Judge: Steven A. Ellis, Case: 22STCV20615, Date: 2024-09-10 Tentative Ruling

Case Number: 22STCV20615    Hearing Date: September 10, 2024    Dept: 29

Robles v. City of Los Angeles
22STCV20615
Demurrer of Defendant Caltrans.

Tentative

The demurrer is sustained with leave to amend

Background

On June 24, 2022, Rodolfo Robles (“Plaintiff”) filed a complaint against City of Los Angeles (“City”), California Department of Transportation, and Does 1 through 50, asserting causes of action for general negligence and premises liability/dangerous condition of public property, arising out of incident near Figueroa Street and 17th Street in Los Angeles on November 18, 2021, in which, Plaintiff alleges, he was riding an electric scooter on the sidewalk, his front tire “went into a drainage ditch where [the] cover was broken/misplaced,” causing him to fall off the scooter and sustain injuries.

On April 17, 2023, Plaintiff filed a First Amended Complaint (“FAC”) against the same defendants.  In the FAC, Plaintiff asserts two causes of action: (1) for negligence and negligence per se under Government Code sections 815.2, 815.6, 820, 830 and 835, and (2) premises liability under Government Code sections 835, 835.2(a), and 835.2(b).

On June 23, 2023, City filed its answer to the FAC.

On July 17, 2023, the Court, at the request of Plaintiff, dismissed all causes of action in the FAC against California Department of Transportation without prejudice.

On November 16, 2023, City filed a cross-complaint against California Department of Transportation and Roes 1 to 10.

On January 3, 2024, The People of the State of California, acting by and through the Department of Transportation, erroneously sued as California Department of Transportation (“Caltrans”), filed its answer to City’s cross-complaint.

On May 13, 2024, Plaintiff amended the FAC to bring California Department of Transportation back into the FAC, naming it as Doe 1.

On August 9, 2024, Caltrans filed this demurrer to the FAC.  Plaintiff filed an opposition on August 27, and Caltrans filed a reply on September 3.

Legal Standard

Code of Civil Procedure section 430.10 provides:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.”

A demurrer tests the legal sufficiency of the complaint or other pleading.  In ruling on a demurrer, the Court accepts as true “all material facts properly pleaded,” along with “matters that may be judicially noticed.”  (Centinela Freeman Emergency Medical Associates v. Health Net of California (2016) 1 Cal.5th 994, 1010; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court need not, however, accept the truth of contentions or conclusions of law contained in the pleading.  (Centinela, supra, 1 Cal.5th at p. 1010; Blank, supra, 39 Cal.3d at p. 318.) 

A demurrer may address only defects that appear on the face of the pleading; other than judicially noticeable facts, no other extrinsic evidence may be considered.  (Blank, supra, 39 Cal.3d at p. 318; Guardian North Bay, Inc. v. Super. Ct. (2001) 94 Cal.App.4th 963, 971-972.)

It is not the function of the demurrer to challenge the truthfulness of the properly pleaded allegations of the complaint.  The Court accepts as true “even improbable alleged facts” as a demurrer is not the correct procedural posture to address “plaintiff’s ability to prove the factual allegations.”  (Marina Pacific Hotel and Suites v. Fireman’s Fund Insurance Company (2022) 81 Cal.App.5th 96, 104-105; accord Hacker v. Homeward Residential (2018) 26 Cal.App.5th 270, 280.) 

Courts must “liberally construe the pleading with a view to substantial justice between the parties” and must “give the complaint a reasonable interpretation, reading it as a whole and its parts in context.”  (Marina Pacific, supra, 81 Cal.App.5th at p. 105.)

A demurrer may be sustained only if it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

“When the ground of demurrer is based on a matter of which the court may take judicial notice …, such matter shall be specified in the demurrer, or in the supporting points and authorities for the purpose of invoking such notice ….”  (Code Civ. Proc., § 430.70.)

Before filing a demurrer, the demurring party must meet and confer with the opposing party to determine “whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”  (Code Civ. Proc., § 430.41, subd. (a).)

Leave to amend should be granted when “there is a reasonable possibility that the defect can be cured by amendment.”  (Centinela, supra, 1 Cal.5th at p. 1010; Blank, supra, 39 Cal.3d at p. 318; Shaeffer v. Califia Farms (2020) 44 Cal.App.4th 1125, 1145.)

Discussion

The meet and confer requirement of Code of Civil Procedure section 430.41 has been satisfied. (Han Decl., ¶¶ 5 & 6.)

Caltrans demurs to the First Cause of Action (only) in the FAC, which is labelled as a cause of action for “Negligence and Negligence Per Se” and references Government Code sections 815.2, 815.6, 820, 830, 835.  Caltrans argues that the FAC fails to allege facts to support the First Cause of Action.

The Court begins its analysis with Government Code section 815, which states:

“Except as otherwise provided by statute:

(a) 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.

(b) 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.”

“Under the Government Claims Act, a tort action cannot be maintained against a government entity unless the claim is premised on a statute providing for that liability.”  (Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5tha 639, 652.  (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 798.)

In the First Cause of Action, Plaintiff identifies five statutes upon which Plaintiff bases his claim: Government Code sections 815.2, 815.6, 820, 830, 835.  The Court addresses each of these statutes, although not in numerical order.

First, Government Code section 835 establishes that, subject to certain limitations, a public entity is liable for injuries proximately caused by a dangerous condition of public property.  (Gov. Code, § 835.)  But Plaintiff has already alleged a cause of action in the FAC based on a dangerous condition of public property – that is the Second Cause of Action.  There is no reason for Plaintiff to allege the same cause of action twice.  The demurrer is sustained to the extent that the First Cause of Action is duplicative and also based on Government Code section 835.

Second, Government Code section 830 is a definitional section, defining (among other things) the terms “dangerous condition” and “property of a public entity.  (Gov. Code, § 830.)  It does not, itself, establish any independent basis for the liability of a public entity.  The demurrer is sustained to the extent that the First Cause of Action is based on Government Code section 830.

Third, Government Code section 820 states that, subject to exceptions, “a public employee is liable for injury caused by his act or omission to the same extent as a private person.”  (Gov. Code, § 820, subd. (a).)  But in this cause of action against Caltrans, Plaintiff is seeking to hold Caltrans liable, not a public employee.  The demurrer of Caltrans is sustained to the extent the First Cause of Action is based on Government Code section 820.

Fourth, Government Code section 815.2 provides:

“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.” 

(Gov. Code, § 815.2, subd. (a).)  Under this statute, Plaintiff may seek to hold Caltrans liable for the tort of an employee that occurs within the scope of employment, but only if the tort “would, apart from this section, have given rise to a cause of action against that employee.”  Nothing in the FAC sets forth facts that would, apart from section 815.2, give rise to a cause of action against a Caltrans employee.  (See Yee v. Superior Court (2019) 31 Cal.App.5th 26, 40.)  The demurrer of Caltrans is sustained to the extent the First Cause of Action is based on Government Code section 815.2.

Fifth, Government Code section 815.6 provides for the liability of a public entity, under certain circumstances, when an entity fails to discharge “a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury,” and the failure proximately causes “an injury of that kind.”  (Gov. Code, § 815.6.)  In a cause of action under section 815.6, however:

 “Duty cannot be alleged simply by stating “defendant had a duty under the law”; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. … 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.”

(Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)  Nothing in the FAC identifies the mandatory duty on which Plaintiff bases his First Cause of Action – unless it is Government section 835, which, as noted above, is already the subject of the Second Cause of Action.  Accordingly, the demurrer of Caltrans is sustained to the extent the First Cause of Action is based on Government Code section 815.6.

Finally, the Court notes that Plaintiff alleges that the demurrer of Caltrans is defective because it challenges only one cause of action in the FAC, rather than the entire FAC.  Plaintiff cites no authority for this proposition, and the Court is aware of none.  The demurrer of Caltrans is not defective procedurally.

The Court SUSTAINS the demurrer of Caltrans to the First Cause of Action in the FAC.

As this is the first demurrer brought to the pleading in this matter, and as the basis for the Court’s order is a deficiency in pleading that could possibly be cured, the Court sustains the demurrer WITH LEAVE TO AMEND.

Conclusion

The Court SUSTAINS the demurer of The People of the State of California, acting by and through the Department of Transportation, to the First Cause of Action in the First Amended Complaint.

The Court GRANTS Plaintiff LEAVE TO AMEND within 15 days of notice.