Judge: Matthew C. Braner, Case: 37-2021-00043321-CU-CR-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Civil Rights Demurrer / Motion to Strike 37-2021-00043321-CU-CR-CTL GROSS VS THE CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant The City of San Diego's demurrer to the first amended complaint is SUSTAINED with leave to amend.

Defendant's request for judicial notice is granted.

Plaintiff DeShawn Gross's opposition was technically filed and served late; it appears Plaintiff failed to account for the court holiday on Monday February 12, 2024. However, the court declines to refuse to consider the late-filed opposition, which does not appear to have prejudiced Defendant in any way.

A demurrer shall be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here, Defendant demurs to each of Plaintiff's five causes of action set forth in the first amended complaint filed in federal court prior to remand back to this court. Defendant argues the first cause of action is subject to demurer because Defendant is not a 'business establishment' within the meaning of Civil Code section 51, and Plaintiff has otherwise failed to allege sufficient facts to make a claim under Civil Code section 54. Defendant argues the second and third causes of action for declaratory and injunctive relief rely on her other claims, and because those claims fail, so too must these claims.

Defendant argues the fourth cause of action for dangerous condition of property fails because Plaintiff's government claim did not include a claim for dangerous condition of property. Finally, Defendant argues that it cannot be subject to a general negligence claim under Government Code section 815.2 because both it and its employees have immunity to the claim as pled.

First, the court agrees Defendant is not a 'business establishment' under Civil Code section 51. (Civ.

Code, § 51, subd. (b) ['All persons within the jurisdiction of this state are free and equal, and . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of very kind whatsoever.'].) The California Supreme Court's analysis in Brennon B. v. Superior Court of Contract Costa County is on point and not limited solely to school districts. There, the Court determined that a school district was not a 'business establishment' based on both the plain meaning of that phrase and on the purpose of the Unruh Civil Rights Act. 'The everyday Calendar No.: Event ID:  TENTATIVE RULINGS

3053101  26 CASE NUMBER: CASE TITLE:  GROSS VS THE CITY OF SAN DIEGO [IMAGED]  37-2021-00043321-CU-CR-CTL meaning of 'business establishments'-even with the statute's expansive 'of every kind whatsoever' clause-conveys reference to commercial entities, those whose principal mission is the transactional sale of goods or services.' (Brennon B. v. Superior Court of Contract Costa County (2022) 13 Cal.5th 662, 674.) Here, Defendant is a public entity under Government Code section 811.2 and 940.4, and its provision of public services (i.e., public way maintenance, traffic regulation, etc.), like a school district's provision of public education, 'is not generally understood as being carried out in the commercial, transactional manner that is characteristic of a 'business establishment.'' (Id.) Moreover, 'the focus of the Act is the conduct of private business establishments,' (which Defendant is not) as the Unruh Civil Rights Act and its predecessor statute were 'originally enacted in response to limitations placed by the U.S. Supreme Court on the federal government's ability to pass laws targeting the conduct of private entities; the action of state actors were not the focus of the state's first public accommodation laws or of the Unruh Civil Rights Act.' (Id. at p. 675.) Thus, while 'the phrase 'all business establishments of every kind whatsoever' must be interpreted as broadly as reasonably possible, its scope remains limited to entities acting as private business establishments.' (Id. at p. 678.) Thus, to the extent Plaintiff's first cause of action is premised on Civil Code section 51, that claim is subject to demurrer. However, Plaintiff has leave to amend her complaint to clarify how other Unruh Civil Rights Act sections that may be applicable, such as Civil Code section 54.

As to Defendants arguments concerning the second, third, and fourth causes of action, the court is not persuaded. Given that Plaintiff has leave to amend as to the disability discrimination claim, the better course is to allow the declaratory and injunctive relief claims to remain pending a future challenge to the amended pleading. Defendant's argument that Plaintiff did not include a claim for dangerous condition of property in her government claim form is unavailing; Plaintiff made the claim and included sufficient facts to apprise Defendant of the nature of the claim.

Finally, the court agrees that Plaintiff's fifth cause of action for negligence is not adequately pled. A cause of action for negligence will not lie when the alleged tortfeasor enjoys immunity for that particular cause of action. Here, Plaintiff alleges Defendant failed to exercise ordinary care in the hiring, training, and supervising Defendant's employees charged with maintaining and repairing what became dangerous public property. But under Government Code section 815.2, subdivision (b), Defendant is not vicariously liable 'for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability,' and a public employee is 'not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.' (Van Kempen v. Hayward Area Park, etc. (1972) 23 Cal.App.3d 822, 825; see also Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383 [upholding trial court's decision to sustain demurrer on negligence claim on analogous facts].) Accordingly, Defendant's demurrer is sustained with leave to amend.

Plaintiff has 30 days from entry of this order to file a second amended complaint.

The minute order is the order of the court.

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