Judge Lisa K. Sepe-Wiesenfeld, Case Number: 24SMCV00726, Date: 2024-09-04 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 24SMCV00726, Date: 2024-09-04 Tentative Ruling

Defendant Christensen Brothers General Engineering, Inc.’s Demurrer to Plaintiff’s Complaint is SUSTAINED with thirty (30) days leave to amend as to the first cause of action and SUSTAINED without leave to amend as to the third, fourth, fifth, and sixth causes of action.

“[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 (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

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.)

Defendant Christensen Brothers General Engineering, Inc. (“Defendant”) argues that its work was performed according to a contract with a public entity such that Plaintiff Cyrus Haroonian (“Plaintiff”)’s claims against it are barred. In the complaint, Plaintiff alleges that Defendant’s work was “signed and approved by the City,” and Defendant’s work was performed “under the scope and plans that were approved by the City.” (Compl. ¶¶ 12, 29.) Plaintiff also alleges that Defendant was “a highway contractor doing work on a public highway or street.” (Compl. ¶ 14.) The general rule is that “[o]ne who contracts with a public body for the performance of public work is entitled to share the immunity of the public from liability for incidental injuries necessarily involved in performance of the contract, where he is not guilty of negligence,” but “whatever immunity the state or its political subdivisions may enjoy from liability for negligence does not extend to injuries proximately resulting from the contractor’s negligence in performance of the work contracted for.” (Gruner v. Barber (1962) 207 Cal.App.2d 54, 59-60.)

The basis for liability against Defendant is not clear as alleged, i.e., did Defendant follow plans issued by the City of Los Angeles, or did it deviate from those plans in some way, and would the City of Los Angeles have been liable for its conduct despite the general rules of governmental immunity? Government Code section 815, subdivision (a), provides that “[e]xcept as otherwise provided by statute: [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” It is well established 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.) Accordingly, Defendant’s demurrer to the first cause of action is SUSTAINED with thirty (30) days leave to amend.

Vehicle Code section 21367 makes it unlawful to disobey the instructions of a person controlling and directing traffic or to fail to comply with the directions of warning signs, lights, or other control devices provided for the regulation of traffic. Plaintiff alleges that Defendant violated these provisions of the Vehicle Code by creating a dangerous condition with its placement of concrete dividers (Compl. ¶ 48), but there is no basis to conclude that such conduct would fall within the purview of Vehicle Code section 21367, and there is no basis to conclude that amendment would cure this deficiency. Thus, Defendant’s demurrer to the third cause of action is SUSTAINED without leave to amend.

Government Code section 835 states 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 pleads only that Defendant is a highway contractor, not a public entity (Compl. ¶ 55), Plaintiff provides no further facts in opposition to the demurrer, and there is no basis to conclude that amendment would cure this deficiency. Accordingly, Defendant’s demurrer to the fourth cause of action is SUSTAINED without leave to amend.

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Plaintiff alleges that an individual exited a vehicle with the name Christensen on its door at the site of the incident and raised his fist to attack Plaintiff, and this conduct, as well as the placement of concrete dividers, caused Plaintiff emotional distress. (Compl. ¶¶ 66, 80.) First, there is no basis to conclude that the placement of concrete dividers could support a claim for assault or intentional infliction of emotional distress. As to whether Defendant can be liable for the individual’s conduct, the Court presumes that Plaintiff’s claims are based on a respondeat superior theory (see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208 [“Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment”]), but Plaintiff has not pled that the individual’s conduct was in furtherance of his employment, and the Court cannot simply conclude that threatening a third party is a foreseeable act that is related to construction contractor employment. Further, there is no basis to conclude that amendment would cure these deficiencies. Thus, Defendant’s demurrer to the fifth and sixth cause of action is SUSTAINED without leave to amend.