Judge: Lynne M. Hobbs, Case: 23STCV16137, Date: 2024-02-09 Tentative Ruling

Case Number: 23STCV16137    Hearing Date: February 9, 2024    Dept: 30

ERICK COLINDRES DAVILA vs STATE OF CALIFORNIA, et al.

TENTATIVE

Defendants State of California by and through the California Highway Patrol and Officer Adrian Erik Gutierrez’s demurrer is SUSTAINED with 20 days leave to amend. Moving party is ordered to give notice.

Legal Standard

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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of Michael Gasbarro which satisfies the meet and confer requirements. (Code Civ. Proc. § 430.41.)

Discussion

Defendant demurs and argues that the complaint cites to no statutory basis to assert tort liability against a public entity.

Government Code § 815 provides, in pertinent part, that, except 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.” (Government Code § 815(a).) (See Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 341 (“A public entity…is subject to direct liability only as provided by statute or required by the state or federal Constitution. [Citations]”).) (See also San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 427-428.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) To state a claim against a public entity, “every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)

Here, Plaintiff has failed to identify the statute providing for Defendants’ liability for the alleged accident in the complaint. Accordingly, the demurrer is sustained. Although Plaintiff has not filed an opposition to show how the pleading can be cured, the Court will allow leave to amend as this is the first demurrer and there is a reasonably possibility of successfully amending the complaint.