Judge: Stephen P. Pfahler, Case: 24STCV05204, Date: 2024-11-18 Tentative Ruling

Case Number: 24STCV05204    Hearing Date: November 18, 2024    Dept: 68

Dept. 68

Date: 11-18-24 c/f 9-17-24

Case #24STCV05204

Trial Date: Not Set/Not At Issue

DEMURRER

MOVING PARTY: Defendant, City of Los Angeles

RESPONDING PARTY: Plaintiff, Mordchai Brafman, pro per

RELIEF REQUESTED

Demurrer to the Complaint

·         1^st Cause of Action: Negligence

SUMMARY OF ACTION

Plaintiff Mordchai Brafman alleges a contract with a third party, Sean Benaroya, for certain improvements to real property located in the City of Los Angeles. According to Brafman, Benaroya obtained all necessary permits and Brafman was only required to complete the work. Benaroya also allegedly guaranteed to supply all materials. A dispute broke out between Benaroya and Plaintiff. Ultimately, Benaroya requested an inspection from Defendant City of Los Angeles, which led to the issuance of an Order to Comply. Plaintiff maintains the relied upon information was false, and therefore the order erroneously issued. On January 30, 2024, Plaintiff in pro per filed a complaint for Negligence.

RULING: Sustained with Leave to Amend.

Request for Judicial Notice: Granted.

The court first notes a Department 72 denied a motion to consolidate, some if not all of the subject cases, including the instant action identified as: Brafman v. Banaroya, et al., 23STCV13274; Benaroya, et al. v. Brafman, 23STCV13274; Brafman v. Los Angeles Department of Water and Power, 23STCV30998; Brafman v. Rubi, 24STCV21508; Cohen v. Brafman, 24STCV15508; and, Brafman v. Cohen, 24STCV15508 (same identified case number as Cohen v. Brafman).

Defendant City of Los Angeles submits a demurrer to the complaint for negligence on grounds of immunity from any liability for the issuance of the Order to Comply. Plaintiff Brafman in opposition maintains City of Los Angeles remains liable under limited immunity in that “general immunity” only exists for discretionary acts completed within the scope of authority. City in reply reiterates the absolute immunities position, and lack of support for any exception as expressed in opposition.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

1^st Cause of Action: Negligence

“The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.” (Gov. Code, § 815, subd. (b).) “(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. (Gov. Code, § 815.2.) “Where 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 unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Gov. Code, § 815.6.) “A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.” (Gov. Code, § 818.4.) “A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.” (Gov. Code, § 818.6.) “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” (Gov. Code, § 818.8.) “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” (Gov. Code, § 822.2.)

City of Los Angeles maintains the conduct related to the inspection and issuance of the order for compliance categorically constitutes immune conduct. Plaintiff in opposition maintains Government Section 821.6 should be limited in application and denied “broad reading” for purposes of establishing immunity. Government Code section 821.6 reads: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” (Gov. Code, § 821.6.)

The gravamen of the complaint alleges false information in the order to comply report itself. [Comp., ¶ 25.] The City refused to reexamine the report at the request of Plaintiff, and maintains a “history” of previously correcting such reports. [Comp., ¶¶ 26-27, 30.] Plaintiff cites to Penal Code section 115 and appears to suggest a false or forged instrument was involved in the subject report. [Comp., ¶¶ 29, 32.] Nothing in the complaint specifically references Government Code section 821.6, and Plaintiff otherwise offers no response to the immunities provided under Government Code sections 818.4, 818.6, 818.8, and 822.2 in the opposition. While City of Los Angeles asks the court to sustain the demurrer without leave to amend, the court elects to allow leave to amend for the purpose of allowing Plaintiff to potentially address the actual immunity provisions before the court considers whether Plaintiff can state any non-immune cause of action as a matter of law.

The court grants Plaintiff 30 days leave to amend. Plaintiff may attempt to allege a basis of relief under any and all uncited section(s). Plaintiff may NOT add any new causes of action, damages claims or parties. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Any such claims will be subject to a motion to strike by any and all impacted parties.

The court will concurrently conduct the case management conference.

City of Los Angeles to give notice.