Judge: Lynette Gridiron Winston, Case: 23PSCV02465, Date: 2023-11-14 Tentative Ruling
Case Number: 23PSCV02465 Hearing Date: November 14, 2023 Dept: 6
CASE NAME: Guillermina Buenrostro v. City of West Covina
Defendant City of West Covina’s Motion to Strike Portions of Plaintiff’s First Amended Complaint
TENTATIVE RULING
The Court GRANTS the motion to strike Prem. L-1 and L-4 with leave to amend and L-2 without leave to amend.
Plaintiff is ordered to file and serve a Second Amended Complaint within 10 calendar days.
Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is a premises liability action. On August 11, 2023, Plaintiff Guillermina Buenrostro (Plaintiff) filed this action against Defendant City of West Covina (Defendant) and Does 1 to 10, alleging a cause of action for premises liability. On September 13, 2023, Plaintiff filed the operative First Amended Complaint (FAC).
On October 13, 2023, Defendant filed the instant motion to strike. On November 1, 2023, Plaintiff opposed the motion. On November 6, 2023, Defendant replied.
LEGAL STANDARD
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” (Id., § 436.)
PRELIMINARY ISSUES
Plaintiff’s opposition was filed on November 1, 2023, which is untimely per the November 14, 2023 hearing date given the court holiday on November 10, 2023. (See Code Civ. Proc., § 1005, subd. (b).) Nevertheless, the Court exercises its discretion to still consider the opposition but admonishes Plaintiff to comply with the requirements of the Code of Civil Procedure going forward. (See Cal. Rules of Court, rule 3.1300(d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)
DISCUSSION
Meet and Confer
Per Code of Civil Procedure section 435.5, subdivision (a), the parties were required to meet and confer telephonically or in person before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds the parties’ meet and confer efforts sufficient. (Dykes Decl., ¶ 5.)
Analysis
Defendant contends paragraphs Prem. L-1, 2, and 4 of Plaintiff’s cause of action for premises liability in the FAC are subject to a motion to strike because Plaintiff fails to allege a statutory basis for liability against Defendant and fails to allege facts demonstrating that Defendant had actual or constructive notice of the allegedly dangerous condition. Defendant also contends that it cannot be held liable for common law negligence. The Court agrees that a public entity cannot be held liable for common law negligence and that the FAC fails to allege facts demonstrating notice to Defendant of the allegedly dangerous condition.
The Court first notes, however, that paragraphs Prem. L-1, 2, and 4 of the FAC comprise all of Plaintiff’s allegations against Defendant for premises liability. Defendant moving to strike these paragraphs is tantamount to moving to strike the entire cause of action, which is not a basis for a motion to strike. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.) While PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680 provides that a motion to strike may lie as to part of a cause of action, that is not what Defendant is doing here; rather, Defendant is moving to strike all of the allegations for Plaintiff’s premises liability claim. (See Id., at pp. 1682-1683.) Nevertheless, the Court exercises its discretion and construes Defendant’s motion to strike as a general demurrer for failure to state a cause of action. (See Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529.)
The Court agrees that a public entity, like Defendant, cannot be held liable for common law negligence. (See Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850 ["Although the complaint sounds in negligence, there is no common law tort liability for public entities in California"] and Van Kempen v. Hayward Area Park District (1972) 23 Cal.App.3d 822, 825 ["[T]he liability of the public entity could only be statutory and could not rest on a theory of common law negligence"]) and Tolan v. State of California (1979) 100 Cal.App.3d 980, 986. Therefore, the first count for negligence (FAC, Prem. L-2) cannot be stated against Defendant.
The Court, however, disagrees that Plaintiff fails to allege a statutory basis for liability here. The FAC alleges that Plaintiff’s injury was caused by a dangerous condition of public property, (FAC, Prem.L-4), which is a permitted basis for liability against a public entity under Government Code section 835, (Gov. Code § 835.) Plaintiff need not allege the specific code provision that forms the basis of Defendant’s liability at the pleading stage. (See Jaffe v. Carroll (1973) 35 Cal.App.3d 53, 57 [“‘ . . . It is an elementary principle of modern pleading that the nature and character of a pleading is to be determined from its allegations, regardless of what it may be called, and that the subject matter of an action and issues involved are determined from the facts alleged rather than from the title of the pleadings or the character of the damage recovery suggested in connection with the prayer for relief.’ [Citation.]”]) Defendant also cites no legal authority to support the contention that Plaintiff must allege the specific code provision at issue to state a cause of action for premises liability based on dangerous condition of public property.
The Court does agree that Plaintiff fails to allege facts demonstrating that Defendant had either actual or constructive notice, by virtue of the simple fact that Plaintiff did not check the box on the Judicial Council form complaint for the FAC indicating whether Defendant had notice of the allegedly dangerous condition before Plaintiff was injured. (See FAC, Prem.L-4.) The Court also agrees with Defendant that Plaintiff’s use of a Judicial Council form for the FAC does not necessarily insulate Plaintiff against this motion. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.)
The Court further agrees with Defendant that Plaintiff’s reference to Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780 was incomplete. Immediately following the language that Plaintiff quoted, (Opp., 3:3-6), the Court of Appeal in Lopez stated that all Government Tort claims are based on statute, which necessarily requires facts to be pleaded with particularity. (40 Cal.3d at p. 795.)
Therefore, Plaintiff has failed to allege sufficient facts to state a cause of action for premises liability against Defendant. Based on the foregoing, the Court GRANTS the motion to strike.
CONCLUSION
The Court GRANTS the motion to strike Prem. L-1 and L-4 with leave to amend and L-2 without leave to amend.
Plaintiff is ordered to file and serve a Second Amended Complaint within 10 calendar days.
Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.