Judge: Margaret L. Oldendorf, Case: BC718464, Date: 2023-04-14 Tentative Ruling
Case Number: BC718464 Hearing Date: April 14, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I. INTRODUCTION
These consolidated cases concern a structure fire that severely
injured several people and killed two. The premises, located at 3779 Cahuenga
Boulevard in Studio City, was being used as recording studios and residences. The
allegation is that though the only permitted use was as an office, Defendant
City of Los Angeles was aware that it was being used 24 hours a day, seven days
a week, as a space for recording (with multiple sound-proofed rooms), for
living, and for partying and marijuana growing.
The fire took place in the early morning hours of April 14,
2018. Plaintiff Pink Selkin, then 15, was unable to find her way out and
suffered severe and permanent injuries. Selkin alleges the property was a
“death trap” in that it had “illegal and noncompliant entrances and exits, bars
on the limited windows, dead-end hallways, a lack of basic fire and life safety
devices, or even proper exit signs, making it impossible for Selkin to navigate
exit of the property.”
Multiple lawsuits were filed in the wake of the fire, by
Selkin and others. Selkin herself is the plaintiff in three lawsuits, all of
which have been consolidated here. In one, Selkin sues the property owners and
managers for negligence and premises liability. In another, she sues the owners
of a Chevron gas station located at 3789 Cahuenga. In that case, Selkin alleges
that an individual named Efren Zimbalist Demery purchased a lighter and $2
dollars of gas, which he pumped into a Crystal Geiser water bottle. It is
alleged that Demery then went to the premises and intentionally started the
fire that resulted in the deaths and injuries alleged in these consolidated
cases. The third case, the one at issue here, contains Selkin’s claim against
the City of Los Angeles.
Selkin alleges that City is liable for her injuries because
it had duties to protect the public from the conditions that resulted in this
deadly fire. Before the Court is the City’s demurrer to Selkin’s operative
First Amended Complaint. The City argues that the First Amended Complaint fails
to allege a statutory basis for liability; and that to the extent liability is
based on violation of mandatory duties concerning building, fire, and safety
statutes and ordinances it fails because of inspection immunity. Selkin urges
that her claims rely on the City’s alleged actual knowledge of various building
and safety code violations rather than its failure to inspect the premises. The
mechanism by which the City is alleged to have acquired “knowledge” of the
violations is through visits to the property by fire and police personnel. This
theory -- that a public entity may be charged with knowledge of building code
violations because employees other than building inspectors have visited the
property and observed the violations -- is a novel theory that is not supported
by any legal authority. The demurrer is therefore sustained.
II. LEGAL
STANDARD
A.
The Law Governing Demurrers
A
demurrer may be sustained where a complaint fails to state a cause of action. Code
Civ. Proc. §430.10(e). A general demurrer tests the legal sufficiency of a
complaint. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.
A
demurrer may also be based on uncertainty. Code Civ. Proc. §430.10(f). Such
demurrers are generally disfavored, and are sustained only where a pleading is
so uncertain that a defendant cannot reasonably respond. Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616; A.J.
Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.
B. The Law
Governing Public Entity Liability
The Government Claims Act “is a comprehensive
statutory scheme governing the liabilities and immunities of public entities
and public employees for torts.” Cleveland v. Taft Union High School
(2022) 76 Cal.App.5th 776, 797. “An important feature of the Act is that public
entity tort liability is exclusively statutory: ‘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.)” Id. at 797-798.
Gov. Code §815.6 contains an exception to the
general immunity rule. It provides: “Where a public entity is under a mandatory
duty imposed by an enactment that is designed to protect against the risk of a
particular kind of injury, the public entity is liable for an injury of that
kind proximately caused by its failure to discharge the duty unless the public
entity establishes that it exercised reasonable diligence to discharge the
duty.”
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.
“Liability under Government Code section 815.6
may only be based on an enactment that creates an obligatory duty and may not
be based on a discretionary or permissive duty. (Haggis v. City of Los
Angeles (2000) 22 Cal.4th 490, 498, 93 Cal.Rptr.2d 327, 993 P.2d 983.) It
is not enough that an enactment requires a public entity or officer to perform
a function if the function itself involves the exercise of discretion. (Ibid.)”
Thompson v. County of Los Angeles (2022) 85 Cal.App.5th 376, 380.
Gov. Code §818.6 provides, “A public entity is not liable
for injury caused by its failure to make an inspection, or by reason of making
an inadequate or negligent inspection, of any property, other than its property
(as defined in subdivision (c) of Section 830), for the purpose of determining
whether the property complies with or violates any enactment or contains or
constitutes a hazard to health or safety.”
III. DISCUSSION
A. Procedural Posture
These consolidated cases were transferred to this Court in September
2022. They were previously before the Honorable William D. Stewart in
Department A of the Burbank Courthouse. On June 9, 2021, Judge Stewart heard
and sustained with 45 days’ leave to amend the City’s demurrer to Selkin’s
original complaint.
The operative FAC was filed January 20, 2023. There was a
significant 18-month gap after the demurrer ruling before an amended pleading
was filed.
B. Selkin’s Theories of Liability
The City demurs in part on the ground of uncertainty,
arguing that the FAC does not allege a particular theory of liability or any
statutory basis for liability. Section 430.10 (f). Selkin does not directly
address this argument in her opposition brief. She does, however, argue that
the FAC alleges liability under two theories: (1) mandatory duty; (2)
negligence based on a special relationship giving rise to a legal duty.
Opposition at 1:12-2:15.
The demurrer based on uncertainty is overruled. The Court examines
the Complaint to determine if Selkin has adequately alleged facts to support liability
under either the mandatory duty or “special relationship” theories.
According to the caption of the FAC, liability is based on
Gov. Code §§ 815, 815.2, 815.4, 815.6, 820, 822.2, 840.2, and 850.2. But, as
the City observes, most of these cited provisions do not support liability on
the alleged facts. Memorandum of Points and Authorities at 7:14 – 8:2. On the
facts alleged, only Section 815.6, which provides for liability based on a
mandatory duty, potentially provides a basis for liability. Selkin effectively acknowledges
this. Opposition at 4:10, fn. 1. The Court also examines the provisions of Sections
815.2 and 820 (vicarious liability based on negligence of public employee owing
a special duty to Selkin).
C. Summary of the First Amended Complaint
Selkin alleges that
on April 14, 2018, she was lawfully on the premises when the fire broke out.
She alleges she was trapped in the building because of noncompliant entrances
and exits, bars on windows, dead end hallways, and other features that made it
impossible for her to find an exit. Selkin alleges the building lacked
“sufficient life safety measures and was not up to fire protection and life
safety codes,” including a lack of adequate smoke alarms, fire extinguishers,
overhead sprinklers, exit signs, emergency lighting, and a safe means of exit,
“all in violation of applicable statutes.” FAC, ¶4. In ¶¶5 and 6 it is alleged
that the City was aware the property lacked the required fire and safety
equipment and design; but it failed to “take the required action” to make the
property safe. Additionally, it is
alleged the City knew the property was being used illegally as a recording
studio and residence but, “in violation of multiple mandatory duties,” it took
no action in response.
It is alleged in ¶18 that the only certificate of occupancy
ever issued for the property was in 1959, when an “office building, G-1
Occupancy” certificate was issued. It is alleged in ¶19 that the property was a
blight on the neighborhood, as it had for years been used as a “revolving door hostel”
for tenants, many of whom would travel to Southern California to record music
and stay at the property. It is also alleged that for years, City employees (officials
from LAPD, LAFD, and Dept. of Building and Safety) had been dispatched to the
property to respond to altercations, noise complaints, battery, assault, theft,
and vandalism. Further, Selkin alleges that about one year prior to the fire,
Building and Safety responded to reports of an illegal marijuana grow house at
the property. Selkin alleges that after responding to these numerous calls,
City employees failed to report the dangerous conditions that resulted in
injuries during the fire -- though they were trained to recognize and report unsafe
conditions. FAC, ¶¶ 20, 21, 23. It is alleged that the City had direct as well
as constructive knowledge of the dangers and code violations. FAC, ¶22. In ¶24
it is alleged that the City knew of the dangers posed by the property and
negligently failed to comply with its own mandatory building, fire, and safety
codes.
Violation of mandatory duties pursuant to Section 815.6 is
alleged in ¶26. Details of the various violations are alleged in ¶¶28-38. The
following are some excerpts from the FAC:
39. The CITY, through its
employees, agents, officials, departments, representatives and contractors
(collectively also referred to as "employees"), knew, or should have
known, that conditions in, on, and outside the building were in violation of
numerous health and safety codes including but not limited to the City of Los
Angeles Municipal Code, Fire Code, Mechanical Code, Plumbing Code, Electrical
Code and Building Code. These conditions include but are not limited to the
following: Unlawful and unpermitted use of the facility as a residence and/or
live/ work space; Unsafe conditions; Hazardous electrical wiring and equipment;
Hazardous mechanical equipment; Fire hazards; Faulty materials of construction;
Inadequate exits; Dangerous ingress and egress; Inadequate fire protection and
firefighting equipment including but not limited to the lack of fire detection
and suppression systems; and Inadequate clearances.
40. Plaintiff alleges that
the CITY failed to perform these obligations entirely or, where they engaged in
such actions, they failed to exercise reasonable diligence in discharging those
duties, thereby constituting negligence, negligence per se and/or breach of
mandatory duties.
41. Plaintiff is within the general class of
persons that was entitled to protection by the various statutes, ordinances and
regulations set forth herein for the provision of health and safety and is a
person who one would reasonably anticipate might be threatened by the CITY's
negligent acts and omissions. The CITY, knowing of the dangerous, substandard
and hazardous conditions, breached its mandatory duties, including but not
limited to: ensuring that the Fire, Electrical, Mechanical, Building, Health
and Safety codes, and other statutes and ordinances, were being complied with
and properly implemented; properly identifying and/or communicating the known
dangers and hazards to the appropriate agencies and departments; and failing to
act to remedy, abate, and or vacate the building as required so as to eliminate,
cure or cause to be cured, the dangerous conditions which ultimately led to the
fire and catastrophic injuries and loss of life on April 14, 2018.
Paragraph 43 alleges these violations were a substantial
factor in causing Selkin’s injuries.
D. A Special Relationship Is Not Adequately Alleged
As the California Supreme Court explained in Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607, public
employees are liable for their acts and omissions to the same extent as a private
person; and public entity employers are vicariously liable for employees’
negligent acts within the scope of their employment to the same extent as
private employers. (Citing Gov. Code §§ 820 and 815.2.) Regents also
explains that, while one generally does not owe a duty to control the conduct
of another or to warn those endangered by such conduct, a duty may arise where
a special relationship exists. Further, it discusses the types of circumstances
that may create a special relationship, such as parent-child, common carrier,
and (as pertinent in that case), on a limited basis, college-student. Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1112, for example, holds that
police officers owe no duty to come to the aid of another person, but there may
be liability where an officer voluntarily undertakes a duty to provide a specific
level of protection and then fails to do so.
The First Amended Complaint fails to adequately allege what
Selkin’s special relationship to the City is based upon. Selkin would appear to
be in the same position as every other citizen in the City. Although the FAC
uses the words “special relationship” at ¶¶ 27 and 51, there are no facts that
support that conclusion. There are
simply no facts supporting the existence of a special relationship here that
would give rise to a duty on the part of the City to warn Selkin of the
potential for harm as alleged in ¶¶6 and 54 of the First Amended Complaint.
E. The Mandatory Duty Theory Also Fails
The essence of Selkin’s mandatory duty theory is that the
City was required by various statutes to enforce building, fire, and safety
standards. The list of statutes allegedly imposing mandatory duties are set
forth in ¶¶28-38. They include sections of the Los Angeles Building Code,
sections of the Health and Safety Code pertaining to enforcement of building
standards, sections of the Health and Safety Code pertaining to fire protection,
California Fire Code provisions, and sections of the Los Angeles Municipal
Code. Many of these statutes and ordinances include the word “shall.” Use of such
mandatory language, while necessary to a finding of a mandatory duty, is not
itself dispositive. deVillers v. County of San Diego (2007) 156
Cal.App.4th 238, 260.
For purposes of analyzing the City’s inspection immunity
argument, it is assumed that at least one of the aforementioned statutes
imposes a mandatory duty on the City. Case law support the conclusion that Section
818.6 provides immunity even where a public entity is under a mandatory duty to
inspect. Stevenson v. San Francisco Earthquake Authority (1994) 24
Cal.App.4th 269 involved the death of a Section 8 tenant during the Loma Prieta
earthquake. Section 8 imposes duties to inspect privately-owned homes for
safety. Stevenson’s daughter brought the lawsuit. The trial court’s order
sustaining the Earthquake Authority’s demurrer was affirmed: “The inspection immunity is absolute, and
applies even where the duty to inspect is deemed to be mandatory.” Id.
at 283.
The case of Clayton v. City of Sunnyvale (1976) 62 Cal.App.3d 666 concerned allegedly
dangerous stairs at a privately-owned apartment complex. The allegations were
that the city inspected the building annually. The court analyzed whether
Section 818.6 immunized the city from the alleged negligent failure of its
employees to inspect a building containing patent defects that created a
dangerous condition. It concluded that the immunity applied:
“The grant of immunity provided by the statute is absolute
on its face; there is nothing in the language of the section to indicate that
it was intended to apply only to discretionary activities. The section
presupposes a duty on the part of public entities to inspect private property
for health and safety purposes. Indeed, it has been suggested that because of
the extensive nature of the inspection duties of public entities, a public
entity would be exposed to the risk of liability for virtually all property
defects within its jurisdiction if this immunity were not granted. (Van
Alstyne, California Government Tort Liability (Cont.Ed.Bar 1964) p. 512.)” Id.
at 670.
Clayton also disposed of the argument that the
mandatory duty provisions of Section 815.6 should override Section 818.6
immunity: “Government Code section 815, subdivision (b) provides that the
‘liability of a public entity established by this part . . . is subject to any
immunity of the public entity provided by statute.’ On the basis of this
general rule, it would appear that the entity’s immunity for health and safety
inspections prevails over its liability under section 815.6 for failure to
discharge a mandatory duty.” Ibid.
Selkin urges that inspection immunity is irrelevant, because
her claims do not rest on a failure to inspect. The First Amended Complaint
does attempt to avoid implicating this
immunity. At ¶¶20 and 23 of the FAC, Selkin alleges that City employees failed
to report the illegal occupancy and dangerous conditions following unrelated visits
to the property. Selkin’s theory appears to be that when police and fire
personnel responded to the premises to deal with noise complaints, fights, or
vandalism, the City was put on notice of the violations identified in ¶¶28-38; and
were thus under a mandatory duty to enforce those provisions. The City’s
knowledge of the violations is explicitly alleged in ¶¶ 6, 16, and 22.
This
theory -- that a public entity is under a mandatory duty to enforce its
building, fire, and safety requirements without a formal inspection -- appears novel.
If this were a viable basis for public entity liability, safety violations
witnessed by fire and police personnel in responding to service calls would
automatically be imputed to the entity as a whole, and the entities’ inspectors
and/or code enforcement personnel would then be mandated to respond without
regard to Section 818.6. Selkin cites no
legal authority to support this argument.
This Court finds Selkin’s generalized “awareness” argument to be insufficient
based on the facts as currently alleged.
Selkin argues that that inspection immunity does not apply
to claims unrelated to an actual inspection. She cites Baldwin v. State of
California (1972) 6 Cal.3d 424 in support of this argument; but Baldwin concerns
the conditions under which design immunity applies.
Selkin also cites Cochran v. Herzog Engraving Co.
(1984) 155 Cal.App.3d 405; but this case supports the City’s position. Cochran concerns the death of an
employee in a workplace fire; the business used and stored the highly
combustible substance magnesium. Decedent’s husband and family based their
lawsuit in part on the allegation that the city violated its mandatory duties
under the municipal code to abate known hazardous conditions. In upholding
summary judgment in favor of the city, the Cochran court cited Clayton,
supra. The Court of Appeal stated as follows at pages 411-412:
“[Appellants] urge that the statute does not protect a
public entity once it obtains any knowledge of hazardous conditions; and that
liability may attach for negligent breach of other purported duties, such as a
duty to advise and recommend ways to deal with known fire hazards, or to
require specific fire suppression devices. But the inspection immunity cannot
be so arbitrarily restricted to the mere failure to detect hazards. Public
safety inspection necessarily encompasses making an informed determination that
given conditions are in fact hazardous or not in compliance with regulations,
officially reporting these hazardous conditions, and fully disclosing them to
all interested parties. Appellants’ narrow interpretation of the immunity
statute would clearly place a premium on careless fire inspection, and
encourage municipalities not to make any efforts to learn about possible fire
hazards.”
In the section Selkin relies upon, the Cochran court
clarifies that for Section 818.6 immunity to apply, the negligence must have
been “part and parcel” of the inspection.
The court observed that, in contrast, for example, immunity would not
apply where during an inspection a public employee accidentally injures another
individual.
To the extent Selkin alleges the City owed her a Rowland
v. Christian-type duty of care (Opposition at 15:6-21), in this Court’s
view such a duty would be grounded in a duty to inspect for which, as noted,
the City is immune.
Selkin urges that immunity is an issue that cannot be
decided on demurrer. Opposition at 12:25-13:5. Selkin cites to two cases for
the proposition that disputed facts are not properly determined on demurrer. This rule does not apply here, however, as no
disputed facts are being adjudicated.
While it may generally be true that affirmative defenses
must be pleaded and proved (see Martinez v. County of Ventura (2014) 225
Cal.App.4th 364), it is sometimes appropriate to deal with the issue
on demurrer. See Stevenson v.
San Francisco Earthquake Authority (1994) 24 Cal.App.4th 269.
IV. CONCLUSION
The City of Los Angeles’ demurrer to Selkin’s First Amended
Complaint is sustained for the reasons set forth above.
It may be that further amendment will not help Selkin state
a viable claim against the City.
However, if Selkin can specifically articulate how the pleading may be
amended to state a viable claim, such leave will be considered. See Schaeffer
v. v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1145.
The City is ordered to give notice
of this ruling.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT