Judge: Michael E. Whitaker, Case: 23SMCV05292, Date: 2024-02-08 Tentative Ruling

Case Number: 23SMCV05292    Hearing Date: February 8, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

Defendant City of Santa Monica (“Defendant”) demurs to all three causes of action alleged in Plaintiff Raymond Ghermezian’s (“Plaintiff”) Complaint.  Defendant also moves to strike allegations of bodily injuries and emotional distress from the Complaint.  The motions are unopposed.

ANALYSIS

1.      DEMURRER

Defendant demurs to all three causes of action in Plaintiff’s Complaint on the basis that they failed to state facts sufficient to constitute causes of action against Defendant under Code of Civil Procedure section 430.10, subdivision (e).

“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 testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See 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.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    FAILURE TO STATE A CAUSE OF ACTION

                                                                    i.            First Cause of Action – Government Code Section 835 et seq

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.)

Here, Plaintiff alleges:

7. On or about May 8, 2023, Defendant, CITY OF SANTA MONICA owned, managed, maintained, and inspected the subject surface, at or near the corner of 1125 Harvard Street, Santa Monica, California 90403, notwithstanding said duty, allowed said driver to drive and be in a dangerous condition under Government Code Section § 835 so as cause driver to plaintiff property while the city employee truck, thereby proximately causing the plaintiff to sustain damages as set forth herein. Defendants CITY OF SANTA MONICA further allowed said dangerous condition to remain, notwithstanding the fact that Defendants knew or should have known that if the conditions remained in a hazardous and defective condition, it was inherently dangerous, and that failure to repair the area would cause severe injuries and even deaths. Defendants and its employees knew or should have known that the area was not safe.

8. Defendants CITY OF SANTA MONICA knew and/or should have known of the subject dangerous condition but failed to warn and/or repair, remedy the dangerous condition. The subject area posed as a dangerous and defective condition of public property constituting a substantial risk even when used with due care. Therefore, the subject dangerous condition, created a hazard to persons such as Plaintiff, who foreseeably would use the property with due care. Defendants and its employees failed to inspect and maintain the subject surface in a safe condition.

[…]

10. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, Defendants CITY OF SANTA MONICA and DOE Defendants 1 through 50, inclusive, owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built, managed and cleaned the subject sidewalk surface at or near the 1125 Harvard Street, Santa Monica, California 90403, which was involved in the incident hereinafter described.

11. That on or about May 8, 2023 at the aforementioned time and place, Defendants, CITY OF SANTA MONICA and DOE Defendants 1 through 50, inclusive, so negligently, carelessly and recklessly owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built, managed and cleaned subject surface at or near the 1125 Harvard Street, Santa Monica, California 90403, in a dangerous condition under Government Code Section 835, so as to cause Plaintiff's property to be hit by the city truck, thereby proximately causing the Plaintiff's property to sustain severe and permanent damages as set forth herein.

12. That on or about May 8, 2023, Plaintiff was lawfully within Defendants CITY OF SANTA MONICA premises for the mutual benefit of Plaintiff and Defendant, and each of them, and DOES 1 through 50.

13. That pursuant to Government Code Section 835, the dangerous condition was known, or in, the exercise of ordinary and reasonable care should have been known, to Defendants, and each of them, and DOES 1 through 50, in adequate time for a reasonable prudent person to have corrected the dangerous condition, or, to have properly warned persons, including Plaintiff, of the dangerous condition.

14. That as a proximate and direct result of the negligence, recklessness and carelessness of the Defendants, and each of them, and DOES 1 through 50, Plaintiff, RAYMOND GHERMEZIAN, has sustained, and in the future is certain to sustain disabling, serious and permanent injuries, pain, suffering and mental anguish in connection therewith, all to his general damages according to proof.

15. That as a further, direct and proximate result of the negligence, recklessness and carelessness of the Defendants, and each of them, Plaintiff, RAYMOND GHERMEZIAN, has incurred and will in the future incur medical and sundry expenses in the examination, care and treatment of his injuries, the exact nature and extent of which are unknown to Plaintiff at this time, and Plaintiff will ask leave of court to amend this complaint in this regard when the same are ascertained.

(Compl. ¶¶ 7-8, 10-15.)  Thus, Plaintiff alleges (1) the sidewalk was in a dangerous condition; (2) that proximately caused Plaintiff to become injured when a city employee truck crashed into Plaintiff’s property as a result of the dangerous sidewalk condition; and (3) that Defendant had actual or constructive notice and was negligent.  However, Plaintiff does not allege that the condition created a foreseeable risk of the kind of injury sustained.  Nor can the Court infer foreseeability from the allegations presented, as it is unclear exactly how the sidewalk is defective, or how a defective sidewalk surface caused a truck to collide with Plaintiff’s property, or what specific injuries Plaintiff sustained to analyze whether such injuries are reasonably foreseeable.

            Therefore, Defendant’s demurrer to the first cause of action is sustained.

                                                                  ii.            Second Cause of Action – Vicarious Liability

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).)

Plaintiff alleges:

17. Plaintiff is informed and believes and thereon alleges that, in doing the acts as heretofore alleged, Defendants CITY OF SANTA MONICA knew, or in the exercise of reasonable diligence should have known, that Defendants DOES 1-50 were incompetent and unfit to perform the duties for which they were employed and that an undue risk to persons such as Plaintiff would exist because of their employment.

18. Despite this advance knowledge, Defendants CITY OF SANTA MONICA acted with deliberate indifference and retained Defendants, DOES 1-50, as employees in conscious disregard of the safety of others. Defendants and each of them, knew or should have known of acts of the nature of which complained of herein occurring at CITY OF SANTA MONICA. Defendants, CITY OF SANTA MONICA consciously disregarded this knowledge, failed to adequately investigate, discover or correct such practices, resulting in the Plaintiffs property.

19. Defendants CITY OF SANTA MONICA and other unknown Defendants were indifferent to the safety of Plaintiff when they breached their duties by negligently hiring and retaining employees who were not emotionally, mentally and physically qualified, competent or fit to work for Defendants CITY OF SANTA MONICA. Defendants further failed to train, instruct, or supervise their employees with indifference to the rights of Plaintiff.

20. The conduct, acts and omissions of Defendants DOES 1-50 had been ratified, authorized, or otherwise condoned by Defendants CITY OF SANTA MONICA in its official capacity. As a proximate result of Defendants reckless acts and omissions, Plaintiff's safety was hindered, resulting in serious and permanent injuries to Plaintiff's property, and pain, suffering and mental anguish in connection therewith, all to his general damages according to proof.

Defendant contends that Plaintiff does not allege how he was injured by the incident, because later in the Complaint he alleges that he was not present at the time the garbage truck in question struck his property.  To wit, under the third cause of action, Plaintiff alleges:

26. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, defendant CITY OF SANTA MONICA was the owner of the Los Angeles City Garbage Disposal truck, which was involved in the collision herein described.

27. That on or about May 8, 2023, while plaintiff RAYMOND GHERMEZIAN was not home, the defendants, and each of them, and DOES 51 through 100, inclusive, negligently, recklessly and carelessly operated their motor vehicles, so as to cause the same to strike and collide with plaintiffs property, thereby proximately causing the plaintiffs property to be seriously damaged, as hereinafter described, and further proximately causing the plaintiff property to sustain damages, as hereinafter described.

(Complaint ¶¶ 26-27.)

The Court disagrees.  In addition to pain and suffering and mental anguish, Plaintiff also alleges he has been injured in the form of property damage (See Complaint ¶ 20, alleging “permanent injuries to Plaintiff’s property[.]”)    

Therefore, Plaintiff’s demurrer to the second cause of action is overruled.

                                                                iii.            Third Cause of Action – Negligence

“[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.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

Here, Plaintiff’s third cause of action for negligence is not premised on any statutory duty.  (See Complaint ¶¶ 23-35.)  Therefore, Defendant’s demurrer to the third cause of action is sustained.

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, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

Here, Defendant moves to strike allegations of bodily injury and emotional distress, because Plaintiff alleges that he was not present during the incident when the city garbage truck collided with his property.  The Court agrees that there is a heightened pleading standard to allege a statutory cause of action against the government, and Plaintiff has not alleged any specific facts demonstrating physical or mental harm resulting from an incident that occurred when Plaintiff was not present.

As such, the Court grants Plaintiff’s motion to strike and strikes the requested allegations pertaining to physical and mental harm from the Complaint.

3.      LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the 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.) A 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 failed to meet its burden as he has failed to oppose both the demurrer and the motion to strike, and therefore does not address whether leave should be granted if either the demurrer is sustained or the motion to strike is granted. 

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Defendant’s Demurrer to the Second Cause of Action, and sustains without leave to amend Defendant’s Demurrers to the First and Third  Causes of Action. 

Further, the Court grants Plaintiff’s Motion to Strike in its entirety, and orders the requested allegations regarding physical and mental harm stricken from the Complaint. 

Further, the Court orders Defendant to file an Answer to the Complaint on or before February 22, 2024

Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  February 8, 2024                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court