Judge: Lee S. Arian, Case: 22STCV22072, Date: 2024-10-02 Tentative Ruling

Case Number: 22STCV22072    Hearing Date: October 2, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27  

DEMURRER

Hearing Date: 10/2/24   

CASE NO./NAME: 22STCV22072 BRANDEN MACOR v. CITY OF WEST HOLLYWOOD et al.

Moving Party: Defendant City of West Hollywood  

Responding Party: Unopposed 

Notice: Sufficient

Ruling: DEMURRER IS SUSTAINED WITH LEAVE TO AMEND

BACKGROUND

On July 8, 2022, Plaintiff filed the present complaint for dangerous condition of public property, premises liability, strict products liability, and negligence against Bird Rides, Inc., City of West Hollywood, County of Los Angeles, California Department of Transportation, Maria V. Montgomery, the MVM Evergreen Trust, and FSM Partnership. The only cause of action against the City of West Hollywood is for dangerous condition of public property. Plaintiff Branden Macor alleges that on or around July 13, 2021, he was injured while riding a Bird scooter near 8600 Sunset Boulevard, West Hollywood, CA 90069. Defendant City of West Hollywood now demurs to the present complaint on the basis that the complaint fails to allege that Plaintiff presented a government claim to the City of West Hollywood prior to filing suit and the complaint fails to allege facts with particularity as required for causes of action against public entities.

LEGAL STANDARD

A demurrer may be made to a complaint or cross-complaint on the basis that the court does not have jurisdiction over the subject matter of the cause of action in the pleading. (Code Civ. Proc., § 430.10, subd. (a); Buss v. J.O. Martin Co. (1966) 241 Cal.App.2d 123, 133; Davis v. Southern Cal. Edison Co. (2015) 236 Cal.App.4th 619, 636.) A court may lack subject matter jurisdiction over a cause of action for various reasons, including: a statutory prerequisite to bringing suit has not been satisfied. (Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th 1261)

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. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.)

At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

Pursuant to CCP § 430.41, before filing a demurrer, “the demurring party shall meet and confer in person, by telephone, … 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.” (CCP § 430.41).

ANALYSIS

On December 28, 2023, defense counsel contacted Plaintiff's counsel to discuss deficiencies in the complaint. Plaintiff's counsel granted multiple extensions to continue discussions and avoid a demurrer, with the final extension on May 10, 2024. Despite ongoing discussions, the parties could not resolve the issues. The meet and confer requirement of CCP § 430.41 is satisfied.

Claims to Public Entity

Defendant alleges that Plaintiff has not shown that the Court has subject matter jurisdiction because the complaint does not include allegations of compliance with Government Code section 945.4. Specifically, Plaintiff did not state that he presented a claim to West Hollywood before filing this lawsuit. Under Govt. Code § 945.4, failing to present a government claim to a public entity bars a plaintiff from filing a lawsuit against that entity. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 737-38.)

The Complaint states that on January 10, 2022, Plaintiff filed three separate Government Tort Claims against the City of Los Angeles, County of Los Angeles, and the California Department of Transportation. However, it does not allege whether Plaintiff filed a claim with the City of West Hollywood, whether the city rejected Plaintiff’s claims, or whether Plaintiff filed the present complaint timely after the rejection. Therefore, the Complaint fails to allege sufficient facts to sustain a cause of action for dangerous condition of public property against the City of West Hollywood. Thus, the demurrer is sustained on this basis with leave to amend, as there is a possibility for Plaintiff to cure this defect by alleging whether or not he filed a government claim with City of West Hollywood.

Allegations Not Stated with Particularity

“To state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity." (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.)

Defendant argues that the Complaint lacks specific and concrete details as required for claims against public entities. Defendant argues that the allegation in paragraph 22 of the Complaint does not make it clear whether the incident happened on a sidewalk or walkway and whether the sidewalk or walkway was uneven, broken, or deteriorated.

The Court agrees with Defendant that Plaintiff needs to specify whether the incident occurred on a sidewalk or walkway. This distinction is necessary to pinpoint the location of the displacement and is relevant to the issue of control. Public entities typically own and control sidewalks. However, the ownership and control of walkways are not as clear-cut and can vary depending on the specific location and context. Identifying whether the incident took place on a sidewalk or walkway will help determine the appropriate entity responsible for maintaining the area

The Court finds the terms "uneven," "broken," and "deteriorated" to be synonymous and a sufficient description of the dangerous condition, providing Defendant with enough information to locate and investigate the displacement.

Defendant further argues that paragraph 25 of the Complaint, which states that the scooter Plaintiff was riding, owned and/or manufactured by Defendants Bird and/or Segway, "malfunctioned and/or failed to slow down and/or stop thereby causing Plaintiff to be propelled off the scooter and fall onto the pavement and/or road," is similarly vague. The Court agrees; Plaintiff needs to state whether he fell due to hitting the displacement or because of the malfunctioning of the scooter. The complaint does not state the cause of Plaintiff’s fall with particularity.

In paragraph 33, Defendant asserts an alternative theory of liability, stating, "such that an unknown object and/or construction debris were allowed to exist and be left in disrepair. Defendants failed to barricade the area and/or to warn of the dangerous condition, rendering the area of said premises dangerous and resulting in serious bodily injury to the Plaintiff." Plaintiff needs to state with particularity the cause of his fall, whether it was due to striking an uneven displacement or because of the debris. If Plaintiff fell in part due to the debris, Plaintiff needs to allege how the debris led to the fall, which he has not in the Complaint.

Defendant finally argues that in paragraphs 33, 44, and 45 of the Complaint, Plaintiff alleges that three separate public entities and various private entities own/control the location of the incident and that Plaintiff needs to specify which entity actually controls the location at issue. The Court disagrees. Under the doctrine of less particularity, less specificity is required in pleading matters of which the defendant has superior knowledge (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028). A plaintiff “need not particularize matters presumptively within the knowledge of the demurring defendant.” (Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 858). This includes matters such as a defendant's knowledge, notice, or intent. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550). A complaint will be upheld “so long as the pleading gives notice of the issues sufficient to enable preparation of a defense.” (Id.). Plaintiff has already alleged that the incident occurred near 8600 Sunset Boulevard, West Hollywood, CA 90069, which is sufficient for Defendants to prepare a defense. Which of the public or private entities own, control, or maintain the sidewalk is a matter within Defendants' superior knowledge, and a result, the Plaintiff has met this reduced pleading standard.

In sum, Defendant failed to state every material fact with particularity, especially whether the incident occurred on a sidewalk or a walkway, and what caused Plaintiff to fall, whether it was the debris, displacement, or malfunctioning of the scooter. Thus, the demurrer is sustained on these bases with leave to amend, as the Court finds it possible for Plaintiff to cure the defects in the Complaint if leave to amend is granted. Plaintiff is grated leave to amend within 20 days.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.