Judge Ralph C. Hofer, Case Number: 24NNCV03963, Date: 2025-03-14 Tentative Ruling

Plaintiff Concesa Austria Ohao alleges that in October of 2023 at South Brand Boulevard near East Broadway in Glendale, defendant carelessly and negligently operated, maintained, employed, owned and entrusted a motor vehicle, a public bus, so as to cause bodily injury and property damage to plaintiff, a paying customer. Plaintiff alleges that the operator of the bus, violating its common carrier duty, made the bus lurch before plaintiff could be seated, causing plaintiff to fall to the floor and strike herself violently. It is alleged that defendant Los Angeles County Metropolitan Transportation Authority employed the persons who operated the bus in the course of their employment, owned the vehicle which was operated with its permission, and negligently entrusted the vehicle.

Here, the complaint was served by personal service on December 3, 2024. Thirty days from this date would have been January 2, 2025. The demurrer was filed and served on January 31, 2025, 29 days late. The moving papers indicate that the parties stipulated to a 30-day extension to file a responsive pleading. [Liao Decl., paras. 4, 5, Ex. B]. This agreement is beyond the 15-day extension permitted without leave of court, and it does not appear leave of court was obtained in advance of the filing of the demurrer. The court would be warranted in overruling the demurrer as untimely. The court will nevertheless consider the demurrer on its merits based on the stipulation of the parties, but all parties are cautioned that in the future the court may disregard pleadings not filed in conformity with the statutes, rules, and procedures governing this litigation.

Defendant Los Angeles County Metropolitan Transportation Authority (LACMTA) argues that the motor vehicle negligence cause of action asserted in plaintiff’s complaint, the sole cause of action, is insufficient as it fails to allege a violation of a statute declaring that LACMTA, a public entity, is liable to plaintiff, and fails to allege facts with particular sufficiency.

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.”

Here, the single cause of action in the form complaint, for Motor Vehicle, alleges that, “the acts of defendants were negligent…” [Complaint, MV-1]. There is no statutory basis for liability alleged in connection with the cause of action or anywhere in the complaint.

In Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 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.)

Defendant LACMTA also argues that the complaint indicates that plaintiff is attempting to hold LACMTA independently liable for the actions of its bus operator, but fails to articulate any material facts to indicate that LACMTA itself was negligent.

Plaintiff in opposition concedes that the complaint fails to allege any regulatory violation by code, but argues that the allegations of the complaint must be liberally construed, and explains how the factual allegations, in effect that defendant’s bus driver caused the bus plaintiff was a passenger on to lurch forward before plaintiff could be seated, sufficiently alleges a violation of CCP Title 13, Section 1217 (e), Vehicle Code Section 17001, Civil Code section 2100, and Government Code section 815.2.

Plaintiff disregards the legal authority cited by defendant which imposes a heightened pleading standard when alleging claims against a public entity. It is also not clear how each of the statutes cited, with the possible exception of Government Code section 815.2, would permit negligence liability to be imposed on a public entity.

“(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.”

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 which would, apart from the section, give rise to a claim against the employee, or how the other statutes apply. This requirement seems particularly critical here where there is no statute identified giving rise to direct liability of the public entity, and the vicarious liability claim is not tied to statute, nor pled with particularity with respect to what actionable conduct in which the moving defendant engaged. Hence, it is not clear how the public entity would be responsible under statute for the allegedly negligent acts of others.

Defendant requests that the demurrer be sustained without leave to amend. However, this 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…). In addition, plaintiff in the opposition suggests that statutes can be identified, and where lack of specificity is a ground for sustaining a demurrer, it would appear that such specifics could on amendment be attempted to be alleged. One opportunity to amend will be permitted.

The Court notes that the demurrer is untimely, filed and served 29 days late, beyond any 15-day extension to plead to which the parties were permitted to stipulate without advance leave of court. 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.

Defendant Los Angeles County Metropolitan Transportation Authority’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITH LEAVE TO AMEND on the ground the complaint in its sole cause of action for Motor Vehicle bases liability on the alleged negligent conduct of moving defendant, which defendant plaintiff alleges to be a public entity, but plaintiff 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 any statute gives rise to liability in this matter on the part of the public entity defendant.

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