Judge: Kerry Bensinger, Case: 21STCV16850, Date: 2023-04-03 Tentative Ruling

Case Number: 21STCV16850    Hearing Date: April 3, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On May 4, 2021, plaintiff Stephen Yagman (“Plaintiff”) filed this action against defendants Eric Michael Garcetti (“Garcetti”), Bob Blumenfield (“Blumenfield”), Michael Bonin (“Bonin”), Joe Buscaino (“Buscaino”), Nury Martinez (“Martinez”), Mitch O’Farrell (“O’Farrell”), David E. Ryu (“Ryu”), Kevin Lee James (“James”), Aura Garcia (“Garcia”), Mike Davis (“Davis”), Jessica M. Caloza (“Caloza”), M. Teresa Villegas (“Villegas”), and Adel H. Hagekhalil (“Hagekhalil”) (collectively, “Defendants”) arising from a January 29, 2020 fall on a sidewalk adjacent to Venice’s Grand Canal.

On September 27, 2022, Plaintiff filed his Second Amended Complaint (“SAC”) and also amended the SAC to add the City of Los Angeles (“City”) as a Doe Defendant.  The SAC asserted causes of action for (1) common law negligence, (2) Dangerous Condition of Public Property, California Government Code Sections 815.6, 830, 835.2, 840.2, Negligence Per Se, (3) “statutory negligence” under Government Code section 835, and (4) public nuisance. 

On October 27, 2022, Defendants and City filed a demurrer to each cause of action in the SAC.  The City also demurred to the timeliness of Plaintiff’s doe amendment.  On December 8, 2022, the Court (1) sustained City’s demurrer and dismissed City from this action with prejudice, (2) overruled the demurrer to the first cause of action for common law negligence, and (3) sustained the demurrer to the second, third, and fourth causes of action with leave to amend the second cause of action only.

On January 9, 2023, Plaintiff filed the operative Third Amended Complaint (“TAC”), asserting causes of action for (1) common law negligence and (2) Dangerous Condition of Public Property, Government Code §§ 815.6, 840.2, et seq.

           On February 8, 2023, Defendants filed this demurrer to the Second Cause of Action of Plaintiff’s TAC.  Plaintiff opposes and Defendants reply.

II.      LEGAL STANDARDS

A.   Demurrer

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)  

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

A general demurrer does not lie to a part of a cause of action.  If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer.  (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1156.)  In other words, a general demurrer does not lie to attack a portion of a cause of action.  Where there is a substantive defect affecting only a portion of a claim, the proper challenge is by motion to strike.  (PPH II, Inc. v. Sup.Ct. (Ibershof) (1995) 33 Cal.App.4th 1680, 1682-1683.)

III.     DISCUSSION

A.           Meet and Confer

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)

          The Court finds the meet and confer obligation satisfied based on the declaration of defense counsel Charlynn Rawlins.  (See Rawlins Decl.)

B.           Judicial Notice

Defendants’ and Plaintiff’s request for judicial notice is GRANTED.  (Evid. Code, § 452.)

C.           Factual Allegations

The TAC sets forth the following: (1) Garcetti is the mayor of the City of Los Angeles, (2) Blumenfield and Ryu are City Council members, (3) Hagekhalil is the executive director and general manager of the Public Works Department’s Bureau of Street Services, and (4) the remainder of Defendants are members of the Board of the City Department of Public Works.  (TAC, ¶ 2.)  Plaintiff is suing each defendant in their individual and official capacity.  (TAC, ¶ 4.)

The TAC adds the following allegations to the Second Cause of Action:

“[O]n information and belief, … defendants … are liable to plaintiff for statutory negligence, pursuant to Cal. Gov’t Code § 815.6 for violation of a statutorily mandated duty to provide safe sidewalks and public areas pursuant to [Americans with Disabilities Act (ADA)] sections 403, 403.5, and 403.5.1, and Los Angeles Municipal Code Section 62.104 … and are liable for plaintiff's injuries, which were of a kind proximately caused by defendants’ failures to discharge their duties, and who did not exercise reasonable diligence to discharge their duties, to inspect and to repair the subject sidewalk, pathway, paved right of way, public area, canal embankment, buffer zone and/or setback based on their breach of their duties to maintain in a safe condition the said public areas on which plaintiff was walking, which proximately caused plaintiff to fall down and plaintiff’s injuries, which damaged plaintiff.”  (TAC, ¶ 46.)

Defendants “are liable under Government Code §840.2, et seq., as the dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of Defendants, …, and each of them, had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or Defendants, …, had the authority and it was [their] responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to [them], and Defendants …, had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition, because defendants, …, had the authority and responsibility as a public employee to inspect the property, or to see that inspections were made to determine whether the dangerous condition existed in the public property, funds, and other means, were immediately available defendants [sic], and the dangerous condition existed for a long period of time and was of such obvious nature before the date of the incident, …, that the defendants, …, in the exercise of [their] exercise of authority and responsibility with due care, should have discovered the condition and its dangerous character.” 

(TAC, ¶ 50.)

D.  The Demurrer

Plaintiff’s First Cause of Action (FCA) for Common Law Negligence against all Defendants is not at issue here.[1]  Instead, Defendants’ demurrer to and move to strike portions of the Second Cause of Action (“SCA”) for Dangerous Condition on Public Property.  The SCA alleges that the Defendants are liable for violations of Government Code sections 815.6 and 840.2. 

The TAC is subject to Demurrer, according to Defendants’ Notice, because (1) the SCA does not state facts sufficient to constitute a cause of action; (2) the Defendants are government officials and are immune from liability; (3) the SAC is barred because the Court has no jurisdiction; and (4) the SAC, which is premised upon the ADA, is without merit and precluded based upon res judicata.  (Notice of Demurrer, pg. 2.)[2]  Defendants Memorandum of Points and Authorities does not follow this outline.  Instead, properly framed, Defendants make three arguments: (1) Gov. Code Section 815.6 fails because Defendants are not a public entity and, even if the SCA could proceed against the Defendants in their official capacity, Plaintiff has not identified an operative mandatory duty triggering scrutiny pursuant to Gov. Code Section 815.6; (2) Gov. Code Section 840.2 fails because Plaintiff has failed to meet heightened pleading requirements; and (3) Defendants are immune from suit.     

1.   Government Code Section 815.6

a.    Section 815.6 Applies to Public Entities

Defendants argue that Plaintiff’s claim for statutory negligence under Government Code section 815.6 fails because the Defendants are not a public identity.  Section 815.6 provides “[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.”  (Gov. Code, § 815.6, emphasis added.)  By its very terms, Section 815.6 concerns a public entity’s liability for injury resulting from a dangerous condition on public property. 

The public entity was previously dismissed.  Nonetheless, pursuant to Gov. Code § 815.2, the public entity may be “liable for injury 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.”[3]    

                   b. Mandatory Duty

                “Under the Government Claims Act (Gov.Code, § 810 et seq.), there is no common law tort liability for public entities in California; instead, such liability must be based on statute.  (Citations omitted) One such statute is Government Code section 815.6, which provides: “Where 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.” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.)

Defendants argue Plaintiff fails to establish the requisite mandatory duty.    Plaintiff points to the American with Disabilities Act (ADA) and/or Los Angeles Municipal Code Section 62.104.

It is a question of law whether an enactment creates a mandatory duty.  (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.)  To determine whether an enactment contains a mandatory duty under Government Code section 815.6, courts have developed a three-pronged test.  First, an enactment must impose a mandatory, not discretionary, duty; second, the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and third, a breach of the mandatory duty must be a proximate cause of the injury suffered.  (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638–639 (County of Los Angeles).)  The first prong is strictly construed, and the courts will only find a mandatory duty if the enactment affirmatively imposes the duty and provides implementing guidelines.  (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.)  In fact, the inclusion of the term “shall” does not necessarily create a mandatory duty, as there may be “other factors that indicate that apparent obligatory language was not intended to foreclose a governmental entity’s or officer’s exercise of discretion.  (Id. at pp. 898–899.)  The second prong requires that the mandatory duty be designed to protect against the particular kind of injury a plaintiff suffered.  (County of Los Angeles, supra, 102 Cal.App.4th at pp. 638-639.)  A plaintiff must show the injury is one of the consequences that the legislature sought to prevent through imposing the alleged mandatory duty.  (Ibid.)  It is not enough for the enactment to confer some benefit on the class to which plaintiff belongs if the benefit is incidental to the enactment’s protective purpose. (Ibid.)  With these guiding principles in mind, we turn to Plaintiff’s “mandatory duties.”   

                                                                 i.    ADA Sections 403, 403.5, and 403.5.1

          Plaintiff alleges Defendants violated a mandatory duty to provide safe sidewalks and public areas pursuant to ADA sections 403, 403.5, and 403.5.1.  (TAC, ¶ 46.)[4]  Reference to the sections identified by Plaintiff (ADA sections 403, 403.5 and 403.5.1) fail to identify the mandatory duty as described by Plaintiff.  Sections 403, 403.5, and 403.5.1 (the “ADA Sections”) are found in Chapter 4 of the 2010 Standards for Titles II and III: 2004 Americans with Disabilities Act Accessibility Guidelines (the “ADAAG”).  The ADA Sections concern the walking surfaces of an accessible route.  Section 101.1 of the ADAAG states the following:

“This document contains scoping and technical requirements for accessibility to sites, facilities, buildings, and elements by individuals with disabilities. The requirements are to be applied during the design, construction, additions to, and alteration of sites, facilities, buildings, and elements to the extent required by regulations issued by Federal agencies under the Americans with Disabilities Act of 1990 (ADA).”

(Emphasis added.)  Pursuant to the stated purpose in Section 101.1, the ADAAG, including the ADA Sections, concern technical requirements in the design, construction, additions to and alteration of sites, facilities, buildings and elements.  By contrast, the TAC alleges “ADA 2010 section 403 mandates that in the City of Los Angeles, the minimum, clear, useable width of all walking surfaces, including for public sidewalks, is a minimum of 36 inches.  Defendants violated this by allowing encroachment, of vegetation and roots growth to narrow the pathway to significantly less than 36 inches rendering the area where plaintiff tripped and fell unreasonably dangerous and in violation of ADA 2010 Sections 403, and 403.5 and 403.5.1.”  (TAC, ¶ 12.)  As alleged in the TAC, the narrow sidewalk width is attributable to vegetation growth.  Plaintiff fails to point to any mandatory language or implementing guidelines in the ADA that require vegetation abatement by these Defendants.  

          Further, Section 101.1 makes clear that the ADAAG contemplates accessibility for individuals with disabilities.  Absent from the TAC is the allegation that Plaintiff is disabled within the meaning of the ADA. 

                                       ii.  Los Angeles Municipal Code Section 62.104

Plaintiff also alleges that Los Angeles Municipal Code section 62.104 imposes a mandatory duty on Defendants.  It does not.  Section 62.104, subdivision (b) states,

“The owner of a Lot shall maintain any Sidewalk, Driveway Approach, Curb Return or Curb on or fronting on the Lot in such condition that the Sidewalk, Driveway Approach, Curb Return or Curb will not endanger any Person or property passing thereon or violate the Americans with Disability Act.” 

(Emphasis added.)  The TAC is devoid of any allegations that Defendants are the owners of the area where Plaintiff allegedly tripped and fell.  Plaintiff does not offer any argument in opposition nor show how the deficiency may be cured by amendment.

Accordingly, the Court grants Defendants’ motion to strike the allegations related to Government Code section 815.6 without leave to amend.

2.   Government Code Section 840.2

Alternatively, Plaintiff pursues his dangerous condition claim based upon government code section 840.2.  Defendants argue the demurrer must be sustained because the SCA fails to meet the heightened pleading requirement under Government Code section 951. 

Government Code section 840.2 provides:

“An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity 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) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or

(b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. 

          Government Code section 840.4 further provides:

(a) A public employee had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 840.2 if he had actual personal knowledge of the existence of the condition and knew or should have known of its dangerous character.

(b) A public employee had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 840.2 only if the plaintiff establishes (1) that the public employee had the authority and it was his responsibility as a public employee to inspect the property of the public entity or to see that inspections were made to determine whether dangerous conditions existed in the public property, (2) that the funds and other means for making such inspections or for seeing that such inspections were made were immediately available to the public employee, and (3) that the dangerous condition had existed for such a period of time and was of such an obvious nature that the public employee, in the exercise of his authority and responsibility with due care, should have discovered the condition and its dangerous character.

Last, Government Code section 951 states, in relevant part:

“[A]ny complaint for damages in any civil action brought against a publicly elected or appointed state or local officer, in his or her individual capacity, where the alleged injury is proximately caused by the officer acting under color of law, shall allege with particularity sufficient material facts to establish the individual liability of the publicly elected or appointed state or local officer and the plaintiff's right to recover therefrom.”

A review of the TAC reveals that the allegations closely mirror the language of Sections 840.2 and 840.4.  (See TAC, ¶¶ 46-50.)  Contrary to Defendants’ contention, the TAC does allege the cause of action with sufficient particularity. 

3.   Immunity

Defendants argue that, as government officials, they are immune from suit and liability.  However, Defendants fail to present authority or persuasive argument in support of their contention.  Indeed, Defendants immunity argument is more abstract than applicable.  And Government Code section 840.2 sets forth a basis for liability.  Without more, at least at this juncture, Defendants immunity argument fails. 

IV.     CONCLUSION

Defendants’ Demurrer to the Second Cause of Action is OVERRULED.

Defendants’ Motion to Strike Plaintiff’s allegation concerning Government Code section 815.6 is GRANTED, without leave to amend.

Plaintiff is ordered to file a Fourth Amended Complaint consistent the ruling herein within fifteen (15) days.  Defendants are ordered to file a responsive pleading to Plaintiff’s Fourth Amended Complaint within fifteen (15) days of receipt of the Fourth Amended Complaint.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 3rd day of April 2023