Judge: Michael E. Whitaker, Case: 21STCV39030, Date: 2022-09-08 Tentative Ruling

Case Number: 21STCV39030    Hearing Date: September 8, 2022    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

MOTIONS

Plaintiff Raul Rodriguez sued defendant City of Downey based on injuries Plaintiff alleges he sustained while being carried and/or loaded onto a gurney by Defendant’s emergency medical transportation service.  Defendant demurs to Plaintiff’s sole cause of action for negligence.  Defendant also moves to strike portions of Plaintiff’s complaint.  Plaintiff opposes the demurrer.  Plaintiff has not filed an opposition to the motion to strike.  

ANALYSIS

1. DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Here, Defendant argues Plaintiff’s sole cause of action for “General Negligence” fails to allege facts sufficient to constitute a cause of action against Defendant as a public entity.  Specifically, Defendant argues the complaint does not allege either (1) facts showing that conduct by Defendant or its employees fell below the standard of care for a negligence cause of action; or (2) facts such as notice, ownership, and an alleged dangerous condition that are necessary to support a cause of action for dangerous condition of public property.  In opposition, Plaintiff argues, among other things, that the complaint pleads the essential facts to inform Defendant of the relationship of the parties and the nature of Defendant’s liability such that the cause of action is sufficiently pled.

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.)  According to the complaint, Plaintiff asserts his claim under Government Code sections 835 and 815.2.  (See Complaint, p. 5.) 

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.)

“‘Property of a public entity’ and ‘public property’ mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments, and other property that are located on the property of the public entity but are not owned or controlled by the public entity.”  (Gov. Code, § 830, subd. (c).)  A “dangerous condition” is a condition of public property that “create[s] 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 was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.)

Government Code section 815.2, subdivision (a), provides: “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”  (Gov. Code, § 815.2, subd. (a).)  Government Code section 820, subdivision (a), provides: “Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.”  (Gov. Code, § 820, subd. (a).)

            As to the underlying facts, Plaintiff’s first cause of action alleges, in relevant part:

“On or about October 17, 2020, Plaintiff was being transported from his home, on a gurney, to a medical facility by employees of Defendants CITY OF DOWNEY, a public entity; COUNTY OF LOS ANGELES, a public entity; OFFICE OF THE STATE FIRE MARSHAL, a public entity; and Does 1 to 50, inclusive. As Plaintiff’s gurney was being carried and/or loaded onto the emergency vehicle, suddenly and without warning, Defendants' employees dropped Plaintiff and the gurney he was being transported on, causing severe injury and pain to Plaintiff.

Defendants negligently, recklessly and/or wantonly owned, maintained, managed, operated, controlled and safeguarded the gurney Plaintiff was being transported on, such that a broken, defective and/or deteriorating gurney was allowed to exist and be left in disrepair. Defendants failed to warn of the dangerous condition, rendering the gurney dangerous and resulting in serious bodily injury to the Plaintiff. The actions of the Defendants and/or it's employees were below the standard of care and was the cause of Plaintiffs injuries.

(Complaint, p. 5.)   

The Court finds that Plaintiff’s first cause of action fails to allege facts sufficient to constitute a cause of action for dangerous condition of public property under Government Code section 835.  Notably, Plaintiff fails to allege a dangerous condition of public property that caused or contributed to Plaintiff’s claimed injury, of which Defendant had actual or constructive notice.  Instead, Plaintiff’s claim sounds in negligence; that is, an act or omission by Defendant’s employees with respect to their handling of medical equipment in their treatment and care of Plaintiff led to his claimed injuries.  Because the first cause of action states facts sufficient to invoke Defendant’s vicarious liability for the alleged negligent conduct of its employees under Government Code section 815.2, the Court overrules the demurrer.  (See Quelimane Co., Inc. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39 [a complaint is sufficient to withstand general demurrer so long as the essential facts of some valid cause of action are alleged].) 

2. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (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. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Here, Defendant moves to strike Plaintiff’s references to Government Code sections 835 and 815.2 from the complaint, arguing that such references are improper and reasserting its arguments concerning Plaintiff’s failure to allege facts sufficient to constitute a cause of action under either code provision.  Based on the Court’s analysis and ruling on the demurrer above, the Court finds Plaintiff’s reference to Government Code section 835 to be improper.  The Court therefore grants in part the motion to strike Plaintiff’s reference to Government Code section 835.

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to the first cause of action in the complaint.  The Court grants in part the motion to strike Plaintiff’s reference to Government Code section 835, without leave to amend,[1] and denies in part the motion to strike Plaintiff’s reference to Government Code section 815.2.  Finally, the Court orders Defendant to file and serve an answer to the complaint within 20 days of hearing on the demurrer and motion to strike.  

Defendant shall provide notice of the Court’s orders and file a proof of service of such.