Judge: Gregory Keosian, Case: 22STCV26701, Date: 2023-06-22 Tentative Ruling

Case Number: 22STCV26701    Hearing Date: June 22, 2023    Dept: 61

Defendant County of Los Angeles’s Demurrer to the Second Amended Complaint is OVERRULED. Defendant to answer within 30 days.

I.                DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

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. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant County of Los Angeles (Defendant) demurrers to the Second Amended Complaint (SAC) of Plaintiff E.L. (Plaintiff on the grounds that the first cause of action for negligence is uncertain, and the fourth cause of action for negligent hiring and supervision is duplicative and legally untenable against a public entity. (Demurrer at pp. 4–6.)

The SAC is not uncertain. Defendant readily identifies the two bases of negligence liability that Plaintiff asserts against it in the first cause of action: vicarious liability under Government Code §§ 815.2 and 815.4, and the failure to discharge mandatory duties under Government Code § 815.6. (Demurrer at pp. 4–5.) The Complaint is not “so incomprehensible” that Defendant “cannot reasonably respond.” (Mahan, supra, 14 Cal.App.5^th at p. 848.)

This notwithstanding, Plaintiff in opposition clarifies that the overlapping theories of the first cause of action are unintentional: the claim for vicarious liability under Government Code § 815.2 is asserted, as it must be, under the claim for negligent supervision, which can only be asserted in this context as a vicarious liability claim. (Opposition at pp. 3–4; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879 [holding that school district could be liable for administrator’s negligent hiring and supervision of abusive school employee].) Plaintiff distinguishes this from the first cause of action for negligence in the failure to discharge mandatory duties under Government Code § 815.6. (Opposition at p. 4.) The SAC is therefore properly interpreted to allege a claim under Government Code § 815.6 in the first cause of action, and a claim under Government Code § 815.2 under the fourth cause of action.

Accordingly, the demurrer is OVERRULED.