Judge Kerry Bensinger, Case Number: 23STCV02454, Date: 2023-05-25 Tentative Ruling

On February 3, 2023, Plaintiff, Valarie Zayas, filed this action on a Judicial Council Form against Defendants, City of Los Angeles (“City”) and County of Los Angeles for (1) General Negligence and (2) Premises Liability arising out of a February 5, 2022 trip and fall over a damaged and uneven portion of the sidewalk on Defendants’ premises.

On April 6, 2023, City filed this demurrer to each cause of action of Plaintiff’s Complaint for failure to allege facts sufficient to state a claim. City also moves to strike portions of Plaintiff’s Complaint.[1]

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿ On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿ An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.¿ (Code Civ. Proc., § 431.10, subd. (b).)¿ The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.¿ (Code Civ. Proc., § 437.)¿

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.”¿ (Code Civ. Proc., § 435.5, subd. (a).)¿ If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.¿ (Code Civ. Proc., § 435.5, subd. (a)(3).)¿

Defense counsel has complied with the meet and confer requirement. (Declaration of Carol Attarian.)

Plaintiff was lawfully on Defendants’ premises, located at or near S. Western Ave. by W. 38th Pl., Los Angeles, CA 90062, when suddenly and without notice, Plaintiff tripped and fell over a damaged and uneven portion of the sidewalk that presented a dangerous condition. Defendants breached their duty to Plaintiff by failing to address, alleviate, remove and/or remedy the dangerous condition on Defendants’ premises, and by failing to warn people, including Plaintiff, of the presence of such a dangerous condition, despite having adequate time and notice to do so. This conduct by Defendants, and each of them, caused Plaintiff to suffer severe injuries for which she received reasonable and necessary medical care and treatment. The uneven sidewalk pavement created a dangerous condition. Plaintiff is informed and believes and thereon alleges that the sidewalk pavement was raised for a sufficient amount of time so that the entity in charge of the area knew, or should have known, that the pavement was uneven with sufficient time to correct the dangerous condition, and an exception to immunity under Gov. Code §§815.2, 815.4, 815.6, 820, 830, 835, 840.2, inter alia.

Plaintiff also selects “Count One—Negligence” to indicate that doe defendants negligently owned, maintained, managed and operated the described premises, and “Count Three—Dangerous Condition of Public Property” to indicate that City owned the public property on which a dangerous condition existed.

1) Defendants so negligently owned, operated, maintained, entrusted, and/or controlled the subject premises.

2) Due to these acts and/or failures to act, of the Defendants, their agents, and/or employees, Defendants, and each of them, are liable for Plaintiffs’ injuries. Furthermore, the public entity Defendants are liable under the Government Code, including inter alia, §§ 815.2, 815.4, 815.6, 820, 830, 835, and/or 840.2, for the dangerous condition that existed.

3) Defendants owed Plaintiff a legal duty or duties. Defendants breached their duty or duties to Plaintiff.

4) As a result, Defendants actually and proximately caused the Plaintiff personal injuries and damages in an amount according to proof at trial.

5) Plaintiff is further informed and believes and thereon alleges that Defendants were subject to and violated, ADA, California Health & Safety Codes, building codes, and/or ordinances and these violations actually and legally caused Plaintiff's damages, the occurrence resulting in the damages was of a nature that the regulation was designed to prevent and Plaintiff was among the class of persons for whose protection the regulation was adopted.

6) By reason of the foregoing, Defendants, and each of them, are liable for, and Plaintiff is entitled to recover, Plaintiff’s general, special, actual, and compensatory damages, including but not limited to, Plaintiff's necessary medical and related expenses, past, present and future lost earnings, loss of future earning capacity, as well as mental, emotional, and physical pain and suffering, in an amount according to proof at trial.

“[A] public entity is not liable for injuries except as provided by statute (§ 815) and … section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. ‘[T]he intent of the [Government Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.’ [Citation.]” (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.)

City argues that Government Code section 835 is the exclusive statutory basis upon which a public entity may be found liable for alleged injuries caused by a dangerous condition. Because the allegations make clear that Plaintiff’s claims are predicated solely on the existence of a dangerous condition of public property, City seeks an order striking any and all references to the Government Code (with the exception of Government Code section 835), California Streets and Highways Code, California Health & Safety Code, and the Americans with Disabilities Act (ADA) from the Complaint.

Plaintiff’s opposition, directed at City’s demurrer and motion to strike, does not squarely address City’s arguments. Instead, Plaintiff contends the motion should be denied because she has adequately pled City’s liability under Government Code sections 815.2, 815.4 and 815.6.

Contrary to Plaintiff’s contention, the Complaint is deficient. Section 815.2 states: “A public entity is liable for injury proximately 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.” Section 815.4 states: “A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. And last, section 815.6 states: “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.” Plaintiff does not allege any facts to show that an employee or independent contractor of City acted or failed to act in a manner that would give rise to a cause of action against City. Nor does Plaintiff allege with specificity the statutes which impose a mandatory duty upon City to maintain the sidewalks. (See de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 247 [“[T]he statutory framework requires, as a condition to the injured party’s recovery on a direct liability theory against a governmental agency, that the injured party identify a specific statute declaring [the entity] to be liable, or at least creating some specific duty of care” (quotations omitted)].) Plaintiff’s reference to ADA sections 302.2 and 303.3, various California Streets and Highway Code sections, and Los Angeles Municipal Code sections 62.104, 5.121.12, and 6.297[2] in her opposition do not direct a different result. These code sections are not specifically alleged in the Complaint.

As City has argued, Plaintiff’s Complaint arises from injuries she sustained when she “tripped and fell over a damaged and uneven portion of the sidewalk that presented a dangerous condition”. As such, Government Code section 835 is applicable here and delineates the “exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” (Metcalf, supra, 42 Cal.4th at p. 1129.) Plaintiff has not alleged sufficient facts to impose liability on City based upon Sections 815.2, 815.4, and 815.6. Accordingly, City is entitled to an order granting its motion to strike as to those Government Code sections.

City is also entitled to an order granting its motion as to Government Code sections 820, 830, and 840.2. Government Code sections 820[3] and 840.2[4] relate to a public employee’s liability and cannot serve as additional bases to impose liability against City. Government Code section 830 merely defines the term, “dangerous condition”; it, too, is not an independent statutory basis for liability.

Plaintiff Valarie Zayas is ordered to file and serve a First Amended Complaint in compliance with this Order within 30 days of this ruling.

Defendant City of Los Angeles is ordered to file and serve their responsive pleading within 30 days of service of the First Amended Complaint.¿

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.

[1] City argues Plaintiff failed to allege the appropriate statutory basis for her allegations despite the numerous statutory grounds cited. Because this is a dangerous conditions case, City argues the appropriate statutory ground is Gov. Code section 835, and not Gov. Code sections 815.2, 815.6, 820, 830, and 840.2. Rightly so. However, Plaintiff cites Gov. Code section 835 as a basis for her Complaint. A general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 1003 (Werdegar, J., concurring).) City concedes that Plaintiff’s causes of action are sufficiently alleged under Government Code section 835. A motion to strike, and not a demurrer, is the proper vehicle for the relief City seeks. As City has also filed a motion to strike the very Government Code sections with which it takes issue (among other statutory provisions alleged in the Complaint), the Court considers City’s motion to strike.

[2] See Opposition, pp. 7, 10-11.

[3] Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person. (Gov. Code, § 820, subd. (a).)

[4] 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.