Judge: Serena R. Murillo, Case: 21STCV37153, Date: 2022-10-13 Tentative Ruling
Case Number: 21STCV37153 Hearing Date: October 13, 2022 Dept: 29
Bern J. Galvin v. County of Los
Angeles, et al.
TENTATIVE
Defendant City of Los Angeles’s motion to strike is GRANTED without leave to
amend.
Legal Standard
Any party, within the time allowed to respond to a
pleading may serve and file a notice of motion to strike the whole or any part
thereof. (Code Civ. Proc., § 435(b)(1).) The court may, upon a motion or at any
time in its discretion and upon terms it deems proper: (1) strike out any
irrelevant, false, or improper matter inserted in any pleading; or (2) strike
out all or any part of any pleading not drawn or filed in conformity with the
laws of California, a court rule, or an order of the court. (Code Civ. Proc., §
436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) The grounds for a motion to strike must
“appear on the face of the challenged pleading or from any matter of which the
court is required to take judicial notice.” (Code Civ. Proc., §
437.)
Motions to strike are
used to challenge defects in the pleadings not subject to demurrer. (Ferraro
v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an
objection that the complaint failed to state facts sufficient to constitute a
cause of action is ground for a general demurrer, not a motion to strike.].) Any
party may move to strike the whole or any part of a pleading within the time
allotted to respond to the pleading. (Code Civ. Proc., § 435, subd.
(b)(1).)
A notice of motion to strike a portion
of the pleading must quote in full the portions sought to be stricken except
where the motion is to strike an entire paragraph, cause of action, or
defense. (Cal. Rules of Court, rule 3.1322(a).)
Meet and Confer
The motion to strike is accompanied
by the declaration of Carol Attarian which satisfies the meet and confer
requirements. (Code Civ. Proc. § 435.5.)
Discussion
Defendant moves to strike the first cause of action for negligence, and all
references to Government Code sections 815.2, 815.4, 815.6, 820, 840.2, and the
phrase “inter alia,” arguing that Government Code section 835 is the only
statutory basis upon which a claim for dangerous condition of public property
may be brought.
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.)
Public entities cannot be liable for common law theories of general
negligence (Miklosy¿v. Regents of University of California¿(2008) 44 Cal.4th 876, 899 [“section 815 abolishes common law tort
liability for public entities”].)¿Therefore, liability against a public entity
must be authorized by statute.¿(Eastburn¿v. Regional Fire Protection
Authority¿(2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815(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; 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.”
The FAC alleges that on September 29, 2020, Plaintiff was skating south
of the LA River Trail near the underpass at Pacific Coast Highway. A
maintenance vehicle was negligently, wrongfully, and illegally parked in the
middle of the LA River Trail pathway at the very bottom of the PCH underpass,
in the shadow of the underpass, hidden from pedestrian view from Plaintiff’s
viewpoint. Said maintenance vehicle was
negligently owned, operated, maintained, leased, rented, or controlled, and
negligently, wrongfully, and illegally parked by Defendants. As Plaintiff
approached the underpass, the wrongfully and illegal parked vehicle became
apparent to him but only within a few feet of the vehicle, at which point he
could not stop in time because he was traveling down the hill at approximately
15 to 18 mph, and as a result, he violently collided with the vehicle.
(Complaint ¶ 7.)
The FAC goes on under the negligence
cause of action that Defendants and their employees and agents owed Plaintiff a
legal duty or duties to safely operate, position and park Defendants’
maintenance vehicle as to not harm the Plaintiff in so doing. Defendants and
their employees and agents breached their duty or duties to Plaintiff to safely
operate, position and park Defendants’ maintenance vehicle and Plaintiff was
thereby severely injured. Due to these acts and/or failures to act, Defendants,
and each of them, and their employees and agents are liable for Plaintiff’s
injuries under the Government Code, including inter alia, §§815.2, 815.4,
815.6, 820, 830.8, 835, and/or 840.2. (Complaint ¶ 14.)
Here,
Plaintiff cannot seek to assert a cause of action against Defendant City for
negligence based on the negligence of its employees/contractors, other than on
Govt. Code section 830 et seq. 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, supra, 42 Cal.4th
at 1129; Zelig, supra, 27 Cal.4th 1112; Brown, supra, 4 Cal.4th 820.)
In Longfellow
v. San Luis Obispo County (1983) 144 Cal.App.3d 379, the Court of Appeal
affirmed that claims against public entities arising from property defects must
be based on that condition—and cannot be based on theories of vicarious liability:
With respect to Plaintiffs’ cause of action pursuant to
section 815.2 of the Government Code, the law was settled by Van Kempen v.
Hayward Area Park Etc. (1972) 23 Cal.App.3d 822, 100 Cal.Rptr. 498, that
public entity liability for property defects is not governed by the general
rule of vicarious liability provided in section 815.2, but rather by the
provisions in sections 830 to 835.4 of the Government Code. A public employee
is not liable for injuries caused by a condition of public property where such
condition exists because of any act or omission of such employee within the
scope of employment.
(Id.
(emphasis added).) In continuation, the Senate legislative committee comment
which accompanies section 835 states the statute’s purpose with greater
precision: “The section is not subject to the discretionary immunity that
public entities derive from Section 815.2, for this chapter itself declares the
limits of a public entity's discretion in dealing with dangerous conditions of
its property.” (Id.)
Here, the
complaint’s cause of action for general negligence and all references to
Government Code sections 810, 815.2, 815.4, 815.6, 820, and 840.8 are not in
conformity with the laws of this state. As noted above, the complaint cannot
assert a cause of action for dangerous condition of public property on some
basis other than Govt. Code section 835, based on the factual allegations
pleaded, which are based on the same dangerous condition of public property. (Metcalf
v. County of San Joaquin (2008) 42 Cal. 4th 1121, 1129.) As such,
Defendant’s motion to strike is granted.
Plaintiff
argues that Defendant has improperly brought a motion to strike instead of a
demurrer because it moves to strike the entire cause of action for negligence.
However, the rule Plaintiff cites to in Ferraro v. Camarlinghi, supra, 161 Cal.App.4th at 529, only
states that when there is a failure to state a claim, the proper vehicle is a
demurrer. Here, the argument is that the negligence cause of action is not in conformity
with the laws of this state, and not that it fails to state a cause of action.
Thus, a motion to strike is proper.
Conclusion
Thus, Defendant’s
motion to strike is GRANTED without leave to amend.
Moving party is
ordered to give notice.