Judge Kerry Bensinger, Case Number: 22STCV03287, Date: 2023-08-15 Tentative Ruling

Judge: Kerry Bensinger, Case: 22STCV03287, Date: 2023-08-15 Tentative Ruling

Case Number: 22STCV03287 Hearing Date: August 15, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: August 15, 2023 TRIAL DATE: November 15, 2024

CASE: Kathryn Lewis v. Zoe Dimme-Alexeff, et al.

CASE NO.: 22STCV03287

DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY: Defendant The State of California, acting by and through the Department of Transportation

RESPONDING PARTY: Plaintiff Kathryn Lewis

On January 27, 2022, Plaintiff, Kathryn Lewis, filed this action against Defendants, Zoe Dimmmel-Alexeff (“Dimmel-Alexeff”), Alexander Alexeff, USA Triathlon California, Malibu Triathlon Productions, LLC, Super League Holdings PT, LTD, City of Malibu, County of Los Angeles, State of California, State of California Highway Patrol, Total Barricade Services, and State of California, acting by and through the Department of Transportation (“Caltrans”), for injuries sustained in a cyclist vs. motor vehicle incident during a triathlon event. Plaintiff asserts causes of action for (1) General Negligence, (2) Automobile Negligence, (3) Negligent Act or Omission of Public Entity or Employee, (4) Premises Liability, and (5) Dangerous Condition on Public Property. In relevant part, the First, Third, Fourth, and Fifth Causes of Action are asserted against Caltrans.

On June 5, 2023, Caltrans filed this demurrer to the First and Fourth Causes of Action of the Complaint.

Plaintiff has filed an Opposition. Caltrans has not filed a Reply.

Factual Background

The Complaint alleges that on September 26, 2021, Plaintiff was participating in the Malibu Triathlon which was organized and managed, in part, by Caltrans. Portions of the Pacific Coast Highway were partially blocked and designated for bicycles competing in the event. Dimmel-Alexeff was operating her car in one such portion of the highway when she attempted to make a U-turn and struck Plaintiff. At the time of the incident, Plaintiff was riding her bicycle.

II. LEGAL STANDARD FOR 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.)¿¿

III. DISCUSSION

A. Meet and Confer

Defense counsel has complied with the meet and confer requirement.¿ (See Declaration of Sevana Ohanian.)

B. Analysis

“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. (Guzman v. County of Monterey¿(2009) 46 Cal.4th 887, 897.)

Here, Caltrans argues the demurrer should be sustained as to the First Cause of Action for Negligence and Fourth Causes of Action for Premises Liability because these claims are based on common law. As such, Caltrans, as a public entity, cannot be held liable. The Court agrees. The First and Fourth Causes of Action are common law causes of action.

Plaintiff argues the Complaint sufficiently pleads Caltrans’ liability pursuant to applicable statutes. Specifically, the Complaint alleges Caltrans’ statutory liability based on Government Code sections 815.2, 820, 830.8, 835, and 840.2. (See Complaint, ¶ 36.) However, this allegation is set forth as part of the Third Cause of Action for Negligent Act or Omission of Public Entity or Employee. The Complaint also bases the Fifth Cause of Action for Dangerous Condition of Public Property upon Government Code section 835. These are well-pleaded causes of action. However, none of the foregoing statutory provisions are alleged in support of the causes of action for Negligence and Premises Liability.

A review of the premises liability claim helps to illustrate the deficiency. The Complaint alleges “defendants ... negligently failed to take steps to either make the condition [i.e., the traffic for the bicycle course for the Malibu Triathlon] safe, prevent the condition from being concealed, prevent the condition from being created, or warn the plaintiff and others of the dangerous condition ....” (Complaint, ¶ 45.) However, as stated by the California Supreme Court in Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, “section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) Even if the Court were to read the allegations of Government Code section 835 as supportive of the Fourth Cause of Action for premises liability, the premises liability claim would be duplicative of the Fifth Cause of Action for Dangerous Condition of Public Property.

In sum, the demurrer is sustained.

IV. CONCLUSION

The demurrer to the First and Fourth Causes of Action of the Complaint is sustained. Leave to amend is denied.

Caltrans is ordered to file and serve their Answer to the remaining portions of the Complaint within 10 days of this order.

Moving party to give notice, unless waived.

Dated: August 15, 2023 ___________________________________

Kerry Bensinger

Judge of the Superior Court

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.