Judge: Serena R. Murillo, Case: 21STCV22522, Date: 2023-04-26 Tentative Ruling

Case Number: 21STCV22522    Hearing Date: April 26, 2023    Dept: 29

TENTATIVE 

Defendant City of Montebello’s demurrer to the fourth cause of action for negligence is SUSTAINED with 30 days leave to amend.

Legal Standard 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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 pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) 

Meet and Confer 

The demurrer is accompanied by the declaration of Roger A. Colvin which satisfies the meet and confer requirement. (Code Civ. Proc. § 430.41.)  

Discussion

Defendant City demurs to the fourth cause of action for negligence against the City, arguing that (1) there is no common law tort liability for public entities in California under the Government Tort Claims Act; (2) it fails as a matter of law per Government Code section 835; and (3) it is duplicative of the fifth cause of action for dangerous condition of public property.

Government Claims Act

Government Code § 815 provides, in pertinent part, that, 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.” (Government Code § 815(a).) (See Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 341 (“A public entity…is subject to direct liability only as provided by statute or required by the state or federal Constitution. [Citations]”).) (See also San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 427-428.) 

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; or 

(b) 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.” 

Generally, the sole statutory basis for a claim imposing liability on a public entity based on the condition of the public entity’s property is Govt. Code, section 835. (Metcalf v. County of San Joaquin (2008) 42 Cal. 4th 1121, 1129; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112; Brown v. Poway Unified School District (1993) 4 Cal.4th 820.) Moreover, the fourth cause of action for negligence does not cite to any statutory authority. Further, under California law, there are grounds for a demurrer to a cause of action that adds nothing to the complaint by way of fact or theory.  (Award Metals, Inc. v. Superior Court (1991) 228 Cal. App. 3d 1128, 1135.) The fourth cause of action for negligence is also based on the same alleged dangerous condition of public property based on the same facts and theory as the fifth cause of action.

For all of these reasons, Defendant’s demurrer to the fourth cause of action for negligence is SUSTAINED.

Conclusion

Accordingly, Defendant City of Montebello’s demurrer to the fourth cause of action for negligence is SUSTAINED with 30 days leave to amend.

Moving party is ordered to give notice.