Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV01605, Date: 2023-11-07 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV01605, Date: 2023-11-07 Tentative Ruling

Defendant The People of the State of California, acting by and through the Department of Transportation (“Caltrans”) demurs to the claims for negligence and premises liability alleged in Plaintiff Rafael Moreno Fregoso (“Plaintiff”)’s complaint on the ground that Caltrans’ liability is based only in statutory law, and Plaintiff has not sufficiently alleged a statutory basis for liability, Plaintiff cannot allege a common law or non-statutory claim against Caltrans, and Caltrans cannot be liable based upon a theory of respondeat superior.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

To state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)

Plaintiff has not sufficiently alleged a statutory basis for liability here. Plaintiff provides a list of Government Code provisions without describing how they would support liability here, instead asking the Court and Caltrans to determine the basis for such liability, which is improper, particularly because a “plaintiff must plead facts sufficient to show his cause of action lies outside the breadth of any applicable statutory immunity,” and “[h]e must plead with particularity every fact essential to the existence of statutory liability.” (Keyes v. Santa Clara Valley Water District (1982) 128 Cal.App.3d 882, 886, quotation marks, brackets, and comma omitted.) Further, none of the cited statutory provisions appear to apply here.

Government Code section 820, subdivision (a), merely imposes liability on a public employee to the same extent a private person would be liable, and Plaintiff has failed to state any liability as to a specific employee of Caltrans. Insofar as Plaintiff relies on Government Code section 815.2 as allowing liability, this statute provides only that “[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,” and, notably, “[e]xcept 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.” Plaintiff states no liability of any specific employee. As to Government Code section 815.4, Plaintiff has failed to state the specific act or omission of a specific independent contractor of Caltrans which would support imposing liability on Caltrans if it were a private person. As to Government Code section 815.6, Plaintiff has failed to state a specific mandatory duty imposed on Caltrans by an enactment that is designed to protect against the risk of a particular kind of injury. Government Code section 895.2 merely provides that “[w]henever any public entities enter into an agreement, they are jointly and severally liable upon any liability which is imposed by any law other than this chapter upon any one of the entities or upon any entity created by the agreement for injury caused by a negligent or wrongful act or omission occurring in the performance of such agreement,” and Plaintiff provides no allegations to compel a conclusion that Caltrans may be liable based upon another entity’s liability. Government Code section 830 simply defines the terms “dangerous condition,” “protect against,” and “property of a public entity.”

Government Code section 835 provides that “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property 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) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” Plaintiff alleges only that Caltrans was negligent in its use or maintenance of Metro Line 720 on Wilshire Boulevard between Westwood Boulevard and Barrington Avenue, but he fails to describe the condition of the roadway to allow the trier of fact to conclude the roadway was in a dangerous condition, and providing a list of possible issues does not suffice where Plaintiff is required to allege a specific basis for government liability. (See Compl. ¶ 29.) Further, it is not clear whether Plaintiff alleges that an employee created the dangerous condition or that Caltrans had notice of the dangerous condition because Plaintiff provides only conclusory statements as to both. (See Compl. ¶¶ 29-32.) Further, Government Code section 840 provides that “a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.” Without allegations to describe why Caltrans may be liable despite the immunities described herein, Plaintiff has not sufficiently alleged a statutory basis for liability against Caltrans.