Judge Margaret L. Oldendorf, Case 22AHCV01170 2023-05-17 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 22AHCV01170, Date: 2023-05-17 Tentative Ruling

This is an action for injuries sustained in a trip and fall alleged to have been caused by a non-trivial, uneven/raised portion of a public sidewalk in the City of South Pasadena. The incident occurred on a sidewalk abutting property owned by Mercury Overseas.

Before the Court are a demurrer and motion to strike filed by the City. The demurrer to the 1^st cause of action is overruled. The demurrers to the 2^nd and 3^rd are sustained. The motion to strike is granted in part and denied in part.

Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action.

A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247. A demurrer tests the legal sufficiency of the pleading. Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 391.

Pleadings are to be broadly construed (Code Civ. Proc. §452) and demurrers are to be overruled where the facts are sufficient to state any cause of action. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.

Code Civ. Proc. §430.10(f) provides for a demurrer where a pleading is uncertain.

Only where a pleading is so uncertain a defendant cannot determine what must be admitted or denied is a demurrer for uncertainty appropriate. Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.

Code Civ. Proc. §436: “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.”

“Sovereign immunity prevails except when changed by the Legislature.” Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 385. In other words, public entity liability is created by statute.

“The Government Claims Act (§ 810 et seq.) establishes the limits of common law liability for public entities, stating: ‘“Except as otherwise provided by statute: [¶] (a) 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.”’ (§ 815, subd. (a), italics added.)” Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899.

“Because ‘all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.”’ (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795, 221 Cal.Rptr. 840, 710 P.2d 907 (Lopez).)” City of Los Angeles v. Superior Court (2021) 62 Cal.App.5th 129, 138.

- the sidewalk adjacent to 830 Mission Street in South Pasadena was “dangerous, defective, unsafe, hazardous, substantially buckled and/or raised a non-trivial amount as a result of the substandard and/or improper repair of the [sidewalk] and/or the roots growing under this non-trivially raised portion of the [sidewalk] from a tree owned and/or maintained by Defendants”;

- on February 10, 2022, as a result of this dangerous sidewalk, Plaintiff tripped and fell, sustaining serious bodily injury.

Seven causes of action are alleged in this 66-page pleading. The first three are alleged against the City; one is for dangerous condition of public property, and two are based on alleged violations of mandatory duties. The City argues that the only potential basis for liability against it is Gov. Code §835. The City is correct.

“The nature and extent of a public entity’s liability for an injury suffered on its property is governed by statute, specifically the Government Claims Act. ‘[A] public entity is not liable for injuries except as provided by statute (§ 815) and ... section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. “[T]he intent of the [Government Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.” (Williams v. Horvath (1976) 16 Cal.3d 834, 838[, 129 Cal.Rptr. 453, 548 P.2d 1125].)’ (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829, 15 Cal.Rptr.2d 679, 843 P.2d 624 (Brown).)” Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, bolding added.

Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1131-1132 also holds that public entity liability for dangerous conditions of public property must be evaluated pursuant to Gov. Code §835 alone.

Plaintiff’s first cause of action alleges a dangerous condition of public property; though the claim indicates that it is brought pursuant to Gov. Code §§815.2, 815.4, 820, 835, and 945. The City demurs to this claim based on uncertainty, arguing that the cause of action is so uncertain that a meaningful response cannot be framed. This demurrer is overruled. Here, Plaintiff has pleaded one statute on which liability may be based (Gov. Code §835), and thus a cause of action is stated. The other statutory references, while they may be superfluous, do not render the pleading so uncertain that the City cannot answer.

The second and third causes of action attempt to allege a violation of mandatory duties pursuant to Gov. Code §815.6. In the second cause of action, it is alleged that the City had a duty pursuant to Streets and Highways Code §§5611[1] and 5615[2] to notify the property owner to repair the sidewalk; and if that did not occur, to repair the sidewalk itself. The third cause of action appears to allege a violation mandatory duty based on Gov. Code §835. These causes of action fail. Streets and Highways Code §§5611 and 5615 do not give rise to mandatory duties on the part of City. And Gov. Code §835 does not give rise to a mandatory duty.

“Courts have delineated what is necessary to establish a mandatory duty. ‘First and foremost, ... the enactment at issue [must] be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.’ (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498, 93 Cal.Rptr.2d 327, 993 P.2d 983 (Haggis).) ‘It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.’ (Ibid., italics added.) Moreover, ‘[c]ourts have ... [found] a mandatory duty only if the enactment “affirmatively imposes the duty and provides implementing guidelines.”’ (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898, 95 Cal.Rptr.3d 183, 209 P.3d 89 (Guzman).) ‘ “[T]he mandatory nature of the duty must be phrased in explicit and forceful language.” [Citation.] “ ‘It is not enough that some statute contains mandatory language. In order to recover plaintiffs have to show that there is some specific statutory mandate that was violated by the [public entity].’ [Citations.]’ (Id. at pp. 910–911, 95 Cal.Rptr.3d 183, 209 P.3d 89.)’” State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 350.

Whether an enactment creates a mandatory duty is a question of statutory interpretation for the courts. Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499, citing Creason v. Department of Health Services (1998) 18 Cal.4th 623, 631.

The Highway and Streets codes Plaintiffs rely on, though they use the word “shall,” do not create any mandatory duties. Mandatory duties exist only where no discretion is involved. If these statutes gave rise to mandatory duties a public entity would need to create a mechanism for being constantly aware of every inch of sidewalk in order to take action. It would be the equivalent of strict liability. That is not a reasonable interpretation of the statute. Cities conduct periodic inspections of streets, using their discretion, and decide which sidewalks are in need of repair, again using their discretion. These statutes cannot be interpreted to give rise to mandatory duties on the part of public entities.

Plaintiff urges that this is not properly decided at the demurrer stage. The Court disagrees. Demurrers test the legal sufficiency of a pleading. The analysis here involves statutory interpretation, which is a legal issue. It is properly resolved on demurrer.

With regard to the City’s motion to strike, a portion of it is rendered moot in light of the order on demurrer. The motion to strike is granted except as to Item 7 (all references to non-trivial and non-trivially); and Item 8 (¶29 describing physical conditions of the location where the incident occurred). These allegations, while perhaps not essential, are not improper.

All allegations of mandatory duties outside of the 2^nd and 3^rd causes of action (¶¶ 45-88) are stricken as irrelevant and improper. All references to Gov. Code §§815.2, 815.4, 815.6, 820, and 945 are stricken as irrelevant and improper. All references to Does 1-60, who are defined as government defendants, are stricken as irrelevant and improper.

The City’s demurrer to the 1^st cause of action is overruled. The demurrer to the 2^nd and 3^rd causes of action is sustained without leave to amend for the reasons stated in the moving and reply papers, and as set forth in this order. The motion to strike is granted except as to Items 7 and 8.

[1] Streets & Highways Code §5611: “When any portion of the sidewalk is out of repair or pending reconstruction and in condition to endanger persons or property or in condition to interfere with the public convenience in the use of such sidewalk, the superintendent of streets shall notify the owner or person in possession of the property fronting on that portion of such sidewalk so out of repair, to repair the sidewalk.”

[2] Streets & Highways Code §5615: “If the repair is not commenced and prosecuted to completion with due diligence, as required by the notice, the superintendent of streets shall forthwith repair the sidewalk. Upon the written request of the owner of the property facing the sidewalk so out of repair, as ascertained from the last equalized assessment roll of the city, or as shown in the records of the office of the clerk, the superintendent may repair any other portion of the sidewalk fronting on the property that is designated by the owner. The superintendent shall have power to prescribe the form of the written request. The cost of repair work done by request pursuant to this section shall be a part of the cost of repairs for which, pursuant to this chapter, subsequent notices are given, hearings held and assessment and collection procedures are conducted.”