Judge: Jill Feeney, Case: 22STCV13534, Date: 2022-10-26 Tentative Ruling
Case Number: 22STCV13534 Hearing Date: October 26, 2022 Dept: 30
Department 30, Spring Street Courthouse
October 26, 2022
22STCV13534
Demurrer filed by Defendant City of Montebello
DECISION
The demurrer is overruled.
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.
On August 5, 2022, the Court sustained Plaintiff’s demurrer with leave to amend.
On September 2, 2022, Plaintiff filed a First Amended Complaint.
On September 19, 2022, City filed another demurrer.
Summary
Moving Arguments
City demurs to Plaintiff’s cause of action for 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 claim is uncertain, and (3) the claim fails as a matter of law per Government Code Section 835.
Opposing Arguments
Plaintiff opposes City’s demurrer on the grounds that Plaintiff’s allegations against City are sufficient to support a cause of action for negligence per se. Plaintiff argues the second cause of action for negligence per se is properly pled under Montebello Municipal Code section 12.04.480.
Reply Arguments
On reply, City argues that its demurrer should be sustained because negligence per se is not a separate cause of action.
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
The Court previously sustained City’s demurrer on the grounds that Plaintiff failed to allege a violation of a mandatory legal duty separate and apart from Government Code Section 835. Plaintiff now alleges that a negligence per se theory of liability may be pursued pursuant to Government Code Section 815.6 based upon a violation of Montebello Municipal Code section 12.04.480.
Government Code Section 815.6 states: “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” Application of this provision requires that the enactment be obligatory, creating a mandatory duty on the public entity. (Haggis v. Los Angeles (2000) 22 Cal.4th 490, 498.)
The Municipal Code reads as follows in the relevant section.
12.04.480 - Damage caused by tree roots—Responsibility for repair.
A. Responsibility For Repair. The owner of any property on which is situated a tree, not in public right-of-way, which causes an adjacent city-owned sidewalk to become cracked, uplifted or depressed due to growth of roots or other material below or next to the sidewalk shall be responsible for repair of the damaged sidewalk and, if necessary, removal of the tree.
B. Notification of City Personnel. The city department responsible for maintenance and repair of sidewalks, when aware of such a condition, shall notify the property owner of the requirement to repair the sidewalk removal of roots or other cause of damage and, if necessary, either removal of the tree or execution and recordation of an unsubordinated covenant in a form approved by the city attorney indemnifying and holding the city harmless from any injury or damage caused by the tree, including weakening of the tree due to root removal.
C. Repair by City—Fee. If following notification by the appropriate city department, the property owner fails to correct the condition within the time specified in the notice, the city may repair the sidewalk and take all necessary actions to correct the condition. The property owner shall pay for the cost of repair by payment of a fee sufficient to cover the costs incurred, including salary and administrative costs.
Here, Defendant fails to address Plaintiff’s claim under Government Code Section 815.6, which is the claim made here. Defendant does not cite to caselaw indicating that a Plaintiff may not pursue liability under both Government Code Section 815.6 and Government Code Section 835 if warranted by the facts. Nor does Defendant argue why a cause of action has not been properly alleged under Section 815.6. For this reason, the demurrer is overruled.
