Judge: Ronald F. Frank, Case: 23TRCV03604, Date: 2024-01-26 Tentative Ruling
Case Number: 23TRCV03604 Hearing Date: January 26, 2024 Dept: 8
HEARING DATE: January 26, 2024
CASE NUMBER: 23TRCV03604
CASE NAME: Maria Prado v. City of Los Angeles, et al.
MOVING PARTY: Defendant, City of Los Angeles, and Los Angeles World Airports
RESPONDING PARTY: Plaintiff, Maria Prado
TRIAL DATE: Not Set.
MOTION: (1) Demurrer
Tentative Rulings: (1) SUSTAINED with 30 days leave to amend
I. BACKGROUND
A. Factual
On October 27, 2023, Plaintiff, Maria Prado (“Plaintiff”) filed a Complaint against Defendants, City of Los Angeles, County of Los Angeles, and DOES 1 through 100. The Complaint alleges causes of action for: (1) Liability for Dangerous Condition of Public Property pursuant to Government Code § 835, et seq.; and (2) Vicarious Liability for the Wrongful Acts of Omissions by Public Entity Employees and/or Retention of Unfit Employee – CA Gov. Code § 815.2.
The Complaint is based on the allegation that on April 21, 2023, Plaintiff slipped and fell while trying to get into an airport wheelchair provided by an airport employee. Plaintiff asserts that Defendants breached their duty to ensure that the walkway was not in a dangerous condition.
Defendants, Los Angeles World Airports and City of Los Angeles (collectively, “LAWA Defendants”) now file a demur to Plaintiff’s Complaint.
B. Procedural
On December 15, 2023, LAWA Defendants filed this demurrer. On January 10, 2024, Plaintiff filed an opposition brief. On January 19, 2024, LAWA Defendants filed a reply brief.
II. GROUNDS FOR DEMURRER
LAWA Defendants demur to Plaintiff’s Complaint on the grounds that they argue the Second Cause of Action for Vicarious Liability for the Wrongful Acts or Omissions by Public Entity Employees and/or Retention of Unfit Employee (Cal. Gov. Code § 815.2) fails as a matter of law because Plaintiff has not pleaded facts sufficient to constitute a cause of action.
III. ANALYSIS
A. Legal Standard
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)
A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
B. Discussion
Here, LAWA Defendants argue that Plaintiff’s Second Cause of Action for Vicarious Liability fails as Plaintiff may not allege vicarious liability on behalf of a government employee on the basis of a premises liability – dangerous condition cause of action. California Government Code section 815 provides that “[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” except as provided by statute. (Govt. Code, § 815, subd. (a); Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) 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 v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)
“[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ . . . 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.” (Searcy, supra, 177 Cal.App.3d at 802.) A demurrer may be sustained where the plaintiff fails to allege a statutory basis for liability against a public entity. (Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 863-864 [affirming trial court’s sustaining a demurrer without leave to amend as to four tort causes of action where plaintiff failed to allege statutory basis—i.e., mandatory duty under Government Code section 815.6—for liability against public entity].)
Here, the only statute or enactment alleged in Plaintiff’s Complaint, besides the Government Code governing vicarious liability (Gov. Code § 815) is Government Code § 835. In opposition, Plaintiff asserts that her Complaint does not attempt to hold an employee liable for a physical defect in the public property, but rather alleges that a public employee was negligent in moving and handling the wheelchair which caused Plaintiff’s fall. (Opp. at p. 4.) However, with respect to the actions of the LAWA Defendants’ employees, Plaintiff’s Complaint alleges that LAWA Defendants allowed a dangerous condition to remain, and that the LAWA Defendants and their employees knew or should have known that the subject walkway surface was not safe. (Complaint, ¶ 9.) Plaintiff also alleges that Defendants and their employees failed to inspect and maintain the subject walkway surface in a safe condition. (Complaint, ¶ 10.) Plaintiff alleges that LAWA Defendants allowed for a dangerous condition under Government Code § 835, so as to cause her to slip and fall on a wheelchair provided by an employee. (Complaint, ¶ 13.)
The above allegations are the only references in Plaintiff’s complaint that mention any sort of affirmative action taken or failed to be taken by LAWA Defendants’ employees. The section of Plaintiff’s Complaint dedicated to her second cause of action makes no mention of a public employee moving or handling the wheelchair in a negligent way. Instead, the Complaint is riddled with generalized references to LAWA Defendants’ negligence or incompetence in performing the duties for which they were employed for, that made persons – such as plaintiff – at risk for injuries to their safety – however, Plaintiff does not (besides the allegations listed above) state what it is about the LAWA Defendants’ employees that should have put Defendants on notice of their unfit tendencies.
As such, LAWA Defendants are left to wonder what it is that Plaintiff is attempting to hold them accountable for as it pertains to the alleged dangerous condition. “A public entity is not liable for injuries except as provided by statute (§ 815) and . . . section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. [Citation.]” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129.) “[P]ublic entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but instead by the specific provisions set forth in section 830-835.4. Also, public employees’ liability for dangerous public property conditions resulting from the employees’ acts or omissions is provided by the special rules and limitations contained in sections 840-840.6.” (Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 825.)
Plaintiff’s opposition attempts to distinguish the cases cited to by Defendants. This attempt to distinguish Van Kempen and Longfellow v. Cnty. Of San Luis Obispo (1983) 144 Cal.App.3d 379, is unavailing in the context this Court understands Plaintiff’s pleadings as they are currently written. Plaintiff’s alleged basis of liability is slipping and falling while getting into a wheelchair. If it is the case that Plaintiff slipped and fell because of a dangerous condition on the ground -- and LAWA Defendants’ employees failed to move or handle the wheelchair in a way to catch Plaintiff -- then the root cause of the injury is the dangerous condition, and Plaintiff has not established a separate duty on behalf of the employee as required by statute. However, if Plaintiff is alleging, as the Complaint seems to suggest, that the LAWA Defendants’ employees failed to inspect and maintain the subject walkway surface in a safe condition, then Plaintiff would not be able to proceed on a claim of vicarious liability through Government Code § 815 when this protection is already afforded by Government Code § 835(a). Government Code section 835 states:¿“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 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…”
Additionally, even if Plaintiff’s allegation is that an employee-provided wheelchair caused her to fall and thus the wheelchair created the dangerous condition, the alleged negligence on behalf of the employee would, again, be governed by Government Code § 835(a). Lastly, although not raised in the moving papers on demurrer, but argued in an entire section in Plaintiff’s opposition brief, the demurring Defendants’ confusion about what it is Plaintiff is alleging to be the dangerous condition (versus the alleged separate negligence on behalf of the employees should instruct Plaintiff to amend her Complaint. For example, a claim alleging a dangerous condition “may not rely on generalized allegations but must specify in what manner the condition constituted a dangerous condition.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.) Here, Plaintiff’s Complaint fails to do so. Was the ground slippery? Was the wheelchair slippery? Was the ground wet? Did Plaintiff observe that her clothing was wet after her fall? Did the employees mis-place Plaintiff in her wheelchair regardless of the condition of the walkway? The Court does not have any answers to these questions because the Complaint fails to allege them.
Based on the above, LAWA Defendants’ demurrer is SUSTAINED with twenty (20) days leave to amend.
IV. CONCLUSION
For the foregoing reasons, LAWA Defendants’ Demurrer is SUSTAINED. Plaintiff is granted twenty (20) days leave to amend.
Defendant is ordered to give notice of the ruling unless both parties waive notice.