Judge: Michelle C. Kim, Case: 22CHCV01203, Date: 2023-09-05 Tentative Ruling

Case Number: 22CHCV01203    Hearing Date: September 5, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

FABIAN SANCHEZ a minor individual, by and through his guardian ad litem JULIANA LUEVANO, 

Plaintiff(s),  

vs. 

 

LOS ANGELES UNIFIED SCHOOL DISTRICT, ET AL., 

 

Defendant(s). 

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      CASE NO: 22STCV29995 (R/T 22CHCV01203) 

 

[TENTATIVE] ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT 

 

Dept. 31 

1:30 p.m.  

September 5, 2023 

MATTHEW MARTINEZ, a minor individual by and through his guardian ad litem MARLENE AMAYA FLORES, 

Plaintiff(s),  

vs. 

JANELLE BRANNING, ET AL., 

Defendant(s). 

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I. Background 

On July 12, 2023, Plaintiff, Matthew Martinez, a minor and through his Guardian ad Litem, Marlene Amaya Flores (“Plaintiff”) filed his first amended complaint (“FAC”) against Defendants Janelle Branning, Olive Vista Middle School, and Los Angeles Unified District, alleging that Plaintiff was at Olive Vista Middle School, located in front of Janelle Branning’s residence, when Plaintiff was attacked by a dog under the control and ownership of Janelle Branning.  The Complaint asserts two causes of action for (1) negligence and (2) premises liability.  

Defendant Los Angeles Unified School District, erroneously sued as Los Angeles Unified School District and Olive Vista Middle School (“LAUSD”) now demurs to the FAC.  Plaintiff opposes the motion and LAUSD filed a reply.    

LAUSD demurs on the ground that Plaintiff’s second cause of action for premises liability, contending that Plaintiff fails to allege sufficient facts to constitute a statutory basis for liability against LAUSD, and that Plaintiff failed to establish what “dangerous condition” existed on LAUSD’s property.  

 

II. Meet and Confer Requirement 

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).)   

The Court finds LAUSD has fulfilled this requirement prior to filing its demurrer.  (Mot. Decl. Welden, 9.)  

 

III. Legal Standard - Demurrer 

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered.  (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 

 

A. Negligence and Premises Liability  

“The California Tort Claims Act provides that ‘a public entity is not liable for an injury,’ ‘except as otherwise provided by statute.’  (Gov. Code, § 815, subd. (a).)  As that language indicates, the intent of the Tort Claims Act is to confine potential governmental liability, not expand it.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179.)  Public entities cannot be liable for common law theories of general negligence.  (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [“section 815 abolishes common law tort liability for public entities”].)  Therefore, liability against a public entity must be authorized by statute.  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815, subd. (a) [“A public entity is not liable for an injury . . . except as otherwise provided by statute”].)    

“Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty.  [Citation].  However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable.  “‘[T]o state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’”  (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) 

“[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ . . . and to state a cause of action 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 District (1986) 177 Cal.App.3d 792, 802.)  A demurrer may be sustained where the plaintiff fails to allege a statutory basis for liability against a public entity.  (Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 863-864 [affirming trial court’s sustaining a demurrer without leave to amend as to four tort causes of action where plaintiff failed to allege statutory basis—i.e., mandatory duty under Government Code section 815.6—for liability against public entity].)     

Plaintiff alleges that, at the time of the attack, a teacher at LAUSD’s school physically closed the gate to separate Plaintiff and the dog from the schoolyard, which caused Plaintiff to be trapped and unable to seek safety on the other side of the gate, causing him to be attacked by a dog. (FAC at p. 6.) 

The FAC further alleges that under Government Code section 815.6 (injuries by employee within scope of employment), 815.4 (injuries by independent contractors), and 818.6 (mandatory duties): 

 

  1. Defendants acted in a joint venture and/or enterprise, and/or in an employee-employer, agent-principal, or some other relationship which caused the injuries and damaged alleged herein. 

 

  1. Defendants owned, managed, maintained, controlled, used, operated, supervised, inspected, and/or repaired the property involved in this incident….in a negligent, careless, reckless, unlawful, defective, and/or dangerous manner which were used in a foreseeable manner involving unreasonable damages and/or risk not reasonably apparent, without adequate warning, which caused injuries and damages to Plaintiffs, and each of them, as alleged herein. 

(FAC at p. 7.) 

Plaintiff has sufficiently pled allegations support a cause of action for negligence arising from LAUSD’s alleged employee, but not for premises liability – dangerous condition of public property. The FAC does not set forth the statutory basis for LAUSD’s liability in terms of dangerous condition of public property and does not cite to Government Code section 835.  “A public entity is not liable for injuries except as provided by statute (§ 815) and . . . section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.  [Citation.]”  (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129.) “[P]ublic entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but instead by the specific provisions set forth in section 830-835.4.  Also, public employees’ liability for dangerous public property conditions resulting from the employees’ acts or omissions is provided by the special rules and limitations contained in sections 840-840.6.”  (Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 825.)  

Plaintiff’s citation to Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, in which an absence of a fence or protective barrier constituted a dangerous condition, is unavailing. Here, it is not that there was a failure to build or failure to provide a structure that led to Plaintiff’s injuries, but rather an act or omission by an alleged employee. In Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, the California Supreme Court held that a plaintiff’s allegation of dangerous condition of public property must establish a physical deficiency in the property itself.  (Zelig, supra, at pp. 1135-1136.) Plaintiff has not alleged any structural defects or latent hazards to the already existing gate. It is clear from the arguments set forth that it was the alleged act of an employee physically closing the gate which forms the basis for Plaintiff’s claims against LAUSD, as opposed to any physical defects of any public property relating to the incident. 

Nevertheless, Plaintiff requests the Court permit 60 days for leave to amend to allow Plaintiff to inspect the subject gate, which Plaintiff expects to proceed in October 2023. The Court is not inclined to grant such a lengthy time for leave to amend. Accordingly, LAUSD’s demurrer to the second cause of action for premises liability is SUSTAINED without leave to amend at this time. However, should Plaintiff later determine a cognizable basis for dangerous condition of public property against LAUSD, Plaintiff will not be precluded from later filing a motion for leave to amend the complaint.  

 

Moving Defendant is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

Dated this 1st day of September 2023 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court