Judge: Ronald F. Frank, Case: 24TRCV01424, Date: 2024-09-11 Tentative Ruling
Case Number: 24TRCV01424 Hearing Date: September 11, 2024 Dept: 8
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HEARING DATE: September 11, 2024¿¿
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CASE NUMBER: 24TRCV01424
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CASE NAME: John N. Gayed v. City
of Manhattan Beach, et al.
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MOVING PARTY: Defendant, State of California
RESPONDING PARTY: Plaintiff, John N. Gayed
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TRIAL DATE: Not
Set.
MOTION:¿ (1) Demurrer
Tentative Rulings: (1) SUSTAINED with
thirty (30) days leave to amend. Alternatively, Plaintiff could dismiss the State
without prejudice, conduct initial discovery against the other defendants to
ascertain whether another defendant will concede ownership, management, or
control of the relevant property location, or whether the facts would provide a
basis for leave to reinstate the State as a defendant
I. BACKGROUND¿¿
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A. Factual¿¿
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On April 26,
2024, Plaintiff, John N. Gayed (“Plaintiff”) filed a complaint against Defendants,
City of Manhattan Beach, County of Los Angeles, State of California, Salon Mar
LLC, Baron Equities, Inc., and DOES 1 through 50. The complaint alleges causes
of action (1) General Negligence; and (2) Premises Liability. The complaint
alleges that on June 26, 2023, the Defendants were negligent in the ownership,
control, management, design, construction, repair and/or maintenance of the
subject premises (505 N. Sepulveda Blvd., Manhattan Beach, CA 90266) by causing
and/or permitting an elevated extension to the pavement blocking the general
walkway, to be, among other things, in isolation of applicable standards and/or
code(s) and confusing, unclear and dangerous, thereby causing Plaintiff to trip
and fall and sustain serious injuries and damages.
Defendant,
State of California (“State”) now files a demurrer to Plaintiff’s
Complaint.
B. Procedural¿¿
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On July 8, 2024, State filed its demurrer to
Plaintiff’s complaint. On August 28, 2024, Plaintiff filed an opposition brief.
On September 4 2024, State filed a reply brief.
II. 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.)¿¿¿
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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, State demurs to Plaintiff’s complaint on the grounds that
it argues: (1) Plaintiff’s first and second causes of action fail to state
facts sufficient to constitute a valid cause of action because they fail to
allege any statutory basis for this claim of liability against the State and
the State is immune to any common law claim; (2) Plaintiff’s first and second
causes of action fail to allege facts with sufficient particularity to
constitute a valid cause of action against the State.
i.
Plaintiff’s complaint
fails to allege a claim for statutory liability against the State.
Except as otherwise provided by statute, “[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.”
(Gov. Code § 815, subd. (a).) “[T]his section ‘abolished all common law
or judicially declared forms of liability for public entities, except for such
liability as may be required by the federal or state Constitution. Thus, in the
absence of some constitutional requirement, public entities may be liable only
if a statute declares them to be liable’ [Citation.]” (Becerra v.
County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.) Consequently,
“public entities may be liable only if a statute declares them to be
liable.” (Tuthill v. City of San Buenaventura (2014) 223
Cal.App.4th 1081, 1088 (emphasis in the original).) It has been
established that there is no liability for California governmental entities in
the absence of an express statute or constitutional provision creating or
accepting liability. (Tolan v. State of California (1979) 100
Cal.App.3rd 980, 986.) It has been recognized that it is impermissible to
sue a public entity for common law negligence. (Torres v. Department of
Corrections and Rehabilitation (2013) 217 Cal.App.4th 844,
850.)
Moreover, “to state a cause of action [for government tort
liability] every fact essential to the existence of statutory liability must be
pleaded with particularity, including the existence of a statutory duty.”
(Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792,
802.)
In the case at bar, the Court notes that the complaint does
not contain any statutory allegations nor does it allege the general
allegations with the requisite specificity required to maintain a cause of
action against a public entity. In Plaintiff’s opposition brief, he argues that
the complaint has sufficiently alleged a dangerous condition of public property
and that he submits, for the first time on opposition, that under Government
Code section 815.2 and Streets and Highways Code sections 5611 and 5615, State
is liable.
First, as to the dangerous and unsafe condition argument,
this Court notes that although the Court recognizes that Plaintiff includes
buzz words/phrases such as “dangerous and unsafe condition”, this is
insufficient under Government Code Section 815, subdivision (a). Not only does
Plaintiff fail to allege any government statute generally (including Government
Claims Act), but Plaintiff’s complaint also fails to allege Government Code
Section 835, which covers for claims of “dangerous condition of public property.”
In fact, the Court notes that Plaintiff did not even check the box of “Prem. L-4”
on page 6 of the complaint alleging “Dangerous Condition of Public Property.”
In the event Plaintiff or Plaintiff’s
counsel are unfamiliar with the Government Claims Act or liability for
“dangerous condition of public property,” the Court turns their attention to Government
Code section 835, which 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 that either:
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
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.
(Gov.
Code, § 835.) A “dangerous
condition” is defined as “a condition of property that creates a substantial
(as distinguished from a minor, trivial or insignificant) risk of injury when
such property or adjacent property is used with due care in a manner in which
it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd.
(a).) “Whether property is in a dangerous condition often presents a question
of fact,” but may be a matter of law if a court “determines that no reasonable
person would conclude the condition created a substantial risk of injury when
such property is used with due care in a manner which is reasonably foreseeable
that it would be used.” (Mathews v. City of Cerritos (1992) 2
Cal.App.4th 1380, 1382.) “Liability for injury caused by a dangerous
condition of property has been imposed when an unreasonable risk of harm is
created by a combination of defect in the property and acts of third parties.
[Citations.] However, courts have consistently refused to characterize harmful third-party
conduct as a dangerous condition—absent some concurrent contributing defect in
the property itself.” (Hayes v. State of California (1974) 11 Cal.3d
469, 472.) Our Supreme Court noted that the basis for liability must include
“some physical feature of the property.” (Ibid.)
Here, it is clear that
Plaintiff’s complaint fails to allege any statutory liability against public
entities, including demurring defendant, State, in violation of Government Code
section 815. Instead, it appears that Plaintiff has merely alleged common law
negligence and premises liability on the State of California, a public entity.
Because the complaint, as alleged, does not meet the pleading standards under
the Government Claims Act, this Court notes that Plaintiff may not maintain a
cause of action against a public entity, including demurring defendant, State
of California. Thus, the demurrer is SUSTAINED on this deficiency alone. The
Court GRANTS thirty (30) days leave to amend to Plaintiff.
Further, since Plaintiff will be
amending the complaint, the Court instructs Plaintiff to ensure that the
amended complaint is also plead with specificity. Currently, Plaintiff’s
complaint alleges all liability against both public entities as well as private
entities. The Court notes that depending on the location of the alleged
accident, it would benefit Plaintiff’s future pleading to delineate between
allegations against the private defendants, and those alleged against the
public entities.
III.
CONCLUSION¿¿
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For the foregoing reasons, State
of California’s Demurrer is SUSTAINED. Plaintiff is be GRANTED with thirty (30)
days leave to amend.
State of California is ordered to give notice.¿¿¿¿
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