Judge: Mark A. Young, Case: 23SMCV01675, Date: 2023-08-16 Tentative Ruling
Case Number: 23SMCV01675 Hearing Date: August 16, 2023 Dept: M
CASE NAME: Shooshani, v. City
of Santa Monica, et al.
CASE NO.: 23SMCV01675
MOTION: Demurrer
to the Complaint
HEARING DATE: 8/16/2023
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. 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. (CCP §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964)
226 Cal.App.2d 725, 732, internal citations omitted.)
A
special demurrer for uncertainty is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s
of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
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. (CCP § 435(b)(1); Cal. Rules of Court, Rule
3.1322(b).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any
pleading not drawn or filed in conformity with the laws of California, a court
rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a
pleading which is not essential to the claim is surplusage; probative facts are
surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
MEET
AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet
and confer in person or by telephone with the party who filed the pleading to
attempt to reach an agreement that would resolve the objections to the
pleading. (CCP §§ 430.41, 435.5.) Defendant’s counsel made reasonable efforts
to meet and confer via telephone. (Ford Decl., ¶¶ 3-4.)
Analysis
The instant demurrer presents a dispute over the interpretation of Santa
Monica Municipal Code (“SMMC”) section 713. SMMC section 713 provides for the
powers and duties of the Street Superintendent as follows:
The Street
Superintendent shall have the general care and supervision of all City streets,
sewers and drains and shall have power to and be required to:
(a) Make frequent inspection of all streets,
sewers and drains of the City;
(b) Receive and investigate all complaints as to
their condition and have charge of the enforcement of all laws and ordinances
pertaining thereto; and
(c) Inspect all streets, sewers and drains while
the same are in the course of construction; inspect, approve or reject all
materials used in such construction, whether done by contract or otherwise and,
pending investigations when necessary, stop all work thereon.
(SMMC § 713.)
The Complaint alleges on July 21,
2022, at approximately 8:00 p.m., Plaintiff was walking near the Subject
Premises, 1318 A Montana Ave, Santa Monica, CA 90403. (Compl., ¶ 10.) Plaintiff tripped and fell on
the allegedly uneven, ill maintained, ill repaired uplifted concrete sidewalk
that was raised a few inches due to an adjacent tree’s roots and had been
patched with asphalt some time prior to July 21, 2022 (the “Subject Uplifting”).
(Compl., ¶ 11.) The Subject Uplifting created a dangerous condition where it
was reasonably foreseeable that someone, such as Plaintiff, would trip and fall
over this dangerous condition and sustain injuries of the kind Plaintiff
sustained. (Id.) In the second cause of action for negligence, the complaint
alleges that the City negligently failed to abide by a mandatory duty under SMMC
section 713, and was negligent per se.
The City contends that SMMC section
713 does not provide for any duty under the pled facts. The City argues that
the allegations arise from the condition of the sidewalk. The City notes that section
713 only makes reference to inspection of streets, sewers and drains without
reference to sidewalks. The City concludes that since this section does not
create any duty to maintain the subject sidewalk, the cause of action for
negligence based on this duty fails. Indeed, on the face of section 713, the statute
does not create a duty to inspect sidewalks, but only streets, sewers and
drains. As noted by the City, SMMC expressly defines and refers to sidewalks
throughout the Code, but not in section 713. Thus, the terms streets, sewers or
drains contemplated in section 713 could not reasonably be interpreted as to include
sidewalks. The allegations demonstrate that the City failed in its alleged duty
to maintain the sidewalk and/or tree roots as public property. (Compl.,
¶¶ 14, 36, 46.) The Complaint does not allege that Defendants failed in their
duty to inspect streets, sewers and drains, or any causal nexus between that
duty and Plaintiff’s injuries. Thus, the cited section is not applicable to the
pleadings.
Plaintiff also contends that the
adjacent tree and its roots causing the Subject Uplift “may be located on the
street” which would imply a duty to inspect pursuant to section 713. However,
there is no allegation pertaining to this fact. Plaintiff does not provide how
the City’s duty to maintain the streets would be implicated by the tree roots. The
complaint alleges that the tree was on the sidewalk or adjacent property. The
tree roots then allegedly grew under the sidewalk, causing the alleged
dangerous condition. Even if the tree roots eventually spread under the street,
this fact would still not show any nexus between the City’s duty to maintain
streets, etc., and the dangerous condition of the sidewalk. The facts remain
that the dangerous condition alleged is the uplifted concrete slab sidewalk. Plaintiff
needs to proffer additional facts showing a causal nexus between the City’s
failure to maintain the streets and Plaintiff’s injuries caused by the uplifted
sidewalk before leave to amend would be granted.
The Court also observes that this
cause of action is redundant with the pled other causes. Accordingly, the demurrer is SUSTAINED as to
the second cause of action for negligence without leave to amend.