Judge Michelle C. Kim, Case 22STCV32130 2023-05-04 Tentative Ruling

Plaintiff Ingrid Day (“Plaintiff”) filed this action against defendants City of Los Angeles, City of Torrance, and Does 1-25 for damages relating to Plaintiff’s alleged trip and fall on a sidewalk. The complaint alleges causes of action for general negligence and premises liability. The premises liability claim includes counts for negligence, willful failure to warn, and dangerous condition of public property. On February 27, 2023, Plaintiff filed a Notice of Errata Re: Complaint providing that the premises liability claim erroneously states the incident occurred on “12/17/2022” and should say it occurred on “12/17/2021.” Further, Plaintiff clarifies the dangerous condition of public property claim is asserted against City of Los Angeles and City of Torrance.

Defendant City of Torrance (“Torrance” or “Defendant”) now demurs to the complaint arguing fails to state a valid cause of action against it. Plaintiff opposes the demurrer, and Torrance filed a reply.

Torrance asserts that the claims for general negligence and premises liability based on negligence and willful failure to warn fails to state a claim because Torrance is immune from liability pursuant to Government Code § 815(a). Further, Torrance contends that Plaintiff’s claim for premises liability based on dangerous condition of public property fails because the alleged incident did not occur with the boundaries of the city of Torrance and did not involve property owned, operated, maintained or controlled by Torrance. Torrance argues that Plaintiff should be sanctioned under CCP § 128.7 for pursuing this action against it.

In opposition, Plaintiff acknowledges that the general negligence claims cannot be asserted against Torrance. Plaintiff, however, contends the dangerous condition of public property claim sufficiently states a claim against Torrance. Plaintiff argues that Torrance does not show that it did not own, lease, rent, occupy, possess, design, construct, develop, landscape, operate, inspect, repair, maintain, modify, manage, control, and/or supervise, the subject premises.

In reply, Torrance argues that Plaintiff cannot plead facts linking Torrance to the location of Plaintiff’s injury, as the location is well outside the city of Torrance. Torrance avers that the complaint fails to allege any facts showing that Torrance owns, operates, controls or maintains the location.

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.)

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).)

Defendant fulfilled this requirement prior to filing the demurrer. (Demurrer Bean Decl. ¶ 26.)

Torrance requests judicial notice be taken of (1) the location of the address that corresponds with the accident scene (20100 Vermont Ave.) and the geographic boundaries of the City of Torrance, as referenced by the Los Angeles County Assessor Record for 20100 Vermont Avenue (Demurrer Request for Judicial Notice Exh. A); (2) the location of the address that corresponds with the accident scene (20100 Vermont Ave.) and the geographic boundaries of the City of Torrance, as referenced by the Properly in Question Assessor Identification Number 7351-033-031, Lot 60, Tract 467I, as shown on the County of Los Angeles Assessor's Map (Id. at Exh. B); (3) the geographic boundaries of the City of Torrance, as referenced by the 1974 City of Torrance Boundary Map (Id. at Exh. C); (4) the geographic boundaries of the City of Torrance, as referenced by the current City of Torrance Annexation Map (Id. at Exh. D); (5) Plaintiff’s complaint and the accident location of 20100 Vermont Ave., Torrance, CA 90502 (Id. at Exh. E); and (6) copies of Torrance’s email correspondence with Plaintiff’s counsel.

The request is granted as to items 1-5 pursuant to Evidence Code § 452(d), (h). The request is denied as to the emails referred to in item 6.

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; 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.) “[S]ection 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” (Per Metcalf v. County of San Juaquin (2008) 42 Cal.4th 1121, 1129.)

Here, Plaintiff acknowledges that the first cause of action for general negligence cannot be alleged against Torrance. (Opp. at pp. 1-2:28-3.) Per Metcalf v. County of San Juaquin (2008) 42 Cal.4th 1121, 1129, when a claim against a governmental entity is premised on the contention that the entity’s property was dangerous, Government Code § 835 is the exclusive remedy under which a plaintiff can pursue a claim.

Therefore, the Torrance’s demurrer is sustained as to the first cause of action general negligence. Because this is a purely legal issue, the demurrer is sustained as to the first cause of action for general negligence without leave to amend.

To the extent that Torrance also demurrers to the negligence and willful failure to warn counts of the premises liability claim, the Court notes these claims are not asserted against Torrance. They are asserted against Does 1-15 only.

“[A] public entity may not be held liable under section 835 for the dangerous condition of property that it does not own or control.” (Goddard v. Department of Fish and Wildlife (2015) 243 Cal.App.4th 350, 363; see Gov. Code §§ 830(c), 835.) Moreover, “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.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) “The limited and statutory nature of governmental liability mandates that claims against public entities be specifically pleaded. Accordingly, a claim alleging a dangerous condition may not rely on generalized allegations but must specify in what manner the condition constituted a dangerous condition.” (Goddard, 243 Cal.App.4th at 363 [internal citation omitted].)

In this case, the complaint alleges that Torrance “owned/controlled the sidewalk at or near 20100 Vermont Ave, Torrance, CA 90502, just north of Del Amo.” (Compl. at p. 5.) Torrance, however, argues that the subject location is located in the city of Los Angeles, not the city of Torrance. The judicially noticeable evidence shows that the subject location is located within the city of Los Angeles, which Plaintiff does not dispute. As Plaintiff argues, the complaint does not merely allege that Torrance owned the subject sidewalk. The complaint also alleges that it controlled the sidewalk. However, there are no allegations in the complaint as to how Torrance controlled the subject sidewalk located in a different city- the city of Los Angeles. Furthermore, the complaint does not allege with any particularity or specificity what factors or conditions made the sidewalk a dangerous condition. The complaint, thus, fails to plead a claim for dangerous condition of public property with the requisite specificity.

Torrance’s demurrer to dangerous condition of public property count in the premises liability cause of action is sustained. The burden is on Plaintiff to show in what manner Plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiff requests leave to amend the complaint to allege the claims against Torrance with more specificity. Because this is the first challenge to the complaint, Plaintiff will be granted leave to amend.

Defendant’s demurrer to the dangerous condition of public property count in the premises liability cause of action is sustained with twenty (20) days leave to amend.

A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

“[T]he safe harbor period is mandatory and the full 21 days must be provided absent a court order shortening that time if sanctions are to be awarded.” (Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 595.)

Here, Torrance failed to comply with the procedural requirements of CCP § 128.7. The request for sanctions is denied.

Hon. Michelle C. Kim

Judge of the Superior Court