Judge Michelle C. Kim, Case 22STCV39192 2023-04-25 Tentative Ruling

Plaintiff Miriam Torres (“Plaintiff”) filed this action against defendants the City of Los Angeles (the “City”) and the County of Los Angeles for injuries Plaintiff sustained when a pothole in the street caused her to fall off the motorized scooter she was riding. The complaint alleges causes of action for general negligence and for premises liability. The premises liability claim includes counts for negligence, willful failure to warn, and dangerous condition of public property.

The City now demurs to the complaint arguing the complaint fails to state a claim against it. The City asserts that Plaintiff’s premises liability claim fails because the alleged dangerous condition that Plaintiff was injured by is outside the City’s jurisdiction, and it neither owns nor controls it. Further, the City avers that Plaintiff’s common law negligence cause of action fails because all tort liability against a public entity must be based on statute.

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).)

The City fulfilled this requirement prior to filing the demurrer. (Demurrer Shikibu Decl. ¶¶ 6-10.)

The City requests judicial notice be taken of (1) Map 675 of the Thomas Guide Los Angeles Street Guide, 55th Edition, (2) U.S. Census Bureau data of the City of Los Angeles and census-designated place East Los Angeles, and (3) a screenshot of, ad printout from, the Department of Regional Planning page of the County of Los Angeles official website about its East Los Angeles office. The City asserts the judicially noticeable evidence tends to show the subject location where the incident occurred is outside the City’s jurisdiction.

The request is granted as to (1) Map 675 of the Thomas Guide Los Angeles Street Guide, 55th Edition and (2) U.S. Census Bureau data of the City of Los Angeles and census-designated place East Los Angeles. (Evid. Code § 452(h).) The request is denied as to the screenshot.

c. 1^st C/A for Premises Liability, Count One for Negligence and Count Two for Willful Failure to Warn and 2^nd C/A for General Negligence

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, the complaint alleges, “As Plaintiff was traveling on her motorized scooter along the street, she hit a pothole causing her to fall off her scooter resulting in Plaintiff sustaining serious and debilitating injuries and damages.” (Compl. at pp. 4, 5.) The complaint further alleges that defendants, including the City, allowed the dangerous condition to exist on the property. (Id.)

As to the general negligence claim and counts one and two of the premises liability claim, the complaint’s allegations on their face attempt to allege a claim for a dangerous condition of public property, not general negligence. In other words, despite the fact that Plaintiff checked boxes on the form Complaint indicating that she was making negligence claims, she did not provide sufficient allegations to support such claims; rather her allegations appear to relate to a dangerous condition of public property claim. Further, 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 City’s demurrer is sustained as to the general negligence claim and counts one and two of the premises liability claim.

Because this is a purely legal issue, the demurrer is sustained as to the first cause of action for negligence and counts one and two of the premises liability claim against the City without leave to amend.

“[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.)

In this case, the complaint alleges that the incident occurred near the premises of “5811 Whittier Blvd. City of Los Angeles, County of Los Angeles.” (Compl. at pp. 4, 5.) Further, the complaint alleges that the City owns the property on which the dangerous condition existed. However, the judicially noticed evidence shows that the subject location and alleged dangerous condition are not within the City. The property is located in East Los Angeles, an unincorporated portion of the County of Los Angeles. The judicially noticed evidence thus shows that the City did not own the subject property. The complaint alleges only that the City owned the subject property. It does not contain any allegations suggesting that the City controlled or was responsible for the property.

Therefore, the demurrer to the count for dangerous condition of public property of the premises liability claim is sustained.

The burden is on Plaintiff to show in what manner she 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.) In this case, Plaintiff does not oppose the demurrer or otherwise make any showing that the above defects can be cured to state a claim against the City.

The City’s demurrer is sustained to the count for dangerous condition of public property of the premises liability claim without leave to amend. The complaint against the City is ordered dismissed.

Hon. Michelle C. Kim

Judge of the Superior Court