Calendar: 7

Date: 8/16/2024

Case No: 24 GDCV00018 Trial Date: None Set

Case Name: Khachaturyan v. City of Glendale, et al.

DEMURRER

MOTION TO STRIKE

Moving Party: Defendant City of Glendale

Responding Party: Plaintiff Lilit Khachaturyan (No Opposition)

RELIEF REQUESTED:

  Sustain demurrer to second cause of action of Complaint

  Strike first and second counts of first cause of action of Complaint

CAUSES OF ACTION: from (Form) Complaint

1) Premises Liability

Count One—Negligence

Count Two—Willful Failure to Warn

Count Three—Dangerous Condition of Public Property

2) General Negligence

SUMMARY OF FACTS:

 Plaintiff Lilit Khachaturyan alleges that in March of 2023 plaintiff was traveling on Gallery Way in Glendale when a poorly maintained tree fell on her vehicle while plaintiff was in it, causing damage to the vehicle and injury to plaintiff. Plaintiff alleges that plaintiff’s damages and injuries were the direct result of the negligent conduct of defendants City of Glendale and City of Los Angeles in owning, controlling and/or maintaining the tree.

 The file shows that on May 13, 2023 plaintiff filed a request for dismissal without prejudice of the complaint as to defendant City of Los Angeles only, which dismissal was entered as requested the same date. Moving defendant City of Glendale remains a defendant in the action.

ANALYSIS:

Demurrer

Second Cause of Action—General Negligence

Defendant City of Glendale demurs to the second cause of action of the form complaint for general negligence.

Defendant argues that the cause of action fails to state facts sufficient to state a cause of action because there is no statutory basis for the general negligence claim.

Under Government Code § 815:

“Except as otherwise provided by statute:

(a) 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.”

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.”)

  “The Tort Claims Act specifies that a public entity is not liable for tortious injury unless the liability is imposed by statute.” Colome v. State Athletic Com. (1996 2nd Dist.) 47 Cal.App.4th 1444, 1454.

It is held that when pleading negligence against a public entity, even where the negligence is that of the public entity directly, 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, 802.

In Searcy, the court of appeal affirmed the trial court’s order sustaining a demurrer on the ground a statutory duty had not been identified, holding:

“[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.”

Searcy, at 802.

The complaint here alleges that defendant City of Glendale is a “public entity.” [Complaint ¶ 5 (a)(4)]. The second cause of action does not identify or refer to any statute in connection with this cause of action. [Complaint ¶ GN-1]. The demurrer accordingly is sustained with leave to amend to permit plaintiff to identify the specific statute under which plaintiff intends to proceed.

The City argues that the demurrer should be sustained without leave to amend, arguing that dangerous condition of public property, not negligence, is the proper cause of action based on plaintiff’s allegations, and that plaintiff has already brought a dangerous condition claim as part of the first cause of action. Plaintiff has failed to file timely opposition to this motion, so she has failed to meet plaintiff’s burden of showing how the cause of action could be effectively amended. However, this is the original complaint in the matter, and it is held that in the case of an original complaint, plaintiff need not even request leave to amend: “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 or not.” King v. Mortimer (1948) 83 Cal.App.2d 153, 158, citations omitted.

 Here, it is not clear from the face of the complaint that the pleading could not be appropriately amended. The first cause of action, in fact, specifies several statutes on which liability of the City is alleged to be based. [Complaint ¶ Prem-L-5 (b)]. In addition, under the liberal rules of pleading, parties are permitted to plead duplicative, alternative, or even inconsistent causes of action. See Jackson v. County of Los Angeles (1997, 2nd Dist.) 60 Cal.App.4th 171, 177, 180.

One opportunity to amend is permitted.

Motion to Strike

First Cause of Action—Premises Liability, Count One—Negligence

 Defendant City of Glendale seeks to strike from the complaint the first and second counts of the first cause of action for premises liability. Those counts are for negligence and willful failure to warn.

 Defendant argues that there is no statutory basis for plaintiff’s allegations of negligence so that count one fails as a matter of law.

 The count itself does not refer to a statutory basis for liability, but the cause of action does allege, at paragraph Prem.L-5 (b), that the City is liable to plaintiff “for other reasons and the reasons for their liability are,” and goes on to state that those reasons include liability “under CCP 1714(a), 2338, Government Code § 815.2 (a), 820 (a), 835, 840.2.” [Complaint ¶ Prem.L-5 (b)].

 Defendant argues again that dangerous condition of public property, not negligence, is the proper claim based on the allegations, and does not challenge the sufficiency of count three for dangerous condition of public property.

 As set forth above, the cause of action does refer to the Government Code section under which the public entity can be liable for a dangerous condition of public property, Government Code § 835, under which:

  “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 was incurred, and that either:

    (a) A negligent or wrongful act or omission of an employee

of the public entity within the scope of his employment created the dangerous condition; or

    (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

“(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.”

 Defendant City of Glendale does not dispute that the facts alleged are sufficient to allege liability under this statute. The motion to strike count one accordingly is denied. However, the court will permit plaintiff on amendment to allege in count one itself the specific statute or statutes under which count one is being pursued.

First Cause of Action—Premises Liability, Count Two—Willful Failure to Warn

 Defendant City of Glendale argues that a claim for willful failure to warn comes from Civil Code section 846, which provides immunity to owners of real property when a claimant is injured using the property for recreational purposes.

 The form pleading states “Count Two—Willful Failure to Warn [Civil Code section 846].” [Complaint ¶ Prem.L-3].

 Civil Code section 846 provides, in pertinent part:

“An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.”

 Defendant argues that the law is settled and that this entire section does not apply to public entities. Defendant relies on Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 704-710, in which the California Supreme Court denied a petition for a writ of mandate directing the trial court to sustain a demurrer to a complaint brought against an irrigation district for the wrongful death of two teenaged girls who drowned in a canal owned by the district. The Court rejected an argument by the district that it was protected from liability under Civil Code section 846, reviewing the statutory language, legislative history, and case law, and held that the statutory provisions concerning recreational activities in connection with public entities, including Government Code sections 831.2, 831.4, and 831.8, “negative the applicability of section 846 to public entities.” Delta Farms, at 710. In response to the argument “that public entities are protected by section 846,” the Court stated, “We hold that they are not.” Id.

 This count, which is expressly based on Civil Code section 846, is improperly brought against defendant City of Glendale, a public entity, and the motion to strike this count is granted. The motion is granted with leave to amend for plaintiff to have one opportunity to state a count without reference to Civil Code section 846, and which specifies the statute or statutes upon which the count is based.

RULING:

[No Opposition]

Defendant City of Glendale’s UNOPPOSED Demurrer to Complaint is SUSTAINED WITH LEAVE TO AMEND on the ground the second cause of action for general negligence fails to allege a statutory basis for the cause of action as brought against defendant City of Glendale, which is alleged to be a public entity.

Defendant City of Glendale’s UNOPPOSED Motion to Strike Portions of Complaint:

Motion is DENIED as to count one for negligence of the first cause of action for premises liability, as statutory provisions are alleged at paragraph Prem.L-5 (b). If plaintiff would like to clarify the specific statute or statutes upon which plaintiff relies, plaintiff is permitted to do so on amendment.

Motion is GRANTED WITH LEAVE TO AMEND as to the second count for willful failure to warn on the ground the claim is stated to be brought under Civil Code section 846, which is held does not apply to public entities. Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 710. Such a claim, if viable, must be brought under a statute which applies to moving defendant City of Glendale as a public entity.

Ten days leave to amend, only as specified above, if possible.

The parties are ordered to meet and confer in full compliance with CCP §§ 430.41 and 435.5 before any further demurrer or motion to strike may be filed.

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED.

If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.

TENTATIVE RULING

Calendar: 7

Date: 8/16/2024

Case No: 24 GDCV00018 Trial Date: None Set

Case Name: Khachaturyan v. City of Glendale, et al.

DEMURRER

MOTION TO STRIKE

Moving Party: Defendant City of Glendale

Responding Party: Plaintiff Lilit Khachaturyan (No Opposition)

RELIEF REQUESTED:

  Sustain demurrer to second cause of action of Complaint

  Strike first and second counts of first cause of action of Complaint

CAUSES OF ACTION: from (Form) Complaint

1) Premises Liability

Count One—Negligence

Count Two—Willful Failure to Warn

Count Three—Dangerous Condition of Public Property

2) General Negligence

SUMMARY OF FACTS:

 Plaintiff Lilit Khachaturyan alleges that in March of 2023 plaintiff was traveling on Gallery Way in Glendale when a poorly maintained tree fell on her vehicle while plaintiff was in it, causing damage to the vehicle and injury to plaintiff. Plaintiff alleges that plaintiff’s damages and injuries were the direct result of the negligent conduct of defendants City of Glendale and City of Los Angeles in owning, controlling and/or maintaining the tree.

 The file shows that on May 13, 2023 plaintiff filed a request for dismissal without prejudice of the complaint as to defendant City of Los Angeles only, which dismissal was entered as requested the same date. Moving defendant City of Glendale remains a defendant in the action.

ANALYSIS:

Demurrer

Second Cause of Action—General Negligence

Defendant City of Glendale demurs to the second cause of action of the form complaint for general negligence.

Defendant argues that the cause of action fails to state facts sufficient to state a cause of action because there is no statutory basis for the general negligence claim.

Under Government Code § 815:

“Except as otherwise provided by statute:

(a) 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.”

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.”)

  “The Tort Claims Act specifies that a public entity is not liable for tortious injury unless the liability is imposed by statute.” Colome v. State Athletic Com. (1996 2nd Dist.) 47 Cal.App.4th 1444, 1454.

It is held that when pleading negligence against a public entity, even where the negligence is that of the public entity directly, 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, 802.

In Searcy, the court of appeal affirmed the trial court’s order sustaining a demurrer on the ground a statutory duty had not been identified, holding:

“[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.”

Searcy, at 802.

The complaint here alleges that defendant City of Glendale is a “public entity.” [Complaint ¶ 5 (a)(4)]. The second cause of action does not identify or refer to any statute in connection with this cause of action. [Complaint ¶ GN-1]. The demurrer accordingly is sustained with leave to amend to permit plaintiff to identify the specific statute under which plaintiff intends to proceed.

The City argues that the demurrer should be sustained without leave to amend, arguing that dangerous condition of public property, not negligence, is the proper cause of action based on plaintiff’s allegations, and that plaintiff has already brought a dangerous condition claim as part of the first cause of action. Plaintiff has failed to file timely opposition to this motion, so she has failed to meet plaintiff’s burden of showing how the cause of action could be effectively amended. However, this is the original complaint in the matter, and it is held that in the case of an original complaint, plaintiff need not even request leave to amend: “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 or not.” King v. Mortimer (1948) 83 Cal.App.2d 153, 158, citations omitted.

 Here, it is not clear from the face of the complaint that the pleading could not be appropriately amended. The first cause of action, in fact, specifies several statutes on which liability of the City is alleged to be based. [Complaint ¶ Prem-L-5 (b)]. In addition, under the liberal rules of pleading, parties are permitted to plead duplicative, alternative, or even inconsistent causes of action. See Jackson v. County of Los Angeles (1997, 2nd Dist.) 60 Cal.App.4th 171, 177, 180.

One opportunity to amend is permitted.

Motion to Strike

First Cause of Action—Premises Liability, Count One—Negligence

 Defendant City of Glendale seeks to strike from the complaint the first and second counts of the first cause of action for premises liability. Those counts are for negligence and willful failure to warn.

 Defendant argues that there is no statutory basis for plaintiff’s allegations of negligence so that count one fails as a matter of law.

 The count itself does not refer to a statutory basis for liability, but the cause of action does allege, at paragraph Prem.L-5 (b), that the City is liable to plaintiff “for other reasons and the reasons for their liability are,” and goes on to state that those reasons include liability “under CCP 1714(a), 2338, Government Code § 815.2 (a), 820 (a), 835, 840.2.” [Complaint ¶ Prem.L-5 (b)].

 Defendant argues again that dangerous condition of public property, not negligence, is the proper claim based on the allegations, and does not challenge the sufficiency of count three for dangerous condition of public property.

 As set forth above, the cause of action does refer to the Government Code section under which the public entity can be liable for a dangerous condition of public property, Government Code § 835, under which:

  “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 was incurred, and that either:

    (a) A negligent or wrongful act or omission of an employee

of the public entity within the scope of his employment created the dangerous condition; or

    (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

“(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.”

 Defendant City of Glendale does not dispute that the facts alleged are sufficient to allege liability under this statute. The motion to strike count one accordingly is denied. However, the court will permit plaintiff on amendment to allege in count one itself the specific statute or statutes under which count one is being pursued.

First Cause of Action—Premises Liability, Count Two—Willful Failure to Warn

 Defendant City of Glendale argues that a claim for willful failure to warn comes from Civil Code section 846, which provides immunity to owners of real property when a claimant is injured using the property for recreational purposes.

 The form pleading states “Count Two—Willful Failure to Warn [Civil Code section 846].” [Complaint ¶ Prem.L-3].

 Civil Code section 846 provides, in pertinent part:

“An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.”

 Defendant argues that the law is settled and that this entire section does not apply to public entities. Defendant relies on Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 704-710, in which the California Supreme Court denied a petition for a writ of mandate directing the trial court to sustain a demurrer to a complaint brought against an irrigation district for the wrongful death of two teenaged girls who drowned in a canal owned by the district. The Court rejected an argument by the district that it was protected from liability under Civil Code section 846, reviewing the statutory language, legislative history, and case law, and held that the statutory provisions concerning recreational activities in connection with public entities, including Government Code sections 831.2, 831.4, and 831.8, “negative the applicability of section 846 to public entities.” Delta Farms, at 710. In response to the argument “that public entities are protected by section 846,” the Court stated, “We hold that they are not.” Id.

 This count, which is expressly based on Civil Code section 846, is improperly brought against defendant City of Glendale, a public entity, and the motion to strike this count is granted. The motion is granted with leave to amend for plaintiff to have one opportunity to state a count without reference to Civil Code section 846, and which specifies the statute or statutes upon which the count is based.

RULING:

[No Opposition]

Defendant City of Glendale’s UNOPPOSED Demurrer to Complaint is SUSTAINED WITH LEAVE TO AMEND on the ground the second cause of action for general negligence fails to allege a statutory basis for the cause of action as brought against defendant City of Glendale, which is alleged to be a public entity.

Defendant City of Glendale’s UNOPPOSED Motion to Strike Portions of Complaint:

Motion is DENIED as to count one for negligence of the first cause of action for premises liability, as statutory provisions are alleged at paragraph Prem.L-5 (b). If plaintiff would like to clarify the specific statute or statutes upon which plaintiff relies, plaintiff is permitted to do so on amendment.

Motion is GRANTED WITH LEAVE TO AMEND as to the second count for willful failure to warn on the ground the claim is stated to be brought under Civil Code section 846, which is held does not apply to public entities. Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 710. Such a claim, if viable, must be brought under a statute which applies to moving defendant City of Glendale as a public entity.

Ten days leave to amend, only as specified above, if possible.

The parties are ordered to meet and confer in full compliance with CCP §§ 430.41 and 435.5 before any further demurrer or motion to strike may be filed.

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED.

If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.

TENTATIVE RULING

Calendar: 7

Date: 8/16/2024

Case No: 24 GDCV00018 Trial Date: None Set

Case Name: Khachaturyan v. City of Glendale, et al.

DEMURRER

MOTION TO STRIKE

Moving Party: Defendant City of Glendale

Responding Party: Plaintiff Lilit Khachaturyan (No Opposition)

RELIEF REQUESTED:

  Sustain demurrer to second cause of action of Complaint

  Strike first and second counts of first cause of action of Complaint

CAUSES OF ACTION: from (Form) Complaint

1) Premises Liability

Count One—Negligence

Count Two—Willful Failure to Warn

Count Three—Dangerous Condition of Public Property

2) General Negligence

SUMMARY OF FACTS:

 Plaintiff Lilit Khachaturyan alleges that in March of 2023 plaintiff was traveling on Gallery Way in Glendale when a poorly maintained tree fell on her vehicle while plaintiff was in it, causing damage to the vehicle and injury to plaintiff. Plaintiff alleges that plaintiff’s damages and injuries were the direct result of the negligent conduct of defendants City of Glendale and City of Los Angeles in owning, controlling and/or maintaining the tree.

 The file shows that on May 13, 2023 plaintiff filed a request for dismissal without prejudice of the complaint as to defendant City of Los Angeles only, which dismissal was entered as requested the same date. Moving defendant City of Glendale remains a defendant in the action.

ANALYSIS:

Demurrer

Second Cause of Action—General Negligence

Defendant City of Glendale demurs to the second cause of action of the form complaint for general negligence.

Defendant argues that the cause of action fails to state facts sufficient to state a cause of action because there is no statutory basis for the general negligence claim.

Under Government Code § 815:

“Except as otherwise provided by statute:

(a) 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.”

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.”)

  “The Tort Claims Act specifies that a public entity is not liable for tortious injury unless the liability is imposed by statute.” Colome v. State Athletic Com. (1996 2nd Dist.) 47 Cal.App.4th 1444, 1454.

It is held that when pleading negligence against a public entity, even where the negligence is that of the public entity directly, 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, 802.

In Searcy, the court of appeal affirmed the trial court’s order sustaining a demurrer on the ground a statutory duty had not been identified, holding:

“[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.”

Searcy, at 802.

The complaint here alleges that defendant City of Glendale is a “public entity.” [Complaint ¶ 5 (a)(4)]. The second cause of action does not identify or refer to any statute in connection with this cause of action. [Complaint ¶ GN-1]. The demurrer accordingly is sustained with leave to amend to permit plaintiff to identify the specific statute under which plaintiff intends to proceed.

The City argues that the demurrer should be sustained without leave to amend, arguing that dangerous condition of public property, not negligence, is the proper cause of action based on plaintiff’s allegations, and that plaintiff has already brought a dangerous condition claim as part of the first cause of action. Plaintiff has failed to file timely opposition to this motion, so she has failed to meet plaintiff’s burden of showing how the cause of action could be effectively amended. However, this is the original complaint in the matter, and it is held that in the case of an original complaint, plaintiff need not even request leave to amend: “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 or not.” King v. Mortimer (1948) 83 Cal.App.2d 153, 158, citations omitted.

 Here, it is not clear from the face of the complaint that the pleading could not be appropriately amended. The first cause of action, in fact, specifies several statutes on which liability of the City is alleged to be based. [Complaint ¶ Prem-L-5 (b)]. In addition, under the liberal rules of pleading, parties are permitted to plead duplicative, alternative, or even inconsistent causes of action. See Jackson v. County of Los Angeles (1997, 2nd Dist.) 60 Cal.App.4th 171, 177, 180.

One opportunity to amend is permitted.

Motion to Strike

First Cause of Action—Premises Liability, Count One—Negligence

 Defendant City of Glendale seeks to strike from the complaint the first and second counts of the first cause of action for premises liability. Those counts are for negligence and willful failure to warn.

 Defendant argues that there is no statutory basis for plaintiff’s allegations of negligence so that count one fails as a matter of law.

 The count itself does not refer to a statutory basis for liability, but the cause of action does allege, at paragraph Prem.L-5 (b), that the City is liable to plaintiff “for other reasons and the reasons for their liability are,” and goes on to state that those reasons include liability “under CCP 1714(a), 2338, Government Code § 815.2 (a), 820 (a), 835, 840.2.” [Complaint ¶ Prem.L-5 (b)].

 Defendant argues again that dangerous condition of public property, not negligence, is the proper claim based on the allegations, and does not challenge the sufficiency of count three for dangerous condition of public property.

 As set forth above, the cause of action does refer to the Government Code section under which the public entity can be liable for a dangerous condition of public property, Government Code § 835, under which:

  “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 was incurred, and that either:

    (a) A negligent or wrongful act or omission of an employee

of the public entity within the scope of his employment created the dangerous condition; or

    (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

“(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.”

 Defendant City of Glendale does not dispute that the facts alleged are sufficient to allege liability under this statute. The motion to strike count one accordingly is denied. However, the court will permit plaintiff on amendment to allege in count one itself the specific statute or statutes under which count one is being pursued.

First Cause of Action—Premises Liability, Count Two—Willful Failure to Warn

 Defendant City of Glendale argues that a claim for willful failure to warn comes from Civil Code section 846, which provides immunity to owners of real property when a claimant is injured using the property for recreational purposes.

 The form pleading states “Count Two—Willful Failure to Warn [Civil Code section 846].” [Complaint ¶ Prem.L-3].

 Civil Code section 846 provides, in pertinent part:

“An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.”

 Defendant argues that the law is settled and that this entire section does not apply to public entities. Defendant relies on Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 704-710, in which the California Supreme Court denied a petition for a writ of mandate directing the trial court to sustain a demurrer to a complaint brought against an irrigation district for the wrongful death of two teenaged girls who drowned in a canal owned by the district. The Court rejected an argument by the district that it was protected from liability under Civil Code section 846, reviewing the statutory language, legislative history, and case law, and held that the statutory provisions concerning recreational activities in connection with public entities, including Government Code sections 831.2, 831.4, and 831.8, “negative the applicability of section 846 to public entities.” Delta Farms, at 710. In response to the argument “that public entities are protected by section 846,” the Court stated, “We hold that they are not.” Id.

 This count, which is expressly based on Civil Code section 846, is improperly brought against defendant City of Glendale, a public entity, and the motion to strike this count is granted. The motion is granted with leave to amend for plaintiff to have one opportunity to state a count without reference to Civil Code section 846, and which specifies the statute or statutes upon which the count is based.

RULING:

[No Opposition]

Defendant City of Glendale’s UNOPPOSED Demurrer to Complaint is SUSTAINED WITH LEAVE TO AMEND on the ground the second cause of action for general negligence fails to allege a statutory basis for the cause of action as brought against defendant City of Glendale, which is alleged to be a public entity.

Defendant City of Glendale’s UNOPPOSED Motion to Strike Portions of Complaint:

Motion is DENIED as to count one for negligence of the first cause of action for premises liability, as statutory provisions are alleged at paragraph Prem.L-5 (b). If plaintiff would like to clarify the specific statute or statutes upon which plaintiff relies, plaintiff is permitted to do so on amendment.

Motion is GRANTED WITH LEAVE TO AMEND as to the second count for willful failure to warn on the ground the claim is stated to be brought under Civil Code section 846, which is held does not apply to public entities. Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 710. Such a claim, if viable, must be brought under a statute which applies to moving defendant City of Glendale as a public entity.

Ten days leave to amend, only as specified above, if possible.

The parties are ordered to meet and confer in full compliance with CCP §§ 430.41 and 435.5 before any further demurrer or motion to strike may be filed.

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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