Judge: Lisa R. Jaskol, Case: 22STCV06985, Date: 2023-12-18 Tentative Ruling

Case Number: 22STCV06985    Hearing Date: December 18, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows.  

BACKGROUND 

On February 25, 2022, Plaintiff Jessica Rosas (“Plaintiff”) filed this action against Defendants City of Downey (“Downey”), City of Los Angeles (“Los Angeles”), County of Los Angeles (“County”), Assured Income LLC, and Does 1-25 for general negligence and premises liability. 

On October 18, 2023, the County filed an answer. 

On November 17, 2023, Downey filed a demurrer to be heard on December 18, 2023.  Plaintiff did not file an opposition. 

On November 28, 2023, Los Angeles filed an answer and a cross-complaint against Cross-Defendants Downey, Assured Income, Inc., and Roes 1-10 for indemnification, apportionment of fault, and declaratory relief. 

No trial date is currently scheduled. 

PARTY’S REQUEST 

Downey requests that the Court sustain the demurrer. 

LEGAL STANDARD 

A.      Demurrer 

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: 

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. 

“(b) The person who filed the pleading does not have the legal capacity to sue. 

“(c) There is another action pending between the same parties on the same cause of action. 

“(d) There is a defect or misjoinder of parties. 

“(e) The pleading does not state facts sufficient to constitute a cause of action. 

“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. 

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. 

“(h) No certificate was filed as required by Section 411.35.” 

(Code Civ. Proc., § 430.10.) 

In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].) 

“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).”  (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25 (Cal. Practice Guide), emphasis omitted.) 

DISCUSSION 

A.   Complaint 

The Complaint alleges the following: 

          On April 13, 2021, Plaintiff was lawfully on the premises owned, occupied, operated, maintained, leased, used, controlled, managed, directed, inspected, repaired, cleaned, supervised, and operated by Defendants located at 8050 Florence Avenue, in the City of Downey, County of Los Angeles, State of California.  Plaintiff came into contact with a dangerous condition, a hole negligently and improperly covered by an undersized piece of wood, which caused Plaintiff to fall and sustain severe and permanent injuries and damages. 

          The complaint includes a claim for general negligence and a claim for premises liability.  The premises liability claim includes four sub-claims: (1) negligence, (2) willful failure to warn, (3) dangerous condition of public property, and (4) allegations about other defendants. 

B.   Demurrer 

          Downey argues that Plaintiff has failed to allege “detailed and particularized facts” establishing a statutory basis for liability against a public entity. 

C.   Analysis 

Government Code section 835 “ ‘is the principal provision addressing the circumstances under which the government may be held liable for maintaining a dangerous condition of public property . . . .’ ”  (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1131, quoting Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809.)  “[T]he liability of public entities as property owners is set out specifically in Government Code section 835, as part of the general scheme of the Tort Claims Act.”  (Id. at p. 1132.) 

Government Code section 835 provides that, “[e]xcept as provided by statute, 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.” 

Government Code section 830, subdivision (a), defines “dangerous condition” as “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.” 

The dangerous condition of public property claim in Plaintiff’s form complaint tracks the language of Government Code section 835, making it clear that Plaintiff is relying on section 835 as the statutory basis for her assertion of a premises liability claim against Downey. 

Plaintiff has not, however, alleged a statutory basis for her remaining claims.  Therefore, the Court sustains Downey’s demurrer to the claims for general negligence, premises liability–negligence, premises liability–willful failure to warn, and premises liability–allegations about other defendants. 

CONCLUSION 

The Court SUSTAINS IN PART AND OVERRULES IN PART Defendant City of Downey’s demurrer to Plaintiff Jessica Rosas’s complaint as follows: 

The Court SUSTAINS the demurrer to Plaintiff Jessica Rosas’s claims for negligence, premises liability–negligence, premises liability–willful failure to warn, and premises liability–allegations about other defendants, with 30 days leave to amend. 

The Court OVERRULES the demurrer to Plaintiff Jessica Rosas’s claim for premises liability based on a dangerous condition of public property. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.