Judge: Kerry Bensinger, Case: 20STCV29024, Date: 2023-02-02 Tentative Ruling
Case Number: 20STCV29024 Hearing Date: February 2, 2023 Dept: 27
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR
THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
|
Plaintiff(s), vs. CITY OF LOS ANGELES, COUNTY OF LOS
ANGELES, CALTRANS, and DOES 1-25, INCLUSIVE,
Defendant(s). |
) ) ) ) ) ) ) ) ) ) ) ) |
[TENTATIVE] ORDER RE: DEMURRER TO
COMPLAINT AND MOTION TO STRIKE
Filed: July 31, 2020 Dept.: 27 1:30pm February 2, 2023 |
DEMURRER
I. BACKGROUND
Factual Background -
Adam Williams (plaintiff) commenced this
action on July 31, 2020, by suing City of Los Angeles, County of Los Angeles,
CalTrans, and Does 1-25 (collectively, defendants) for (1) premises liability
and (2) general negligence (See Complaint, p. 4-5).
Plaintiff alleges that July 17, 2019, he
was riding his bicycle northbound on Lincoln Boulevard, at the intersection of
Lincoln Boulevard and Fiji Way (the premises) when due to defendant’s
negligence, he fell off his bicycle after coming into contact with a dangerous
condition (Ibid.). Plaintiff alleges that he sustained injuries and
damages, and that each defendant is liable.
Procedural Background –
After commencing this suit,
plaintiff attempted to file three amended complaints, each of which was
rejected because no leave of court to amend was granted (See Notice of
Rejection of Electronic Filing on (1) 8/19/2022, (2) 8/19/2022, and (3)
1/24/2023). On January 6, 2023, defendant filed the Defendant’s Notice of
Demurrer and Demurrer to Plaintiff’s Complaint; Memorandum of Points and
Authorities in Support Thereof; Declaration of Paul M. Dipietro (Demurrer). Defendant
additionally filed a Defendant’s Notice of Motion and Motion to Strike Portions
of Plaintiff’s Complaint; Memorandum of Points and Authorities in Support
Thereof; Declaration of Paul M. Dipietro (Motion to Strike.).
Plaintiff has not filed an opposition.
II. LEGAL STANDARD OF A DEMURRER
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 by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the
pleadings alone and not the evidence or other extrinsic matters. (SKF
Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore,
it lies only where the defects appear on the face of the pleading or are
judicially noticed. (Id.) 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, 147 Cal.App.4th at 747.)
III. ANALYSIS
First Cause of
Action – Premises Liability
“The elements of a cause of action for
premises liability are the same as those for negligence: duty, breach,
causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220
Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the
premises and the attendant right to control and manage the premises.” (Kesner
v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)
Plaintiff has not stated a cause
of action
Here, plaintiff alleges that
defendant breached the duty to maintain the premises in a safe manner, and that
this breach caused a dangerous condition which caused plaintiff to fall off his
bicycle and sustain injuries (See Complaint, ¶ Prem. L-2). However, as defendant
points out in the Demurer, nowhere in the complaint does the plaintiff expand
on the nature of the dangerous condition, how it caused him to fall off of his
bicycle, nor what injuries he sustained. (Demurer, p. 2, see also Miklosy v.
Regents of University of California (2008) 44 Cal.4th 876, 899) The facts
as alleged are insufficient to constitute a cause of action for premises
liability.
Second Cause of
Action – General Negligence
In order to
state a claim for negligence, Plaintiff must allege the elements of (1) “the
existence of a legal duty of care,” (2) “breach of that duty,” and (3)
“proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC
(2014) 228 Cal.App.4th 664, 671.) Put simply, plaintiff needs to show duty, breach, causation,
and damages.
Plaintiff has not stated a cause
of action
Here, plaintiff alleges the same
facts in the first cause of action. The deficiency is the same. In addition to
not pleading sufficient facts to constitute negligence, defendant correctly
points out that absent a statute, common law negligence cannot be maintained
against a public entity (See Miklosy v. Regents of University of California
(2008) 44 Cal.4th 876, 899). Plaintiff has not filed an opposition.
Therefore, as to the first cause of
action, premises liability, the demurrer is SUSTAINED. As to the second
cause of action, general negligence, the demurrer is SUSTAINED.
Leave
to Amend
Leave to amend
must be allowed where there is a reasonable possibility of successful
amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court
shall not “sustain a demurrer without leave to amend if there is any reasonable
possibility that the defect can be cured by amendment”] As to the first cause
of action, there may be a reasonable possibility of successful amendment. The
court notes that plaintiff has made three faulty amendments, however, the only
reasons the amendments were rejected was because plaintiff did not properly
seek leave from the court. Further, in their moving papers the defendant
acknowledges that the plaintiff should be given leave to amend.
In conclusion,
as to the first cause of action, premises liability, the demurrer is SUSTAINED WITH LEAVE TO AMEND. However, as to
the second cause of action of general negligence, because common law negligence
is barred against a public entity absent statute, leave for the second cause of
action is SUSTAINED WITHOUT LEAVE TO AMEND.
MOTION TO STRIKE
I. LEGAL STANDARD
A motion to
strike lies either (1) to strike any irrelevant, false, or improper matter
inserted in any pleading; or (2) to strike any pleading or part thereof not
drawn or filed in conformity with the laws of this state, a court rule or order
of court. (CCP § 436.)
“A motion to strike does not lie to attack
a complaint for insufficiency of allegations to justify relief; that is a
ground for general demurrer.” (Pierson v. Sharp Memorial
Hospital, Inc. (1989) 216 Cal.App.3d 340,
342; see also Warren v. Atchison, T. & S. F. Ry.
Co. (1971) 19 Cal.App.3d 24, 41 [the grounds that the allegations were
insufficient as a matter of law to constitute the cause of action were grounds
for demurrer and were not proper grounds for a motion to strike].) “[A]
motion to strike is generally used to reach defects in a pleading which are not
subject to demurrer.” (Id, at p. 342.)
II. DISCUSSION
Plaintiff
did not file an opposition to the Motion to Strike. Given the foregoing, the Motion to strike is
moot and denied on that basis.
CONCLUSION
The Demurrer is SUSTAINED as to the
first cause of action with leave to amend.
Plaintiff
is ordered to file and serve her Second Amended Complaint within 30 days of
this ruling.
Defendants
are ordered to file and serve their responsive pleading within 30 days of
service of the Second Amended Complaint.
The
Demurrer is SUSTAINED as to the second cause of action without leave to amend.
The
Motion to Strike is DENIED.
DATED: February 2, 2023
___________________________
Hon.
Kerry Bensinger
Judge
of the Superior Court