I. Background 

Plaintiff Susan Hill (“Plaintiff”) filed this action against defendants, City of Compton (“the City”) for damages arising out of a trip and fall over a displaced section of a concrete walkway.  The complaint alleges a single cause of action for premises liability.  

The City moves for judgment on the pleadings on the grounds that it is not liable for common law negligence. Plaintiff opposes the motion, and the City filed a reply. 

II. Motion for Judgment on the Pleadings 

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.”  (C.C.P. §438(b)(1) and (c)(1)(B)(ii).) 

“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]”  (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.)  “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.”  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Citations Omitted).)  The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).)   

The City argues Plaintiff has failed to allege any statutory authority to bring her premises liability claim against Defendant. Except as otherwise provided by statute, “[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.”  (Gov. Code § 815(a).)  “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]”  (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)  Consequently, “public entities may be liable only if a statute declares them to be liable.”  (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 (emphasis in the original). It has been established that there is no liability for California governmental entities in the absence of an express statute or constitutional provision creating or accepting liability. (Tolan v. State of California (1979) 100 Cal.App.3rd 980, 986.)  It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.) 

Here, the complaint alleges that Plaintiff “Tripped and fell on displaced section of concrete walkway greater than one inch in height differential causing her to fall and suffer radial fracture of the left arm among other injuries.” (Compl. at p. 4.) It is undisputed by the parties that a statutory basis must be alleged against the City to maintain an action against it. (See Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802 [to state a cause of action [for government tort liability] every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.].) The City’s argument that it is impossible for Plaintiff to cure the defect because no applicable statutory basis exists is not well-taken. Plaintiff avers this defect is easily capable of cure by alleging Gov. Code § 835 (dangerous condition of public property) and Gov. Code §815.6 (failure of City's Public Street Maintenance Department to perform its mandatory duties pursuant to enacted mandate). The Court agrees. The City is sufficiently apprised that the dangerous condition alleged is a displaced concrete walkway, and it is but a simple matter to add the proper statutory basis for Plaintiff to maintain her premises liability claim against the City.  

Lastly, the Court notes that the City raises a new argument on reply that Plaintiff’s claim against it is time-barred. Absent good cause, a party may not withhold arguments or evidence until the reply brief, thus effectively depriving the opposing party of its opportunity to respond to the evidence or argument. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446; Balboa Insurance Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010 [“points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before”].) The Court finds no good cause here.  

Therefore, the motion is granted with leave to amend. In consideration of the trial date’s proximity to the hearing, Plaintiff is granted five (5) days leave to amend.   

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 5th day of March 2024