Judge Sarah J. Heidel, Case Number: 23GDCV01733, Date: 2024-09-18 Tentative Ruling

Judge: Sarah J. Heidel, Case: 23GDCV01733, Date: 2024-09-18 Tentative Ruling

Case Number: 23GDCV01733 Hearing Date: September 18, 2024 Dept: V

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT V

ARGINE SHANLIAN,

Plaintiff,

vs.

CITY OF GLENDALE; PLAYCORE WISCONSIN, INC. a corporation; GAMETIME, a business organization; and DOES 1-100 Inclusive,

Defendants. Case No.: 23GDCV01733

Hearing Date: September 18, 2024 Time: 9:00 a.m.

[TENTATIVE] ORDER RE: DEFENDANT CITY OF GLENDALE’S DEMURRER TO COMPLAINT

MOVING PARTIES: Defendant CITY OF GLENDALE

RESPONDING PARTY: Unopposed

The court considered the moving papers.

BACKGROUND

Plaintiff Argine Shanlian (plaintiff) filed the complaint against defendants City of Glendale, Playcore Wisconsin, Inc., and Gametime on August 15, 2023. Plaintiff asserts negligence and dangerous condition of public property claims against defendants. She alleges she was injured while using playground equipment at Carr Park in the City of Glendale, California.

Defendant City of Glendale (defendant) filed the instant motion on May 28, 2024. No opposition has been received.

LEGAL STANDARD

A party may object to a complaint or cross-complaint; the party may file a demurrer, an answer, or both. (Code of Civ. Proc., § 430.30.) The demurrer may be filed within 30 days after service of the complaint or cross-complaint unless extended by stipulation or court order. (Code of Civ. Proc. § 430.40(a).)

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc. § 430.41.)

DISCUSSION

A. Meet and Confer

Defendant’s counsel sent a meet and confer letter to plaintiff’s counsel on April 15, 2024. (Decl. of Carl B. Arias, ¶ 2; Exh. 1.) On May 2, 2024, defendant’s counsel sent a follow up email to plaintiff’s counsel, but plainitff’s counsel did not reply. (Decl. of Carl B. Arias, ¶ 3.) On May 14, 2024, defendant’s counsel tried calling plaintiff’s counsel, but was told by his assistant that an email would be best. (Decl. of Carl B. Arias, ¶ 3.) Defendant’s counsel sent another email that

same day. (Decl. of Carl B. Arias, ¶ 3; Exh. 2.) the court finds defendant sufficiently attempted to satisfy the meet and confer requirement.

B. Demurrer to First Cause of Action – General Negligence

Defendant demurs to plaintiff’s complaint on the grounds that plaintiff’s first cause of action for general negligence does not state facts sufficient to constitute a cause of action under Code of Civil Procedure section 430.10(e).

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. (Gov. Code § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[T]o 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. [Citation.]” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) “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.” (Id.)

Defendant argues that plaintiff’s allegations are essentially a claim for an alleged dangerous condition of public property, not negligence, which plaintiff already brought in her second cause of action with the applicable found in Government Code sections 830-835.4. The court finds that plaintiff failed to identify the statutory authority to support its negligence claim, thus plaintiff failed to allege facts sufficient to constitute a cause of action for negligence.

Based on the foregoing, the court SUSTAINS defendant’s demurrer to the first cause of action of negligence in plaintiff’s complaint, as to defendant City of Glendale, with 20 days leave to amend from the date of notice of this order.