Judge: Robert C. Longstreth, Case: 37-2023-00023927-CU-PO-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00023927-CU-PO-CTL OSBORNE VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/15/2023

Defendant City of San Diego's Demurrer to Plaintiff's First Amended Complaint (ROA 15) is SUSTAINED IN PART WITHOUT LEAVE TO AMEND, and OVERRULED IN PART.

As to Plaintiff's first cause of action for Negligence, the demurrer is overruled. Defendant asserts Plaintiff has not pled this cause of action with sufficient specificity to establish liability under Government Code section 835. However, the court finds this cause of action is sufficiently alleged to survive demurrer. Plaintiff pleads the facts of the incident and the basis of her theory of liability against the City, including the condition that constituted a dangerous condition, and an allegation that the City had actual or constructive notice of the condition before the incident occurred. (FAC ¶¶ 16-18.) As to Plaintiff's second cause of action for Negligent Infliction of Emotional Distress, the City argues, among other things, that this cause of action is duplicative of the first cause of action for negligence. The court agrees. The factual allegations as to liability and damages in both causes of action are identical, and these allegations do not support recovery for emotional distress in the absence of physical injury.

Plaintiff does not suggest how any amendment could cure these deficiencies, and the court finds that any attempt to plead the second cause of action as an independent tort would be futile. Accordingly, the demurrer as to this cause of action is sustained without leave to amend.

In the memorandum supporting its demurrer, the City purports to demur to the third and fourth causes of action, even though those causes of action are not alleged against the City. The demurrer itself, however, as is appropriate given the challenged pleading, demurs to only the first and second causes of action. Accordingly, the court has disregarded the statements in the City's memorandum addressing the third and fourth causes of action. The court has also disregarded the statement in the City's memorandum asking that the court grant, in the alternative, 'its Motion to Strike Plaintiff's second through fourth causes of action, filed currently herewith,' since no such motion was ever filed, and since, even if it were, the City provides no suggestion as to why the court should, or could, grant a motion to strike a cause of action as to which its demurrer was overruled.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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