Judge: H. Jay Ford, III, Case: 23SMCV02080, Date: 2024-02-06 Tentative Ruling

Case Number: 23SMCV02080    Hearing Date: February 6, 2024    Dept: O

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

SUBJECT:                 DEMURRER W/O MOTION TO STRIKE

MOVING PARTY:   Defendant State of California

RESP. PARTY:         Plaintiff Patricia Baber

TENTATIVE RULING

            Defendant State of California’s Demurrer is OVERRULED as to the 1^st and 2^nd causes of action of Plaintiff Patricia Baber’s FAC. Plaintiff Patricia Baber has substantially complied with Government Code § 910, and has successfully plead all necessary elements of Premises Liability pursuant to Government Code § 835 and General Negligence pursuant to Government Code § 815.2.

            Defendant State of California’s RJN is GRANTED.

I.                Demurrer for failure to comply with Government Claims Act GOV Code § 910 - OVERRULED

            Public entities, such as the State of California “subject to a procedural condition precedent; that is to say, the timely filing of a written claim with the proper officer or body is an element of a valid cause of action against a public entity.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374; see CA GOVT §§ 900.4, 905.) “The failure to timely present a proper claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity. (Gong, supra, 226 Cal.App.4th at p. 374.) “If the plaintiff fails to include the necessary allegations, the complaint is subject to attack by demurrer.” (Id.) If a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.” (Id. at p. 376.) Failure to comply with the Government Claims Act prior to bringing suit bars the claim against the public entity (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 247.)

            “The purpose of these statutes is “to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. Consequently, a claim need not contain the detail and specificity required of a pleading, but need only “fairly describe what [the] entity is alleged to have done. As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions, the claims statute “should not be applied to snare the unwary where its purpose has been satisfied” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446, citations omitted.)

            “The claim, however, need not specify each particular act or omission later proven to have caused the injury. A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an “entirely different set of facts. Only where there has been a “complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim,” have courts generally found the complaint barred. Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.” (Id., at p. 447, citations omitted.)

            “A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: (a) The name and post office address of the claimant. (b) The post office address to which the person presenting the claim desires notices to be sent. (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.” (CA GOVT., § 910.)

            Here, Plaintiff Patricia Baber (“Baber”) has substantially complied with the requirements of CA GOVT § 901. Baber states the name and post office address of the claimant, the attorney or representative information, the date and place where the alleged incident occurred, a general description of the incident, and checked the box for non-limited civil case type. (See RJN, Ex. 1.) Baber did not include the names or name of public employees causing the injury within her claim because Baber alleges to not the know the names. (See Oppo., pp. 6:26-27—7:1–2.) Baber stated the same facts within the FAC and did not base the FAC on an entirely new set of facts. (See generally FAC.)

            Thus, the Court finds Baber has substantially complied with CA GOVT § 910. Defendant State of California’s (the “State”) Demurrer to the FAC for failure to comply with the Government Claims Act pursuant to CA GOVT § 910 is OVERRULED.

II.             Demurrer to 1^st Cause of action – Premises Liability – Dangerous Condition of Public Property - OVERRULED

            “[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.)

            “Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815.)

            The State cites to Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 to argue that a failure to install barriers or other safety measures does not constitute a defect in property, however Zelig dealt with a specific instance where the court found that a barrier installation would ultimately not have kept people armed with weapons away from the property as a matter of law. (Zelig, supra ,27 Cal.4th 1112, 1139 [“Finally, a barrier against the introduction of weapons cannot be comprised of a simple physical barrier, at least given current technology, but requires personnel to conduct screening, deny entrance to persons carrying weapons, and confiscate those weapons. This amounts essentially to providing police service.”].) In the present case, the issue is not whether a barrier would have protected Baber from an armed individual, and thus Zelig does not apply here.

            The State further cites to Avedon v. State of California (2010) 186 Cal.App.4th 1336  to argue in the absence of evidence relating to a “defect in the property,” a party fails to state a state a cause of action for dangerous condition of public property pursuant to section 835.” (Demurrer, p. 10.) The Court in Avendon also stated, “[w]hile in some instances a public entity may be required to alter its property to provide a physical barrier against danger presented by third parties, the Zelig court concluded that the addition of a physical barrier, by itself, would not have had any effect on the risk of harm faced by the decedent or other persons using the courthouse.” (Avendon, supra, 186 Cal.App.4th at p. 1342.) As stated above, the issue in the present case does not involve a person with a weapon where a barrier would not have protected the plaintiff, and the Avedon court does state that in some instances it may be appropriate for a public entity to provide a barrier against the dangers presented by Third Parties. (Ibid.) The State does not provide any authority stating the public entity is not required to provide a physical barrier to protect the public against an unrestrained dog, or anything similar to the unrestrained dog scenario.

            Baber pleads all the requisite elements of a Premises Liability – Dangerous Conditions of Public Property claim pursuant to Gov Code § 835. (FAC, p. 6.) Thus, the State’s Demurrer to the 1^st cause of action for Premises Liability – Dangerous Conditions of Public Property is OVERRULED.

III.           Demurrer to 2^nd Cause of Action – General Negligence - OVERRULED

            “(a) 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 or his personal representative. (Gov. Code, § 815.2.)

            “The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’ ” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

            Here, Baber pleads all the essential elements of a negligence claim. (See FAC, p. 7.) Baber alleges “Defendants failed to properly train their employees and/or supervise their staff and failed to barricade the area and/or to warn of the dangerous condition, rendering the area on said premises dangerous and resulting in serious bodily injury to the Plaintiff in the following manner.” (FAC, p. 7.) Baber has essentially plead that the act and omission of a public entity employee caused Baber injury, and thus has plead a claim pursuant to Gov Code, § 815.2.

            Thus, the State’s Demurrer to the 2^nd cause of action for General Negligence is OVERRULED.