Judge: Michael E. Whitaker, Case: 21STCV34866, Date: 2023-03-20 Tentative Ruling

Case Number: 21STCV34866    Hearing Date: March 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 







March 20, 2023




Motion for Judgment on the Pleadings


Defendant City of Los Angeles


Plaintiff Daniel Guss




Plaintiff Daniel Guss (Plaintiff) sued Defendant City of Los Angeles (City) based on injuries Plaintiff alleges he sustained while he was walking in a park and his foot made contact with a splintered edge of plywood which pierced Plaintiff’s foot.  City moves for judgment on the pleadings of Plaintiff’s Complaint. 


Plaintiff does not oppose the motion, but rather has submitted a proposed First Amended Complaint (FAC) and prays for leave to file the proposed amended complaint.






A motion for judgment on the pleadings has the same function as a general demurrer, but may be made after the time to demur has expired. (Code Civ. Proc., § 438, subd. (f).)  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1013.)  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.) 


a.     Governmental Statutory Liability


Government Code section 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. (Gov. Code, § 815, subdivision (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[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.) To state a claim against a public entity, “every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)


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, citing Brown v. Poway Unified Sch. Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.) Per Government Code section 835, “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.)


Government Code section 815.6 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.” (Gov. Code, § 815.6.) “It is not enough . . . that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898, internal quotations and citations omitted.)


Here, City argues the first cause of action does not specifically plead a statutory liability for a dangerous condition of public property.  The Court agrees.  Upon review, the Court finds the Complaint does not plead the existence of a statutory duty on the part of City to support Plaintiff’s claim for “Damages Based on Governmental Tort Liability and Negligence.” 


Next, City argues Plaintiff’s second cause of action fails because the two ordinances cited to support the imposition of a duty on City via Government Code section 815.6 are from the Los Angeles County Code of Ordinances and thus do not apply to City.  The Court agrees.  Accordingly, the Court finds Plaintiff has failed to cite to an enactment that would impose a mandatory duty on City via government Code section 815.6 to support his second cause of action. 


b.     California Public Records Act


In regard to Plaintiff’s third cause of action for “Violations of CPRA and Govt Code § 6259”, City argues Plaintiff has failed to state facts sufficient to constitute a cause of action for an alleged California Public Records Act (CPRA) violation.  Under Government Code section 7923.000, “[a]ny person may institute a proceeding for injunctive or declarative relief, or for a writ of mandate, in any court of competent jurisdiction, to enforce that person’s right under this division to inspect or receive a copy of any public record or class of public records.”  Here, Plaintiff has failed to allege a prayer for declaratory or injunctive relief in his Complaint, which are the only forms of remedy available to Plaintiff under the CPRA in a civil proceeding.  Accordingly, the Court finds Plaintiff has failed to state a claim under Government Code section 7923.000 based on his failure to indicate what type of relief he seeks pursuant to section 7293.000.


2.     Leave to Amend


Plaintiff has the burden of showing in what manner the first amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)


Here, Plaintiff has attached a proposed FAC to his opposition.  The Court notes that the proposed FAC cures the defects cited by City in the first and second causes of action.  Accordingly, the Court shall grant Plaintiff leave to amend. 




Therefore, the Court grants City’s motion for judgment on the pleadings, with leave to amend, and orders Plaintiff to file and serve the proposed amended complaint within 10 days of the hearing on the motion. 


City shall provide notice of the Court’s ruling and file a proof of service of such.