Judge Ralph C. Hofer, Case 22GDCV00691 2023-01-27 Tentative Ruling

Plaintiff Razmik Boghossian alleges that on January 14, 2022, plaintiff was injured on a public sidewalk in La Canada Flintridge, which was owned, operated or controlled by defendants Turn Around Communications, Inc., Charter Communications, Inc., and the City of La Canada Flintridge. Plaintiff alleges he was injured when he was walking on the subject sidewalk and fell due to a dangerous condition of the sidewalk, consisting of mule tape that was placed on the vault as a pulley during splicing work that was never removed. Plaintiff alleges that defendants failed to warn of the dangerous condition or make such condition safe.

Under CCP §436, the court may “upon motion made pursuant to Section 435, or at any time in its discretion” strike out “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court.”

The moving papers indicate that the parties agreed to a three week extension of time to respond to the service of the complaint. [Ex. A]. This date is beyond the 15-day extension period to which the parties are permitted to stipulate without leave of court. The court will consider the demurrer and motion to strike in light of the cooperation of the parties, but both sides are cautioned that the court may in the future refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation.

Plaintiff argues that defendant failed in support of the motion failed to submit a declaration indicating that moving party met and conferred in accordance with CCP § 430.41, which requires that before filing a demurrer, the demurring party must meet and confer:

“(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”

Plaintiff seems to argue that the demurring party did not submit proof that defendant met and conferred “in person or by telephone,” as the only meet and confer referenced in the moving papers is a written correspondence from defendant to plaintiff. [Ferrante-Alan Decl., para. 5, Ex. B]. Plaintiff attaches to the opposition a detailed written response to that correspondence by plaintiff to defendant. [Zadourian Decl., para. 2, Ex. 1].

It appears that the moving papers do not establish that the moving party met and conferred in person or by telephone, as required under the statute. However, the parties did exchange detailed correspondence addressing the issues now raised in the demurrer and motion to strike, and it appears that plaintiff’s response supports a reasonable conclusion that the parties had reached an impasse, such that challenges to the pleadings would be warranted. The court will not require further meet and confer at this time, but the parties are cautioned that in the future, the court expects to enforce the statutes, rules and procedures governing this litigation.

This statute is recognized to have eliminated common law claims for negligence against a public entity; liability must be based on statute. See, e.g., Mikkelsen v. State of California (1976, 2nd Dist.) 59 Cal.App.3d 621, 626-628; Torres v. Department of Corrections & Rehabilitation (2013, 2nd Dist.) 217 Cal.App.4th 844, 850 (“Although the complaint sounds in negligence, there is no common law tort liability for public entities in California.”)

It is accordingly held that when pleading negligence against a public entity, plaintiff must allege and identify the statute establishing the duty owed by the public entity. Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792.

“[I]n California all government tort liability is dependent on the existence of an authorizing statute or “enactment” (Gov. Code, § 815, subd. (a), 815.6; Tolan v. State of California ex rel. Dept. of Transportation, supra., 100 Cal.App.3d 980, 983; Morris v. State of California, supra., 89 Cal.App.3d 962, 964; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 808 [75 Cal.Rptr. 240]), 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. ( Susman v. City of Los Angeles, supra., 269 Cal.App.2d 803, 809.) Duty cannot be alleged simply by stating “defendant had a duty under the law”; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. (Id.; see also Rubinow v. County of San Bernardino (1959) 169 Cal.App.2d 67, 71 [336 P.2d 968].) Since the duty of a governmental agency can only be created by statute or “enactment,” the statute or “enactment” claimed to establish the duty must at the very least be identified.”

The City cites Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, in which the Second District affirmed judgment for defendant City after its demurrer to plaintiff’s complaint was sustained without leave to amend, noting that factual specificity is required in pleading statutory causes of action against public entities:

“Because recovery is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate. ( Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809 [75 Cal.Rptr. 240]; Vedder v. County of Imperial (1974) 36 Cal.App.3d 654, 659 [111 Cal.Rptr. 728]; County of Ventura v. City of Camarillo (1978) 80 Cal.App.3d 1019, 1025 [144 Cal.Rptr. 296]; Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar 1980) § 3.72.)

Plaintiff in opposition seems to argue that defendant’s argument that the cause of action is a “common law” claim does not appear from the face of the pleading, as that term is not used on the face of the Judicial Council Form Complaint. However, the General Negligence attachment to the Complaint alleges generally that defendants, including the City, “[b]y the following acts or omissions to act,…negligently caused the damage to plaintiff.” [Complaint, GN-1]. This allegation clearly bases the duty on which the cause of action is alleged on a duty to refrain from acting negligently, which would be recognized as a duty imposed by the common law. Unless a statutory basis for liability is alleged, the cause of action is subject to demurrer.

Plaintiff then argues that plaintiff is not required to cite to statutes in the complaint, arguing that the citations relied upon by the City require only particularity of the “facts” giving rise to liability. This assertion is contrary to the Government Code and statutory authority interpreting it, cited above. It would also appear to make little sense to require a plaintiff to plead with particularity each element required to establish statutory liability without requiring identification of the statute to ensure that all factual requirements are alleged. Plaintiff does not indicate how the cause of action here is in fact alleged with factual particularity in connection with statutory liability. Plaintiff then relies primarily on case law setting forth pleading standards in the context of non-statutory claims, which does not apply to this cause of action as alleged against a government entity which must be based on a statutory claim.

“(a) A public entity is liable for injury 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.”

“A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.”

“Except as provided by statute, 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 wasincurred, and that either:

In addition, plaintiff has pointed to no particular facts alleged which would support any of these theories. Facts are not alleged, for example, that an employee of the public entity engaged in any act or omission, that an independent contractor engaged in any act or omission, or that a dangerous condition was created by an employee or the City had notice of a dangerous condition. This requirement seems particularly critical here where there are multiple defendants, and it is not clear how the public entity would be responsible under statute for the acts of the other defendants.

is the original complaint in this matter, and it does not appear from the face of the complaint that it cannot be successfully amended, so plaintiff will be permitted one opportunity to amend. King v. Mortimer (1948) 83 Cal.App.2d 153, 158 (“unless [an original complaint] shows on its face that it is incapable of amendment, denial of leave to amend constituted an abuse of discretion, irrespective of whether leave to amend is requested…). Leave to amend is permitted.

The first cause of action is for Premises Liability and is alleged in three counts. Count One is not brought against the City, and Count Three is for Dangerous Condition of Public Property, and is not challenged by defendant in the motion to strike.

Defendant argues that Count Two, for “Willful Failure to Warn,” fails to state a statutory basis for liability against the City. The cause of action cites to Civil Code section 846, and alleges that defendants “willfully or maliciously failed to guard or warn against a dangerous condition…” [Prem.L-3].

Defendant argues that no statutory basis under the Government Code has been alleged, and that Civil Code section 846, which expressly applies to private property, is improper as to the City. Civil Code section 846 concerns permission to enter real property for recreational purposes, and applies to “An owner of any estate or other interest in real property…”

Plaintiff in opposition concedes that Civil Code section 846 applies to private parties and argues that since the claim is also stated against the two other named defendants, which are private entities, the claim must remain in the complaint, because the complaint cannot take one form against the City and another form against the other defendants. There is no legal authority cited for this argument, as it would appear that a complaint can most certainly take one form against one defendant and another form against another defendant in circumstances such as those presented here.

Plaintiff again argues that plaintiff is not required to cite statutes in the complaint, which argument will again be rejected, as discussed above. Plaintiff also cites the same statutes set forth in the opposition to the demurrer, but does not dispute that these statutes are not set forth in the pleading. It is also clear that the complaint alleges no facts supporting the application of any applicable statute at all, let alone with the requisite particularity.

The meet and confer declaration submitted with the demurrer and motion to strike fails to indicate that the parties met and conferred in person or by telephone, as required under CCP § 430.41. The Court has considered the written correspondence between the parties attached to both the moving papers and the oppositions and will not require the parties to further meet and confer prior to consideration of the demurrer and motion to strike. However, defendant is cautioned that the Court in the future will expect full compliance with all meet and confer obligations.

The Court notes that the demurrer and motion to strike are untimely, filed and served twenty days late. While the Court recognizes that the parties entered into a stipulation to permit an extension of time to respond to the initial complaint, the extension agreed to was several days beyond the 15-day period of time to which the parties are permitted to stipulate without leave of Court. See CRC Rule 3.110(d) Both parties are cautioned that in the future the Court may refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation.

Demurrer to Plaintiff’s Complaint is SUSTAINED WITH LEAVE TO AMEND on the ground the complaint in the second cause of action for General Negligence fails to allege a statutory basis for liability, fails to specifically identify the statute relied upon, and fails to allege with the required particularity facts showing how a statute gives rise to liability in this matter on the part of the public entity defendant.

Motion to Strike Portions of Plaintiff’s Complaint is GRANTED WITH LEAVE TO AMEND on the ground the premises liability cause of action is based on a statute which plaintiff concedes applies to private parties, not public entities, the particular Count of the cause of action, Count Two, does not identify a statutory basis for liability on the part of the public entity defendant, and fails to allege with the required particularity facts showing how a statute gives rise to liability in this matter on the part of a public entity. The allegations of Count Two only (Paragraph Prem.L-3), as against moving defendant the City only, are stricken from the Complaint.

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines. In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask. The Department D Judge and court staff will continue to wear face masks. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.