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).)
The Court finds the complaint does not sufficiently
allege LADWP’s vicarious liability for Plaintiffs injuries. Plaintiffs allege negligence based on
third-party misconduct—that Plaintiffs were injured by someone who collided
with them while driving a stolen LADWP truck that LADWP employees or
independent contractors left unlocked and unsecured. (Compl., ¶¶ 19-23.) Further, the complaint also contains
confusing allegations stating that both LADWP and LADWP’s employees and
independent contractors owed Plaintiffs a duty, without citing a statutory
basis for the duty owed by LADWP.
Accordingly, the Court sustains the demurrer to the
first cause of action.
Third
Cause of Action - Negligent Entrustment
LADWP demurs to the third cause of action because the
complaint fails to state sufficient facts and is uncertain. LADWP argues negligent entrustment is
derivative of common law negligence and is not codified in California’s
statutes. Plaintiffs cannot cite any
statutory authority to support this claim.
Defendant Ramirez was not an LADWP employee, and it was his actions that
caused Plaintiffs’ injuries. Further, the
California Supreme Court has held hat direct tort liability of public entities
must be based on a specific statute declaring them liable not on general tort
provisions such as Civil Code section 1714.
Plaintiffs oppose arguing they are not required to specify
which of LADWP’s employees committed negligent acts or omissions during the
pleading stage. Plaintiffs cite to
several cases stating a duty to keep machinery locked and in a place where
others cannot obtain access to it exists.
These cases involve private entities, private individuals and complaints
pleading specific acts such as vehicle owners leaving vehicles unattended and
unlocked with keys in the ignition.
To establish a negligent entrustment claim, the
complaint must plead that (1) the defendant owned a vehicle, (2) which the
driver operated, (3) defendant knew or should have know the driver was
incompetent or unfit to drive, (4) the defendant permitted the driver to
operate the vehicle, and (5) the driver’s incompetence or unfitness to drive
was a substantial factor in causing harm to the plaintiff. (McKenna v. Beesley (2021) 67
Cal.App.5th 552, 565-566; see also CACI No. 724.)
Similar to the negligence cause of action, the Court
finds that the negligent entrustment claim fails for several reasons. First, public entities cannot be held
directly liable for common law torts.
Second, the complaint fails to allege an underlying negligent
entrustment action for which LADWP could be held vicariously liable. The complaint fails to plead that LADWP’s Doe
employees or independent contracts negligently operated the GMC or entrusted
the GMC to defendant Ramirez. Finally,
the complaint fails to allege that LADWP permitted its employees or independent
contractors to operate the GMC with knowledge that the employees were incompetent
or unfit.
Accordingly, the Court sustains the demurrer to the
third cause of action.
Fourth Cause of Action - Negligent
Hiring, Training, and Supervision
LADWP demurs to the fourth cause of action because the
complaint fails to state facts establishing a statutory basis for LADWP’s
liability. LADWP argues this cause of
action is derivative of common law negligence and case law establishes that
negligent hiring, training, and supervision claims fail as a matter of law
against governmental defendants.
Plaintiffs oppose arguing the complaint explicitly
alleges LADWP’s Doe employees and independent contractors were unfit to perform
their responsibilities which required them to secure and prevent the theft of
the GMC, LADWP constructively and actually knew the employees and independent
contractors were unfit and still hired them.
These facts are sufficient to support a negligence hiring, training, and
supervision claim.
A public entity cannot be held vicariously liable for
negligent hiring, training, or supervision where the employee or independent
contractor’s actions were outside the scope of their employment. (See Van Ort v. Estate of Stanewich (9th
Cir. 1996) 92 F.3d 831, 840; see Gov. Code, §§ 815.2, subd. (a), 820, subd.
(a).) Although California courts have
held that school districts may be held directly liable for negligence hiring
and supervising, this stems from a school district’s affirmative duty to take
all reasonable steps to protect its students.
(See Virgina G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th
1848, 1855; see also Van Ort v. Estate of Stanewich (1996) 92 F.3d 831,
841.) This duty is based upon and limited to the special relationship between school
districts and their students and does not expand to all public entities. (Van Ort, supra, 92 F.3d at p.
841.)
The complaint alleges that prior to August 9, 2023,
LADWP hired Does 11-50 employees, agents, and independent contractors and
required them to keep the GMC secured.
(Compl., ¶ 36.) LADWP hired and
continued to employ these individuals even though LADWP actually and
constructively knew these individuals were unfit or unqualified for their
positions. (Compl., ¶¶ 36-38.)
The Court finds the complaint fails to allege a
negligent hiring claim because common law tort principles, including those
codified at Civil Code section 1714, are insufficient to support a direct tort
claim against a public entity. Further,
the complaint does not reference a statute that makes LADWP liable or creates
some specific duty of care or allege a special relationship between LADWP and
Plaintiffs.
Accordingly, the Court sustains the demurrer to the
fourth cause of action.
Leave
to Amend
Leave to amend must be allowed where there is a
reasonable possibility of successful amendment.
(Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the
court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015)
244 Cal.App.4th 118, 226.)
It appears that Plaintiffs could amend their
complaint to address the deficiencies in some of their claims. Accordingly, leave to amend is granted.
CONCLUSION
Demurrer is overruled, in part, for the First cause
of action, and sustained, in part, for the Third, and Fourth causes of
action.
1. Plaintiffs may file an amended complaint within
twenty (30) days of the date of this order.
Defendant LADWP to give notice.