Judge: Richard Y. Lee, Case: 30-2022-01253480, Date: 2023-08-10 Tentative Ruling

Defendant, City of Newport Beach (the “City”) moves for an order sustaining a demurrer to the First Amended Complaint filed by Plaintiff, Ahmad J. Tukhi and the First Cause of Action for Premises Liability and Second Cause of Action for Negligence.

The Demurrer came on for hearing on 05/04/23, and was continued to 08/10/23 as Plaintiff’s former counsel, Mark Peacock’s Motion to be Relieved as Counsel of Record for Plaintiff, Ahmad Tukhi was then pending. (ROA 127.)

On 07/06/23, Attorney Peacock’s Motion to be Relieved as Counsel was granted with counsel ordered to resubmit a proposed order with the required information. (ROA 146.) On 07/07/23, a proposed order was resubmitted. (See ROA 147.) Said order has now been signed by the Court. The order relieving Attorney Peacock as counsel of record for Plaintiff is effective upon counsel filing proof of service of a copy of the signed order and the Court’s 07/06/23 Minute Order on the client and on all parties that have appeared in this case.

Meet and Confer

Code of Civil Procedure section 430.41, subdivision (a) requires that prior to filing a demurrer, “the demurring party . . . . meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer . . . .” As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (Code Civ. Proc. § 430.41(a)(1).)

Although it does not appear that a meet and confer occurred in person or by telephone, it appears that at the time before the demurrer was filed, the City’s counsel attempted to meet and confer concerning a demurrer, and Plaintiff’s then-counsel did not follow up on the meet and confer. As a result, the Court will address the demurrer.

No opposition to the arguments raised in the demurrer has been filed. Failure to oppose the demurrer may be construed as having abandoned the claims.  (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal.  Accordingly, we deem plaintiffs to have abandoned the issue”].) In addition, it is axiomatic the failure to challenge a contention in a brief results in the concession of that argument. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”]; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [“failure to address the threshold question ... effectively concedes that issue and renders its remaining arguments moot”]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [issue is impliedly conceded by failing to address it].) Based on the foregoing, the Court construes Plaintiff’s failure to oppose the demurrer as an abandonment of his claims.

In turn, the demurrer is SUSTAINED, with 40 days’ leave to amend, as to the First Cause of Action for Premises Liability.

As to the Second Cause of Action for Negligence, Plaintiff asserts a general negligence claim against the City, among others. Government Code section 815(a) provides that “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.” “Under the Government Claims Act (Gov. Code, § 810 et seq.), there is no common law tort liability for public entities in California; instead, such liability must be based on statute. [Citation.]” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.) “[A] public entity cannot be held liable for common law negligence.” (McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, 977.) Based on the foregoing, the demurrer to the Second Cause of Action for Negligence is SUSTAINED, without leave to amend.

Plaintiff to file an amended complaint as to the First Cause of Action within 40 days of the notice of ruling.

The City’s Request for Judicial Notice

The City requests judicial notice of a true and correct copy of Newport Beach Municipal Code Chapter § 12.56.010 – 12.56.080: Bicycles – Registration and Regulations (Ex. A); (2) a true and correct copy of Plaintiff’s Government Tort Claim Form submitted on September 20, 2021 (Ex. B).

As to Exhibits A and B, the City fails to establish that they are material for which judicial notice must be taken, under Evidence Code section 451 subdivision (a), which provides that judicial notice “shall be taken” of “[t]he decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Sections 3, 4, or 5 of Article XI of the California Constitution.” The City does not show that the Newport Beach Municipal Code or Newport Beach Bicycle Master Plan is a “charter.”

However, under Evidence Code section 452(b), judicial notice may be taken of “[r]egulations and legislative amendments issued by or under the authority of the United States or any public entity in the United States.” Thus, the Court might GRANTS the request as to Exhibit A under Evidence Code section 452(b) as a regulation issued by or under authority of the City.

As to Plaintiff’s Government Tort Claim Form, the City cites to Evidence Code sections 452(d) and 452(h). The Court GRANTS the request as to Exhibit B under Evidence Code section 452(h).

The Case Management Conference is continued to 11/2/2023 at 1:30 p.m.

The City to give notice.