Judge: H. Jay Ford, III, Case: 21SMCV01171, Date: 2022-08-09 Tentative Ruling

Case Number: 21SMCV01171    Hearing Date: August 9, 2022    Dept: O

Case Name:               Farah Mirabadi v. City of Los Angeles, et al.

SUBJECT:                 DEMURRER TO FIRST AMENDED COMPLAINT

MOVING PARTY:   Defendant City of Los Angeles

RESP. PARTY:         Plaintiff Farah Mirabadi

TENTATIVE RULING

            Defendant City of Los Angeles’ Demurrer to First Amended Complaint is SUSTAINED with leave to amend.

            Defendant City demurs to the first cause of action for negligence and fourth cause of action for trespass on grounds that Plaintiff has failed to allege specific statutes imposing mandatory duties to prevent the alleged damage.

            A public entity is not liable for an injury unless that liability is provided for by statute.  Gov. Code § 815(a).  “[T]o state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.  [Citation.]”  Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.  “Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.”  Id.

            The first cause of action for negligence references Civil Code section 3479.  Civil Code section 3479 defines nuisance, which is already pled as the second cause of action.  Civil Code section 3479 does not provide a basis for statutory liability for negligence.  Plaintiff does not identify any other statute specifically providing for Defendant’s liability.  Plaintiff has thus failed to sufficiently plead the negligence cause of action against Defendant.

            The fourth cause of action for trespass does not identify a statute specifically providing for Defendant’s liability.  While Plaintiff cites to Civil Code section 3334, this is merely for determining the amount of damages.  See Civ. Code § 3334 [stating the detriment caused by the wrongful occupation of real property is deemed to include the value of the use of the property for the time of that wrongful occupation, the reasonable cost of repair or restoration of the property to its original condition, and the costs of recovering the possession].  Civil Code section 3334 does not provide a basis for holding Defendant liable for trespass.  Plaintiff has thus also failed to sufficiently plead the trespass claim against Defendant.

            Plaintiff reliance on Mulloy v. Sharp Park Sanitary Dist. (1958) 164 Cal.App.2d 438 is misplaced.  As noted by Defendant, the Government Claims Act was enacted in 1963.  Cavey v. Tualla (2021) 69 Cal.App.5th 310, 326 [“The Government Claims Act was enacted in 1963 to provide a comprehensive statutory scheme governing the liabilities and immunities of public entities and public employees for torts.”]  Mulloy preceded the enactment of the Government Claims Act. Further, a more recent case has recognized that it is impermissible to sue a public entity for common law negligence.  Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.   Under the Government Claims Act, Plaintiff must plead a specific statutory basis for holding Defendant liable for negligence and trespass.

            Plaintiff also argues that Defendants had a duty to exercise a reasonable care to prevent resulting injury to persons or to property and cites to Civil Code section 1714(a).  Civil Code section 1714(a) is not pled in the FAC.  Further, “direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714.  Otherwise the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.”  Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.  Thus, even if Civil Code section 1714(a) were pled in the FAC, it cannot form the basis of statutory liability for negligence or trespass against Defendant.

            Plaintiff has requested leave to allow her to amend the negligence cause of action to include Government Code section 915.  Government Code section 915 governs the methods of presenting a late claim to a public entity.  It does not provide a statutory basis for negligence liability against Defendant.

            Plaintiff has also argued in opposition that there is no discretionary act immunity.  As pointed out by Defendant in reply, this argument is irrelevant and does not cure Plaintiff’s failure to plead a statutory basis for holding Defendant liable for negligence and trespass.

            As Plaintiff has failed to plead a statutory basis for holding Defendant liable for negligence and trespass, the demurrer to FAC is SUSTAINED with leave to amend.