Judge Kerry Bensinger, Case Number: 24STCV02433, Date: 2024-05-02 Tentative Ruling

Between 2001 and 2023, Plaintiff Kenneth W. Wright, M.D. (“Plaintiff” or “Dr. Wright”) operated a medical practice out of a building he owned on San Vicente Boulevard. Plaintiff alleges that beginning in early 2022, “a tent city was erected around Dr. Wright’s medical practice.” (FAC, ¶ 11.) The encampment presented health and safety risks. On February 4, 2023, a fire broke out at the encampment which damaged Dr. Wright’s building and surrounding properties. Prior to the fire, Dr. Wright and his staff called the Los Angeles Police Department (“LAPD”) numerous times to complain about the encampment. LAPD acknowledged the homeless encampment was illegal, but nothing was done. Finally in May 2023, the City removed the homeless encampments.

Plaintiff filed an action against the City of Los Angeles (“City” or “Defendant”) in federal court for public nuisance and dangerous condition on public property. On January 30, 2024, Plaintiff filed an identical action against the City in this court. Plaintiff dismissed the federal case on February 6, 2024.

On March 5, 2024, Plaintiff filed the operative Verified First Amended Complaint (FAC). The FAC asserts causes of action for Public Nuisance and Dangerous Condition on Public Property.

Plaintiff requests judicial notice of (1) Los Angeles Municipal Code Section 41.18 and (2) the Legislative history related to Los Angeles Municipal Code Section 41.18. The unopposed request is GRANTED. (Evid. Code, § 452, subd. (b).)

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.3d 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.)¿

“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”¿ (Code Civ. Proc., § 430.41, subd. (a).)¿ Here, defense counsel has complied with the meet and confer requirement. (See Declaration of Jessica Mariani, ¶¶ 2-5.)

The City advances three arguments in support of its Demurrer: (1) the FAC is barred by the separation of powers doctrine, (2) the FAC is barred by governmental immunities, and (2) the FAC does not state a valid claim for public nuisance or dangerous condition on public property.

Plaintiff alleges the encampment presented a “significant health and safety risk to Dr. Wright, his staff, patients, and the general public, created due to the lack of bathrooms, risk of COVID-19 spread, violence, noise, lack of access, indecent exposure, and risk of fires.” (FAC, ¶ 11.) Further, “Dr. Wright and his staff made numerous calls to the Los Angeles Police Department (hereinafter “LAPD”), … to report the continued nuisance and danger of the public sidewalks surrounding Dr. Wright’s medical building. On November 27, 2022, Dr. Wright was informed by Officer O’Brien that the LAPD was under direction not to intervene regarding the homeless encampment on the public sidewalk and the subsequent nuisance and danger it created. LAPD acknowledged the homeless encampment was illegal, but nothing was done.” (FAC, ¶ 12.)

Pointing to the foregoing allegations, the City argues the separation of powers doctrine bars Plaintiff’s claims because the relief Plaintiff seeks intrudes upon the City’s discretionary legislative and decision-making authority.

“[P]rinciples of comity and separation of powers restrain courts’ authority to order acts within the discretion of other branches of government.” (Butt v. State of California (1992) 4 Cal.4th 668, 695 (Butt).) “[U]nder the separation of powers doctrine, courts lack power to interfere with legislative action at either the state or local level.” (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, (Friends of H Street); see also California School Bds. Ass’n v. State of California (2011) 192 Cal.App.4th 770, 799 (California School Bds. Ass’n ) (“The California Constitution’s separation of powers doctrine forbids the judicial from issuing writs that direct the Legislature to take specific action, including to appropriate funds and pass legislation.”).)

A review of the FAC does not support the City’s position. Plaintiff seeks compensatory, general, and special damages according to proof. (See Prayer of FAC.) There are no requests for injunctive relief asking this court to compel the City to enforce a law or otherwise act in a specific manner. The cases upon which the City relies prove the point. (See Friends of H Street, supra, 20 Cal.App.4th at p.157 [“plaintiff filed a complaint for nuisance seeking injunctions to force the City to reduce the traffic speed and volume on H Street.”]; California School Bds. Ass’n, supra, 192 Cal.App.4th at p. 779 [“The School Districts sought several forms of relief, including: … (2) injunctive relief ….”]; Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 353 [“CONA brought four causes of action, all resting on a public nuisance theory. First, CONA sought an order to show cause as to why the foul odor should not be ordered abated as a public nuisance. Second, CONA sought injunctive relief to prevent irreparable harm from the nuisance. Third, CONA sought declaratory relief that the City violated California law by failing to abate the odor nuisance. Fourth, CONA sought a writ of mandate directing the City to comply with California law by remedying the odor nuisance.”]; Jones v. City of L.A. (9th Cir. 2006) 444 F.3d 1118, 1120, vacated by settlement in Jones v. City of L.A. (9th Cir. 2007) 505 F.3d 1006 [“Appellants seek limited injunctive relief from enforcement of the ordinance during nighttime hours ….”].) In short, Plaintiff does not ask this court to violate any longstanding separation of powers principle by way of injunctive relief.

The City next argues the FAC is barred by various governmental immunities codified at Government Code sections 815.2,[2] 818.2, 820.2,[3] and 845[4]. The court agrees, at least as with respect to Government Code section 818.2. And Government Code section 818.2 is dispositive.

Section 818.2 provides, “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” Here, Plaintiff alleges that he spoke with an Officer Ian O’Brien who specifically informed Plaintiff “that the LAPD was under direction not to intervene regarding the homeless encampment on the public sidewalk and the subsequent nuisance and danger it created. LAPD acknowledged the homeless encampment was illegal, but nothing was done.” (FAC, ¶ 12.) As alleged, Plaintiff’s claims are based on the City’s decision not to enforce a law. Section 818.2 forecloses liability for such an act or omission.[5] Plaintiff’s opposition does not address the preclusive effect of Section 818.2.

The immunity afforded by Section 818.2 applies to discretionary functions. The City argues it is insulated from liability for discretionary decisions in addressing the homelessness crisis. “The immunity afforded by Government Code sections 818.2 and 821 attaches only to discretionary functions.” (Nunn v. State of California (1984) 35 Cal.3d 616, 622.) “A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.)

Of course, discretionary functions are different from mandatory duties. Government Code section 815.6 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.”

To establish a mandatory or ministerial duty, the enactment at issue must be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.” (Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5th 292, 305–06 (Hacala), citing Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498 (cleaned up) (italics in original).)

Although not argued (or pleaded in the FAC) as a statute which imposes a mandatory duty, Plaintiff cites the legislative history of Los Angeles Municipal Code section 41.18 for the proposition that the City was “aware of the likelihood that the homeless would utilize public sidewalks for their encampments and the dangers posed by this issue.” (Opp., p. 8.) Section 41.18 prohibits sleeping or storing personal items on a street or sidewalk. Absent, however, from Section 41.18 is any language that can be reasonably be read to impose a mandatory duty on the City to remove homeless encampments on sidewalks. Section 41.18 does not impose such a duty on the City and, as a result, Plaintiff’s cannot hold the City liable based upon such a theory. Indeed, Plaintiff does not point to a statute that imposes a mandatory duty. Plaintiff’s claims are thus barred by Government Code section 818.2.

Alternatively, even if Section 818.2 does not apply, Plaintiff’s claims do not state valid claims for nuisance or dangerous condition of public property.

Civil Code section 3479 defines “nuisance” as “[a]nything which is injurious to health, including, but not limited to … an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” A “public nuisance” is “‘one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.’ (Civ. Code, § 3480.)” (Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358–59.) To maintain a cause of action for public nuisance, a plaintiff must plead “the existence of a duty and causation.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542.) “Causation is an essential element of a public nuisance claim. A plaintiff must establish a “connecting element” or a “causative link” between the defendant's conduct and the threatened harm.” (Id. at p. 359.) “Causation may consist of either ‘(a) an act; or [¶] (b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the public interest.’ [Citations.]” (Id.)

The City argues that Plaintiff does not allege a duty or causation. The court agrees. As discussed above, Plaintiff does not allege any statute which imposes a mandatory duty to remove the homeless encampments on public property. Having not alleged the existence of a duty, Plaintiff likewise fails to establish that the City’s failure to act caused Plaintiff’s injury.

To establish a claim of dangerous condition on public property, a plaintiff must prove: (1) that the defendant owned or controlled the property; (2) that the property was in a dangerous condition at the time of the injury; (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; (4) that defendant had notice of the dangerous condition for a long enough time to have protected against it; (5) that plaintiff was harmed; and (6) that the dangerous condition was a substantial factor in causing plaintiff’s harm.¿ (Gov. Code, § 835; CACI No. 1100.)¿¿¿¿“Dangerous condition” means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).)

Section 835.2 continues, and provides in pertinent part: “(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. [¶] (b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character....” (Gov. Code, § 835.2.)

The City argues Plaintiff cannot establish that the public sidewalk was itself a dangerous condition. The court agrees. “A public entity may be liable under Government Code section 835 for failing to take protective measures to safeguard the public from a dangerous condition of the property itself; however, when the danger at issue is third-party conduct, liability attaches only if the alleged physical condition of the property “increased or intensified” the risk of misconduct.” (Hacala, supra, 90 Cal.App.5th at p. 308, citing Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1137 (italics in original).)

Here, Plaintiff identifies the dangerous condition as the homeless encampment and the persons inhabiting the encampment. There are no allegations describing the condition of the sidewalk itself. As such, Plaintiff is describing, at most, harmful third-party conduct. The dangerous condition of public property claim is deficient.

Plaintiff opposes the result on the grounds that “the question of whether the homeless presence and/or encampments . . . could easily be seen as a dangerous condition and therefore should be treated as a question of fact for the jury to decide.” (Opp., p. 8.) The cases cited by Plaintiff, however, favor the City’s arguments, not Plaintiff’s. (See Cole of Town of Los Gatos (2012) 205 Cal.App.4th 749, 755 [in wrongful death action from a car accident, plaintiff alleged that the defendant town failed to provide and/or maintain adequate lane channelization, provide protective barriers, curb, or bollards, among other things]; see also Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1106 [concerning whether a magnolia tree planted in the center median was a dangerous condition in a negligent driving case].) Without any allegations describing a dangerous condition of the property itself, Plaintiff essentially seeks to hold the City liable for third-party conduct.

Based on the foregoing, the City’s Demurrer to the FAC is SUSTAINED, leave to amend is granted. Plaintiff shall have twenty days from the date of this Order to file a First Amended Complaint.

[1] The court recognizes that governmental immunity is somewhat intertwined with the separation of powers doctrine. “The immunity principle is rooted in the separation of powers doctrine, that the judicial branch should not interfere in the discretionary decisions of the Legislature or the executive branch.” (Fuller v. Department of Transportation (2001) 89 Cal.App.4th 1109, 1117 (Fuller).) However, the court need not veer into this intersection because the City’s immunity argument is distinct and independent.

[2] Section 815.2 provides: “(a) 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. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Emphasis added.) Contrary to the City’s position, Section 815.2 does not bar Plaintiff’s claims. By the plain language of Section 815.2, the City may be liable if so provided by statute. The nuisance claim (Civ. Code § 3479) and claim for dangerous condition of public property (Gov. Code § 835) are such statutes. “[T]he California Supreme Court has held Civil Code section 3479 is a statute that provides liability against public entities which maintain nuisances.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 103 (Paterno), citing Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 937.) Further, “the act provides liability for a dangerous condition of public property.” (Paterno, at p. 103, citing Gov. Code, § 835.)

[3] Section 820.2 provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Emphasis added.) Section 820.2 does not bar Plaintiff’s claims for the same reason as Section 815.2 Plaintiff’s claims are provided by statute. Section 820.2 is unavailing to the City for the further reason that it specifically confers immunity to a public employee. The Act “generally affords a public employee personal immunity from suit when the act or omission for which recovery is sought resulted from ‘the exercise of the discretion vested in him.’ (§ 820.2.) This ‘discretionary act’ immunity extends to ‘basic’ governmental policy decisions entrusted to broad official judgment.” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 976.) Here, Plaintiff brings this action against the City only.

[4] Section 845 provides, in relevant part: “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” This immunity does not bar because Plaintiff’s allegations, fairly construed, are that the City did nothing to address the homeless encampment despite receiving multiple reports of the nuisance and dangerous condition the encampment created. (FAC, ¶ 12.) Plaintiff does not allege a failure to provide police protection service, sufficient or otherwise. (See Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 800 [“In the case at bar, plaintiffs are not alleging expressly that defendant failed to provide “police protection services.” Plaintiffs' allegations, fairly construed, are that defendant failed in its duty to “provide everything necessary” for plaintiffs' “safe carriage.” (Civ. Code, § 2100.) This duty is not the functional equivalent of a duty to provide guards riding shotgun on defendant's buses. Something more, something less or something altogether different may be necessary depending on the circumstances. There are a number of steps defendant might take to help keep passengers safe from crime on board its buses.”].)

[5] And unlike the governmental immunities provided at Sections 815.2 and 820.2, Section 818.2 does not contain the “except as provided by statute” clause. (See Esparza v. County of Los Angeles (2014) 224 Cal.App.4th 452, 462 [“…the immunity conferred under section 818.2 has no limiting language. It is an absolute immunity rather than a conditional one.”].)