Judge Jill Feeney, Case 22STCV13534 2022-08-05 Tentative Ruling

Judge: Jill Feeney, Case: 22STCV13534, Date: 2022-08-05 Tentative Ruling

Case Number: 22STCV13534 Hearing Date: August 5, 2022 Dept: 30

Department 30, Spring Street Courthouse

August 5, 2022

22STCV13534

Demurrer filed by Defendant City of Montebello

DECISION

The demurrer is sustained as to the first and third causes of action with leave to amend as to the third cause of action only.

If Plaintiff wishes to amend with respect to the third cause of action, the first amended complaint must be filed and served within 30 days after the date of this order.

Defendant has 30 days from the date the first amended complaint would have to be served to file an answer or other responsive pleading.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

This is an action for negligence, premises liability, and negligence per se arising from a slip and fall accident. Plaintiff Irma Macias filed her complaint against Defendants the City of Montebello and the County of Los Angeles on April 22, 2022. Plaintiff alleges she tripped and fell on an elevated piece of concrete in October 2021.

Defendant County of Los Angeles was dismissed from the action on June 15, 2022.

Defendant City of Montebello (“City”) filed its demurrer on June 8, 2022.

Summary of Arguments

Moving Arguments

City demurs to Plaintiff’s first and third causes of action for general negligence and negligence per se on the grounds that (1) the Complaint fails to state sufficient facts to constitute a cause of action against City, (2) the claims are uncertain, (3) the claims fail as a matter of law per Government Code Section 835, and (4) the claims are duplicative of the second cause of action for premises liability.

Opposing Arguments

Plaintiff’s opposition states that City’s demurrer should be denied because (1) the Complaint does allege facts sufficient to support the first and third causes of action, (2) the claims are not uncertain, (3) the Complaint contains specific facts that support the claims per Gov. Code section 835, and (4) the claims are not duplicative of the second cause of action for premises liability.

Reply Arguments

City’s reply argues Government Code section 815 relieves City from statutory liability. Additionally, Plaintiff’s claims for negligence and premises liability are duplicative because both causes of action allege negligence.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Discussion

Government Claims Act

Government Code § 811.2 broadly defines the term “public entity” to include “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.”

Under the Government Claims Act, “[a] public entity is not liable for an injury . . .” [e]xcept as otherwise provided by statute . . ..” (Gov’t Code § 815; State ex rel. Department of California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1009.)

Because all liability under the Government Claims Act is statutory, “the general rule that statutory causes of action must be pleaded with particularity is applicable.” (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) Thus, “to 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.” (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.)

There is no common law tort liability for public entities in California, including negligence. (McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, 975.)

Here, Plaintiff’s claim for negligence cannot be sustained because City is a public entity and there is no common law negligence liability for public entities in California. Accordingly, City’s demurrer is sustained as to Plaintiff’s cause of action for negligence.

Negligence per se

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.)

In order to allege a cause of action under Government Code Section 835 with a negligence per se theory of liability, Plaintiff must refer to a specific statute creating such liability. Here, in its third cause of action, Plaintiff simply refers to Government Code Section 835 which is circular.

In certain circumstances, a negligence per se theory of liability might be pursued pursuant to Government Code Section 815.6. However, such a theory must be based upon the existence of a mandatory duty imposed by law. Here, Plaintiff does not plead anything of the kind.

For this reason, the demurrer is sustained as to this cause of action as well.

Leave to Amend

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)

Here, City’s demurrer was sustained as to Plaintiff’s cause of action for negligence. Plaintiff fails to show how she could amend the Complaint to state a cause of action for common law negligence against City.

With respect to the third cause of action, essentially a Government Code Section 835 cause of action based upon a theory of negligence per se, the Court is skeptical that Plaintiff will be able to allege violation of a mandatory legal duty separate and apart from Government Code Section 835 in what appears to be an ordinary sidewalk trip and fall case. That said, in an abundance of caution, the Court will provide Plaintiff an opportunity to amend the third cause of action.