Judge: Serena R. Murillo, Case: 22STCV31151, Date: 2023-04-11 Tentative Ruling
Case Number: 22STCV31151 Hearing Date: April 11, 2023 Dept: 29
TENTATIVE
Defendant
City of Los Angeles’ demurrer is SUSTAINED without leave to amend. Defendant’s
motion to strike is GRANTED without leave to amend. References to Government
Code sections 815.2(a), 815.4, and 820 are STRICKEN from the complaint.
Request for Judicial Notice
Defendant requests judicial notice
of Ordinance No. 184596 of the City of Los Angeles. The request is GRANTED
pursuant to Evidence Code sections 452(b) and 453.
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.)
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.)
Discussion
I.
Demurrer
A.
Meet and Confer
The demurrer and motion to strike are
accompanied by the declaration of Margaret Shikibu which satisfies the meet
and confer requirements. (Code Civ. Proc. §§ 430.41; 435.5.)
B.
Merits
City demurs to the
second, third, and fourth causes of action for violations of mandatory
duties under: Streets and
Highways Code sections 5611 and 5615; Los Angeles Municipal Code, Chapter VI,
section 62.104; and Government Code section 835, arguing the causes of action
fail to state facts sufficient to constitute causes of action. As City asserts, Plaintiff’s claims are
premised upon a single instance of a dangerous condition of a public sidewalk
on which Plaintiff alleges she tripped and sustained injury; thus, only a
single cause of action for dangerous condition of public property under
Government Code section 835 is appropriate. In opposition, Plaintiff asserts
Government Code sections 815.2(a), 815.4, 820, 835,
840, and 945,
Streets and Highways Code sections 5611 and 5615, Los Angeles Municipal Code, Chapter VI,
section 62.104, and Government Code section 835 and
all impose mandatory statutory duties upon City to protect third persons from
harm occasioned by City’s failure to repair and maintain public sidewalks. Plaintiff
is incorrect.
Government
Code section 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.)
Plaintiff’s
second, third, and fourth causes of action assert violation of mandatory duties
under Government Code section 815.6, which provides, ”[w]here a public entity
is under a mandatory duty imposed by an enactment that is designed to protect
against the risk of a particular kind of injury, the public entity is liable
for an injury of that kind proximately caused by its failure to discharge the
duty.” (Gov. Code, § 815.6.) “Government Code section 815.6 contains a
three-pronged test for determining whether liability may be imposed on a public
entity: (1) an enactment must impose a mandatory, not discretionary, duty [citation]; (2) the
enactment must intend to protect against the kind of risk of injury suffered by
the party asserting section 815.6 as a basis for liability [citations]; and
(3) breach of the mandatory duty must be a proximate cause of the injury
suffered. [Citations.]” (E.g., Davila v.
County of Los Angeles (1996) 50
Cal.App.4th 137, 140 (Davila).) Courts have
construed the first prong strictly, finding a mandatory duty only if the
enactment “affirmatively
imposes the duty and provides implementing guidelines.” (Guzman v.
County of Monterey (2009) 46 Cal.4th
887, 898. (Guzman).) Moreover, the “mandatory nature of the duty
must be phrased in explicit and forceful language.” (Id. at
898-99.) The inclusion of the term “shall”
does not necessarily create a mandatory duty, as there may be “other factors
that indicate that apparent obligatory language was not intended to foreclose a
governmental entity's or officer's exercise of discretion.” (Id. at pp.
898–899.)
Whether an
enactment creates a mandatory duty is a question of law. (Haggis v.
City of Los Angeles (2000) 22 Cal.4th
490, 499 (Haggis).) As the Supreme
Court explained in Haggis,
The enactment’s language “is, of course, a
most important guide in determining legislative intent, [but] there are
unquestionably instances in which other factors will indicate that apparent
obligatory language was not intended to foreclose a governmental entity’s or officer’s
exercise of discretion.” [Citation.] Second, but equally important,
section 815.6 requires that the mandatory duty be “designed” to protect
against the particular
kind of injury the plaintiff suffered. The
plaintiff must show the injury is “ ‘one of the
consequences which the [enacting body] sought to prevent through imposing the
alleged mandatory duty.’ ”
[Citation.] Our inquiry in this regard goes to the legislative purpose of
imposing the duty. That the enactment ‘confers some benefit’ on the class
to which plaintiff belongs is not enough; if the benefit is “incidental” to the
enactment’s protective purpose, the enactment cannot serve as a predicate for
liability under section 815.6.
(Haggis, ibid.)
Defendant argues Streets and
Highways Code sections 5611 and 5615 do not impose a mandatory duty upon
Defendant such that Defendant may be held liable under Government Code section
815.6. Defendant argues the language of Sections 5611 and 5615 provide the
superintendent of streets discretionary authority to make determinations as to
the repair of sidewalks rather than a mandatory duty to do so. In opposition,
Plaintiff argues the language of these statutes imposes a mandatory duty on
Defendant to notify the fronting property owner to repair a sidewalk when it is
out of repair, and if the property owner does not repair it, Defendant must
repair the sidewalk.
Streets and Highways Code
section 5611 provides: “When any portion of the sidewalk is out of repair or
pending reconstruction and in condition to endanger persons or property or in
condition to interfere with the public convenience in the use of such sidewalk,
the superintendent of streets shall notify the owner or person in possession of
the property fronting on that portion of such sidewalk so out of repair, to
repair the sidewalk.” (Sts. & Hy. Code, § 5611.)
Streets and Highways
Code section 5615 provides:
“If the repair is not commenced and prosecuted with due diligence as required
by the notice, the superintendent of streets shall forthwith repair the
sidewalk....[and] may repair any other portion of the sidewalk fronting the
property that is designated by the owner. The superintendent shall have power
to prescribe the form of the written request. The cost of repair work done by
request pursuant to this section shall be a part of the cost of repairs...”.
(Sts. & Hy. Code, § 5615.)
Under the first
prong of Government Code section 815.6, the enactment must be obligatory rather
than merely discretionary or permissive in its directions to the public
entity. (County of Los Angeles (2002) 102 Cal.App.4th at
638–639.) In other words, it must require, rather than merely authorize
or permit, that a particular action be taken. (Ibid.) It is
not enough that the public entity or officer have been under an obligation to
perform a function if the function itself involves the exercise of
discretion. (Ibid.) These
provisions necessarily involve the exercise of discretion. They require the
superintendent of streets for a public entity to determine that the sidewalk at
issue is in a condition that endangers persons or property, or in a condition
that interferes with the convenience of the public. As such, neither Section
5611 nor the follow-up provision of Section 5615 can support a claim under
Government Code section 815.6. Moreover, as Defendant notes, the provisions do
not provide implementing guidelines, which is a requirement to finding a
mandatory duty. (See Guzman v. County of
Monterey (2009) 46 Cal.4th 887, 898.)
Additionally,
it appears from their plain language that sections 5611 and 5615 were intended
to create an economic means of reimbursing the City of Los Angeles for the cost
of repairs from an adjacent property, and not to protect pedestrians who trip
and fall on the sidewalk. In Schaefer v. Lenahan (1944) 63
Cal.App.2d 324, the court addressed section 31 of the Improvement Act of 1911
as amended in 1935, from which the Streets and Highway Code, section 5600 et.
seq. is derived. The court explained the statute: “[P]rovides a statutory
method by which the city may collect the cost of repairs from the property
owner. The statute creates a duty on the party of the property owner to keep
the sidewalks in repair – but that duty is owed to the city, not to the traveler
on the sidewalk. The extent of the liability created is to pay for the repairs,
not to pay for damages to an individual, nor to reimburse the city if it is
compelled to pay such damages.” (Schaefer, supra, 63 Cal.App.2d
at 327; see also Dennis W. Williams v. Foster (1989) 216 Cal. App. 3d
510, 517.)
As such, Defendant’s demurrer to the second cause of
action for violation of mandatory duties under Section 5611 and Section 5615 is SUSTAINED without
leave to amend.
Defendant also argues
that Los
Angeles Municipal Code, Chapter VI, section 62.104 does not impose a mandatory
duty. Defendant argues the Board of Public Works is given the authority
to make determinations pertaining to the condition of sidewalks, and permission
to act if the adjacent landowner fails to act—but the code does not mandate the
examination and regulation of sidewalks. Thus, the Code is discretionary, and
does not impose a mandatory duty.
The
Court agrees. The plain language of the
municipal code at issue provides for many discretionary acts. For example,
subsection (c) states that repairs would be necessary “if the Board [of Public
Works] determines that a Sidewalk… is in a condition that endangers a person or
property…” (Los Angeles Municipal Code § 62.104(c).) Since the
Board of Public Works must make certain determinations, in their own
discretion, the municipal code cannot be read as a mandatory duty under Gov.
Code section 815.6.
Plaintiff argues in opposition that as
Plaintiff alleged, the sidewalk defect that caused the subject incident had
existed for several years prior to the subject incident, where an older version
of LAMC 62.104 was still in effect.
Prior to 2017, Los Angeles Municipal Code,
Chapter VI, section 62.104 provided:
“When a sidewalk,
driveway, or curb constructed on any street shall be in disrepair or in need of
reconstruction, or in a condition to endanger persons or property passing
thereon, or in a condition to interfere with the public convenience in the use
thereof, the Board may require that the owners or occupants of lots or portions
of lots fronting on said sidewalk... to repair or reconstruct the sidewalk...
EXCEPTION: Preventive measures and repairs or reconstruction to curbs,
driveways, or sidewalk required as a result of tree root growth shall be
repaired by the Board at no cost to the adjoining property owner.”
However,
the Court finds that even the older version of section 62.104 does not impose a
mandatory duty on Defendant. The older code
also requires use of discretion, despite its requirement that repairs as a
result of tree root growth “shall” be repaired by the Board at no cost to the
adjoining property owner. There is a wide latitude in discretion as to
how and when the repairs will be done. Thus, even if the older code
applied, Defendant’s demurrer would still be sustained.
Likewise, Government Code
section 835 does not invoke a mandatory duty to support the fourth cause of
action. There is no indication that the general statute for dangerous
conditions of public property affirmatively imposes any particular duty or
provides implementing guidelines for a particular duty.
As a
result, the demurrer is also SUSTAINED without leave to amend as to the third
and fourth causes of action for violation of mandatory duties.
II. Motion to Strike
Defendant
also moves to strike any and all references to Government Code sections
815.2(a), 815.4, and 820 from the complaint, arguing that based on the facts stated in the complaint, there
is only one cause of action permitted against the City, a public entity, as a
matter of law: dangerous condition of public property under § 835 of the
Government Code.
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.)
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.”
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 is not in conformity with the laws of this state. As noted above, the
complaint cannot seek to impose liability against a public entity due to a
dangerous condition of public property on some basis other than Govt. Code,
section 830 et seq.
Thus, Defendant’s
motion to strike is GRANTED without leave to amend. References to Government
Code sections 815.2(a), 815.4, and 820 are STRICKEN from the complaint.
Conclusion
Accordingly,
Defendant City of Los Angeles’ demurrer is SUSTAINED without leave to amend. Defendant’s
motion to strike is GRANTED without leave to amend. References to Government
Code sections 815.2(a), 815.4, and 820 are STRICKEN from the complaint.
Moving party is ordered to give notice.