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.
TENTATIVE
RULING
DEPARTMENT |
32 |
HEARING DATE |
March
20, 2023 |
CASE NUMBER |
21STCV34866 |
MOTION |
Motion
for Judgment on the Pleadings |
MOVING PARTY |
Defendant
City of Los Angeles |
OPPOSING PARTY |
Plaintiff
Daniel Guss |
MOTION
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.
ANALYSIS
1.
STANDARD - MOTION FOR JUDGMENT ON THE PLEADINGS
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.
CONCLUSION AND ORDER
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.