Judge: Mark A. Young, Case: 23SMCV02988, Date: 2024-04-17 Tentative Ruling
Case Number: 23SMCV02988 Hearing Date: April 17, 2024 Dept: M
CASE NAME: Ashley v.
County of LA, et al.
CASE NO.: 23SMCV02988
MOTION: Demurrer
to the First Amended Complaint
HEARING DATE: 4/17/2024
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.)
“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.)
Analysis
Defendant County of Los Angeles Development Authority (“LACDA” or “Defendant”)
demurs to the First Amended Complaint (“FAC”).
Request for
Judicial Notice
Defendant’s request for judicial notice is GRANTED. (Evid. Code §
452(c)(h).)
Claim
Presentation
Defendant argues that the allegations of the FAC do not fairly reflect
the Government Claim presented to LACDA, subjecting the FAC to dismissal. Government
Code § 815 provides that “[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” except as provided by statute. (Govt.
Code, § 815(a).) “[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.) That said, the Act provides that public
employees are liable for their acts and omissions “to the same extent as a
private person” (Gov. Code, § 820(a)), and public entity employers are
vicariously liable for employees’ negligent acts within the scope of their
employment to the same extent as private employers (Gov. Code, § 815.2(a)).
Any party with a claim for money or damages against a
public entity must first file claim directly with that entity. (Gov. Code §§
905, 945.4; City of Ontario v. Superior Court (1993) 12 Cal.App.4th
894.) This provides the public entity with an opportunity to evaluate the claim
and decide whether it will pay the claim. (Roberts v. County of Los
Angeles (2009) 175 Cal.App.4th 474.) Failure to timely file a tort claim
renders the complaint subject to demurrer.¿(V.C. v. Los Angeles Unified
School Dist.¿(2006) 139 Cal.App.4th 499, 509 [affirming trial court
decision to sustain demurrer without leave to amend because V.C.’s failure to
timely comply with the requirements of the Government Claims Act barred her
action].)
The claim must include the date, place and
other circumstances of the occurrence or transaction which gave rise to the
claim asserted, a general description of the injuries, and the names of the
public employees who caused them. (Gov. Code § 910, see Fall River Unified School District v.
Superior Court (1988) 206
Cal.App.3d 431, 434.) The complaint is vulnerable
to demurrer if it alleges a factual basis for recovery which is not fairly
reflected in the written government claim. (Stockett v. Association of
California Water Agencies Joint Powers Insurance Authority (2004) 34
Cal.4th 441, 447; see Gov. Code § 945.4.)
Comparing the presented Claim with the allegations of the FAC, the Court finds
no significant variance between the two. Plaintiff’s presented government claim
fairly gave Defendant an opportunity to investigate and evaluate its potential
liability regarding Plaintiff’s alleged fall. The Claim adequately describes
the factual basis of liability, to wit: “On July 19th, 2022, at
approximately 8:30pm, claimant Che Ashley was walking towards her shower in her
home residence located at 11437 Normandie Ave., Apt. 7, Los Angeles, CA 90024.
As Ms. Ashley was walking towards the shower, she tripped and fell over tile
paper that was lifted above ground. The client fell to the floor and became
unconscious. The client woke up to the fire department and paramedics around
her.” (RJN, Ex. A.) This is substantially identical to the facts alleged in the
FAC – that a condition of the subject property injured Plaintiff. (FAC ¶ Prem.
L-1.)
The Claim also states the factual basis of LACDA’s liability, to wit,
that it is responsible for the “acts and omissions of management,
administration, maintenance personnel, inspectors, and/or the staff members and
employees of the County of Los Angeles and/or LACDA. The subject
premises are believed to be owned and/or operated and/or maintained by the
County of Los Angeles and/or LACDA.” (Id., emphasis added.) Read in context
with the supporting facts, the description fairly identifies LACDA’s liability
for its employee’s “acts and omissions” in maintaining the Property and for its
ownership/operation/maintenance of the property. Therefore, the FAC provides
for the same theory of liability presented in the Claim.
Defendant does not present any
caselaw showing that the terms “dangerous condition of public property” or any
other specific language needs to be used in the claim presentation. Defendant’s
cited cases discussing pleadings which fail to reflect the facts of government
claims rely on unstated facts which were “entirely different from those
first noticed.” (See Fall
River, supra, 206 Cal.App.3d at 434 [claim alleging an express defective
condition of a door closing with excessive force did not support an action
related to negligent supervision of schoolchildren]; see, e.g., Turner v.
State of California (1991) 232 Cal.App.3d 883 [government claim alleged a
dangerous condition theory of liability on the basis of known criminal activity
and alleged the criminal actions of third parties and reckless acts of security
officers, but the complaint attempted to allege alleged a new theory of
liability based on “inadequate lighting”]; see also Hernandez v. City of
Stockton (2023) 90 Cal. App. 5th 1222 [claimant identified a dangerous
condition as an “uplifted sidewalk” in his government claim, but identified the
defect in his civil action as hole caused by an empty tree well, which was not
a further description or clarification of his allegation of an uplifted
sidewalk, but was an entirely different description].) As discussed, the FAC
relies on the same set of facts first noticed, that is LACDA’s failure
to maintain the Property and Plaintiff’s subsequent slip and fall injury.
Accordingly, the demurrer on this basis is OVERRULED.
Negligence and Premises
Liability
Government tort claims must be pled
with particularity, so that they state every fact essential to the existence of
statutory liability, they identify the statute claimed to establish the
liability, and they plead facts sufficient to show that the cause of action
lies outside any applicable statutory immunity. (Susman v. City of Los
Angeles (1969) 269 Cal.App.2d 803, 809; E.L. White, Inc. v. City of
Huntington Beach (1978) 21 Cal.3d 497, 512, fn. 9.) Since the duty of a governmental agency can only be created
by statute or enactment, the statute or enactment claimed to establish the duty
must at the very least be identified. (Searcy v. Hemet Unified School
Dist. (1986) 177 Cal.App.3d 792, 802.)
The Complaint does not state a statutory basis for any
cause of action, including Government Code sections 835. This omission alone
justifies sustaining Defendant’s demurrer with leave to amend. Additionally, the claim is not stated with
particularity. A public entity is liable for injury caused by a dangerous
condition of its property if: 1) the property was in a dangerous condition at
the time of the injury;¿2) the dangerous condition caused the injury;¿3) the
dangerous condition created a reasonably foreseeable risk of the kind of injury
which was incurred; and 4) either a negligent or wrongful act or omission of an
employee of the public entity within the scope of his employment created the
condition, or the entity had actual or constructive notice of the condition in
time to have taken measures to protect against it. (Gov. Code § 835; see Moncur
v. City of Los Angeles, Dept. of Airports (1977) 68 Cal.App.3d 118.) A
“dangerous condition” means “a condition of property that creates a substantial
(as distinguished from a minor, trivial or insignificant) risk of injury when
such property or adjacent property is used with due care in a manner in which
it is reasonably foreseeable that it will be used.” (Gov. Code §
830(a).)
Here, the FAC does not plead whether the dangerous
condition created a reasonably foreseeable risk of tripping, or the specific act(s)
or omission(s) of a LACDA employee within the scope of employment which created
the condition. (See FAC ¶¶ Prem.L-4.)
Additionally, the Court concurs
that section 835 is the only viable cause of action alleged. Government. Code section 835 “sets out the exclusive
conditions under which a public entity is liable for injuries caused by a
dangerous condition of public property.” (Metcalf v. County of San
Joaquin (2008) 42 Cal.4th 1121, 1129 [noting the intent of the Act was not
to expand the rights of plaintiffs in suits against governmental entities, but
to confine potential governmental liability to rigidly delineated
circumstances].)
Accordingly,
Defendant’s demurrer to count three, which is the Dangerous Condition of Public
Property cause of action, is SUSTAINED with leave to amend. The demurrer is
SUSTAINED without leave to amend as to count one for General Negligence.
Plaintiff has ten
days to file an amended complaint.