Judge Teresa A. Beaudet, Case 21STCV01265 2023-04-07 Tentative Ruling

michele s. jones, Plaintiff, vs. city of los angeles, et al. Defendants.	Case No.:	21STCV01265
	Hearing Date:	April 7, 2023
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR LEAVE OF COURT FOR PLAINTIFF TO FILE A THIRD AMENDED COMPLAINT

Plaintiff Michele S. Jones (“Plaintiff”) filed this action on January 12, 2021 against Defendants City of Los Angeles (the “City”), Los Angeles Zoo, and Adrianna Matthews.

Plaintiff filed a First Amended Complaint (“FAC”) on February 4, 2022 against the City, Los Angeles Zoo, Adrianna Matthews, and Margherita Matthews.

On July 27, 2022, the Court issued an Order sustaining GLAZA and Jacobson’s demurrer to the FAC in its entirety. The Court’s July 27, 2022 Order provides, inter alia, that “[t]he Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days, the Court orders GLAZA and Jacobson to file and serve a proposed judgment of dismissal within 30 days of the date of this order.”

On August 16, 2022, Plaintiff filed a Second Amended Complaint (“SAC”) against the City, Adrianna Matthews, Margherita Matthews, GLAZA, Service America Corporation, SSA Group, LLC, and SSA Group, Inc. The SAC asserts causes of action for (1) “motor vehicle,” (2) general negligence, (3) premises liability, and (4) products liability.

Plaintiff now moves for leave to file a Third Amended Complaint. The City and GLAZA oppose.[1]

Pursuant to ¿Code of Civil Procedure section 473(a)(1)¿, “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. (¿Code Civ. Proc., § 576.)

“[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (¿Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [internal citations omitted]¿.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….”

(Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530¿.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (¿Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448¿.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (¿Cal. Rules of Court, rule 3.1324, subdivision (a)¿.) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (¿Ibid.¿) Finally, “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (¿Cal. Rules of Court, rule 3.1324, subd¿. (b).)

Here, Plaintiff attaches as Exhibit A to the motion Plaintiff’s proposed Third Amended Complaint. Plaintiff indicates that she “seeks to amend facts to support the claims, along with additional government Code sections.” (Mot. at p. 2:22-23.) Plaintiff also indicates that she seeks to amend the complaint to “properly name parties and the additional theories of liability…” (Mot. at p. 4:18-19.) Plaintiff asserts that “the effect of the amendment will make no difference to Defendants because Plaintiff is not seeking to add ‘new’ causes of action, as Negligence was already plead in the original complaint. Plaintiff now is merely attempting to clean up the pleadings to make sure there is no ambiguity in the pleadings by separating the claims into separate causes of action.” (Zeesman Decl., ¶ 8.)

As an initial matter, the City asserts in its opposition that Plaintiff’s motion must be denied because she seeks leave to file an amended complaint that makes no amendment. The City asserts that “[t]he facts in the Second Amended Complaint are identical to those in the Third Amended Complaint. Plaintiff did not add any additional Government Code sections nor did she add any additional causes of action or theories of liability. The Government Code sections and the causes of action in the Second Amended Complaint are repeated verbatim in the Third Amended Complaint. Nor did Plaintiff make any amendment to ‘properly name parties.’ The parties that are identified in the Third Amended Complaint are pled in exactly the same fashion as they were in the Second.” (City’s Opp’n at p. 3:13-18.) GLAZA also asserts in its opposition that Plaintiff’s motion is moot because the proposed Third Amended Complaint is no different than the operative SAC.

The Court is also unable to identify any differences between the operative SAC and the proposed Third Amended Complaint. As set forth above, “[a] motion to amend a pleading before trial must…[s]tate what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.” (Cal. Rules of Court, Rule 3.1324, subd. (a)(3).) Plaintiff indicates in the motion that she “seeks to add the following additional causes of action for Motor Vehicle and Premises Liability as follows…” (See Mot. at p. 4:1-9.) But the operative SAC alleges causes of action for motor vehicle and premises liability.

In the reply, Plaintiff does not appear to dispute that the proposed Third Amended Complaint does not make any amendments to the operative SAC. Rather, Plaintiff asserts that “this is not a comparison of the Second and Third Amended Complaint but rather the difference between the First and the Third Amended Complaint.” But Plaintiff’s SAC is the operative complaint. Thus, Plaintiff could not be seeking to amend the First Amended Complaint via the instant motion to file a Third Amended Complaint.

The Court does not understand Plaintiff’s argument that “Plaintiff filed the Motion for Leave before the Demurrer to the Second Amended Complaint was filed to request this Court to follow the necessary changes from the First Amended Complaint.” Moreover, it does not appear to be accurate. Plaintiff filed the operative SAC on August 16, 2022. GLAZA filed a demurrer to the SAC on September 2, 2022 and a motion to strike portions of the SAC on September 7, 2022. The City filed a demurrer to the SAC and a motion to strike portions of the SAC on September 15, 2022. Thereafter, Plaintiff filed a motion for leave to amend on November 18, 2022 and January 3, 2023.

In light of the fact that Plaintiff does not seek to make any amendments to the operative SAC, the Court denies Plaintiff’s motion to file the proposed Third Amended Complaint.

Based on the foregoing, Plaintiff’s motion is denied. The City is ordered to give notice of this Order.

[1]As an initial matter, the Court notes that Plaintiff’s reply briefs in support of the instant motion request that the Court take judicial notice of its docket. Plaintiff did not file a separate request for judicial notice in connection with the motion. Under ¿Cal. Rules of Court, rule 3.1113, subdivision (l)¿, “[a]ny request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with ¿rule 3.1306(c)¿.” Moreover, the Court notes that “¿[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.¿” (¿Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Thus, any purported request for judicial notice by Plaintiff is denied.

Superior Court of California

County of Los Angeles

Department 50

michele s. jones, Plaintiff, vs. city of los angeles, et al. Defendants.	Case No.:	21STCV01265
	Hearing Date:	April 7, 2023
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEFENDANT GLAZA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT; DEFENDANT GLAZA’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT

Plaintiff Michele S. Jones (“Plaintiff”) filed this action on January 12, 2021 against Defendants City of Los Angeles (the “City”), Los Angeles Zoo, and Adrianna Matthews. The original Complaint alleged causes of action for (1) negligence, (2) premises liability, (3) negligence per se, (4) violation of Government Code § 835, (5) negligent hiring and retention, and (6) battery.

Plaintiff filed the First Amended Complaint (“FAC”) on February 4, 2022 against the City, Los Angeles Zoo, Adrianna Matthews, as well as Margherita Matthews. The FAC asserted causes of action for (1) general negligence, (2) premises liability, and (3) intentional tort.

On April 5, 2022, Plaintiff filed amendments to the complaint naming Greater Los Angeles Zoo Association, Inc. (“GLAZA”) in place of “Doe 1” and Thomas Jacobson (“Jacobson”) in place of “Doe 2.” On July 27, 2022, the Court issued an Order sustaining GLAZA and Jacobson’s demurrer to the FAC in its entirety.

On August 16, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against the City, Adrianna Matthews, Margherita Matthews, GLAZA, Service America Corporation, SSA Group, LLC, and SSA Group, Inc. The SAC asserts causes of action for (1) motor vehicle, (2) general negligence, (3) premises liability, and (4) products liability.

GLAZA now demurs to each of the causes of action of the SAC, and moves to strike portions of the SAC. Plaintiff opposes.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

First Cause of Action for Motor Vehicle and Fourth Cause of Action for Products Liability

Plaintiff’s first cause of action alleged in the SAC is for motor vehicle. Plaintiff’s fourth cause of action alleged in the SAC is for products liability. As GLAZA notes, these causes of action were not alleged in the FAC or the original Complaint.

As an initial matter, GLAZA asserts that Plaintiff is barred from pleading new causes of action after the Court sustained GLAZA’s demurrer to the FAC. “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [internal citation omitted]; see also People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785, “where the pleader, under section 473, seeks leave to amend in the form of adding new parties and the trial court grants him leave to amend, naturally such a broad grant to amend includes permission to add new parties…This situation is, however, different from the situation where the trial court sustains a demurrer to a pleading but grants leave to amend. In such a situation the granting of leave to amend is not a sanctioning of a particular amendment which the pleader has submitted to the trial court. Rather, as pointed out in Taliaferro, such granting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.”)

The Court’s July 27, 2022 Order on GLAZA and Jacobson’s demurrer to the FAC provides, inter alia, that “[f]or the foregoing reasons, the Court sustains GLAZA and Jacobson’s demurrer in its entirety. The Court denies the motion to strike as moot. The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days, the Court orders GLAZA and Jacobson to file and serve a proposed judgment of dismissal within 30 days of the date of this order.” (July 27, 2022 Order at pp. 5:22-6:4.) As GLAZA notes, the Court’s July 27, 2022 Order did not grant Plaintiff leave to plead new causes of action.

Based on the foregoing, the Court sustains GLAZA’s demurrer to the first cause of action for motor vehicle and the fourth cause of action for products liability, without leave to amend.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [internal quotations and emphasis omitted].)

In support of the second cause of action, Plaintiff alleges that on or about January 19, 2019, she was “walking near a bus being operated by an ostensible Zoo representative, when she was struck physically by Defendant Adrianna Matthews when Defendant Adrianna Matthew jumped off the commercial vehicle operated by Defendants. Plaintiff was a paying patron of the bus within the Zoo and was not protected from the vehicles/instrumentalities of the vehicle, including Defendants failure to warn or reasonably protect Plaintiff.” (SAC, p. 7.) Plaintiff also alleges that “Defendants negligently, carelessly and recklessly maintained and operated the common areas as to cause Plaintiff to suffer from physical injuries as alleged herein. Defendants were under a mandatory duty and failed to protect Plaintiff.” (SAC, p. 7.)

GLAZA asserts that Plaintiff again does not state what duty was owed by GLAZA, how that duty was breached by GLAZA, or how that breach of duty by GLAZA caused Plaintiff’s injuries. As GLAZA notes, Plaintiff does not allege specific facts demonstrating what alleged duty GLAZA had with regard to an alleged attack on the property of the Los Angeles Zoo.

Plaintiff counters that “Plaintiff did not merely state she was injured, she indicated in detail what transpired and how this Defendant was responsible and the reasons for liability of this Defendant.” (Opp’n at p. 4:26-28.) But Plaintiff does not point to any specific factual allegations in the SAC demonstrating why GLAZA had a legal duty to use due care, how it breached any such legal duty, and how such breach was a proximate cause of Plaintiff’s alleged injuries. Rather, the SAC includes the conclusory allegation that “Defendants were under a mandatory duty and failed to protect Plaintiff.” (SAC, p. 7)

The Court notes that on July 27, 2022, it sustained GLAZA’s demurrer to the general negligence cause of action in the FAC, and Plaintiff has again failed to state facts sufficient to constitute a cause of action for general negligence in the SAC. In addition, Plaintiff has not demonstrated any way that she could amend this cause of action to alleviate the problems discussed above. Accordingly, the Court finds that it is appropriate to sustain the instant demurrer to the second cause of action without leave to amend.

Pursuant to CACI 1000, to establish a claim for premises liability, plaintiff must prove all of the following: (1) that defendant owned/leased/occupied/controlled the property; (2) that defendant was negligent in the use or maintenance of the property; (3) that plaintiff was harmed; and (4) that defendant’s negligence was a substantial factor in causing plaintiff’s harm.

In support of her third cause of action for premises liability, Plaintiff again alleges that on or about January 19, 2019, she was “walking near a bus being operated by an ostensible Zoo representative, when she was physically struck by Defendant Adrianna Matthews [sic] jumped off the commercial vehicle. Plaintiff was a paying patron of the bus within the Zoo and was not protected from the vehicles/instrumentalities of the vehicles, including Defendants failed to warn or reasonably protect Plaintiff. Defendants negligently, carelessly and recklessly maintained and operated the common areas as to cause Plaintiff to suffer from physical injuries as alleged herein. Defendants were under a mandatory duty and failed to protect Plaintiff. Defendants negligently, carelessly, knowingly, and recklessly hired, supervised, trained the employees as to cause Plaintiff to suffer from physical injuries as alleged herein. Defendants were under a mandatory duty and failed to protect Plaintiff.” (SAC, p. 9.)

Count one of the premises liability cause of action is for negligence. The Court agrees with GLAZA that Plaintiff has not alleged sufficient facts to establish a cause of action for negligence against GLAZA, as discussed above.

Count two of the premises liability cause of action is for willful failure to warn (Civ. Code, § 846.) Civil Code section 846, subdivision (a) provides, “[a]n owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.” Civil Code section 846, subdivision (d)(1) provides that “[t]his section does not limit the liability which otherwise exists for any of the following: (1) Willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”

GLAZA notes that Plaintiff does not allege specific facts in the SAC demonstrating a willful failure to warn on the part of GLAZA. In her opposition, Plaintiff does not address Count Two of the premises liability cause of action (Willful Failure to Warn).

Count three of the premises liability cause of action is for dangerous condition of public property. Government Code section 835 provides, “[e]xcept 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 that 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.” Count three of the premises liability cause of action indicates that the defendants who allegedly owned public property on which a dangerous condition existed were the City. GLAZA is not listed.

The Court sustained GLAZA’s demurrer as to the premises liability cause of action in the FAC (as set forth in the Court’s July 27, 2022 Order), and Plaintiff has again failed to state facts sufficient to constitute a cause of action for premises liability in the SAC. In addition, Plaintiff has not demonstrated any way that she could amend this cause of action to alleviate the problems discussed above. Accordingly, the Court finds that it is appropriate to sustain the instant demurrer to the third cause of action without leave to amend.

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.)

GLAZA moves to strike portions of the SAC. Because GLAZA’s demurrer to each of the causes of action of the SAC is sustained, the Court denies GLAZA’s motion to strike as moot.

For the foregoing reasons, the Court sustains GLAZA’s demurrer in its entirety, without leave to amend. The Court denies the motion to strike as moot.

The Court orders GLAZA to file and serve a proposed judgment of dismissal within 30 days of the date of this order. (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 186 [“An order sustaining a demurrer without leave to amend is not a final judgment; a judgment of dismissal follows such an order as a matter of course.”].)

Judge, Los Angeles Superior Court

Superior Court of California

County of Los Angeles

Department 50

michele s. jones, Plaintiff, vs. city of los angeles, et al. Defendants.	Case No.:	21STCV01265
	Hearing Date:	April 7, 2023
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEMURRER OF DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF’S SECOND AMENDED COMPLAINT; DEFENDANT CITY OF LOS ANGELES’ MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED COMPLAINT

Plaintiff Michele S. Jones (“Plaintiff”) filed this action on January 12, 2021 against Defendants City of Los Angeles (the “City”), Los Angeles Zoo, and Adrianna Matthews.

Plaintiff filed a First Amended Complaint (“FAC”) on February 4, 2022 against the City, Los Angeles Zoo, Adrianna Matthews, as well as Margherita Matthews. The FAC asserted causes of action for (1) general negligence, (2) premises liability, and (3) intentional tort.

On April 5, 2022, Plaintiff filed to amendments to the complaint naming Greater Los Angeles Zoo Association, Inc. (“GLAZA”) in place of “Doe 1” and Thomas Jacobson (“Jacobson”) in place of “Doe 2.” On July 27, 2022, the Court issued an Order sustaining GLAZA and Jacobson’s demurrer to the FAC in its entirety.

The City now demurs to the first and third causes of action of the SAC, and moves to strike portions of the SAC. Plaintiff opposes.[1]

First, the City moves to strike the first and fourth causes of action of the SAC because “they were not authorized by the Court’s prior order.” (Mot. at p. 7:1-2.) The City appears to be referring to the Court’s July 27, 2022 Order on GLAZA and Jacobson’s demurrer to the FAC. The July 27, 2022 Order provides, inter alia, that “[f]or the foregoing reasons, the Court sustains GLAZA and Jacobson’s demurrer in its entirety. The Court denies the motion to strike as moot. The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days, the Court orders GLAZA and Jacobson to file and serve a proposed judgment of dismissal within 30 days of the date of this order.” (July 27, 2022 Order at pp. 5:22-6:4.) The Court’s July 27, 2022 Order did not grant Plaintiff leave to plead new causes of action, and the FAC only asserted causes of action for (1) general negligence, (2) premises liability, and (3) intentional tort.

“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [internal citation omitted]; see also People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785, “where the pleader, under section 473, seeks leave to amend in the form of adding new parties and the trial court grants him leave to amend, naturally such a broad grant to amend includes permission to add new parties…This situation is, however, different from the situation where the trial court sustains a demurrer to a pleading but grants leave to amend. In such a situation the granting of leave to amend is not a sanctioning of a particular amendment which the pleader has submitted to the trial court. Rather, as pointed out in Taliaferro, such granting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.”)

The City asserts that its motion to strike “Plaintiff’s SAC First and Fourth Causes of Action should be granted without leave to amend since Plaintiff has already filed 2 legally defective Complaints and those causes of action were not authorized by the Court.” (Mot. at p. 8:3-5.) In the opposition, Plaintiff asserts that she “has alleged various negligent and statutory claims against this Defendant and defined the species of negligence through this amended complaint. This is not a basis for demurrer and/or motion to strike.” (Opp’n at p. 5:7-9.) But Plaintiff does not address the City’s point that Plaintiff is now asserting two new causes of action for motor vehicle and products liability in the SAC, and Plaintiff likewise does not address the legal authority cited to by the City pertaining to amending a pleading following an order sustaining a demurrer with leave to amend. To the extent Plaintiff is arguing that the motor vehicle and products liability causes of action are “species of negligence” (Opp’n at p. 5:8), Plaintiff has not cited to any legal authority indicating that Plaintiff may allege such new causes of action following the Court’s order sustaining GLAZA’s demurrer to the FAC.

Based on the foregoing, the Court grants the City’s motion to strike to the first cause of action for motor vehicle and the fourth cause of action for products liability, without leave to amend.

Next, the City moves to strike the allegations that “Defendants were under a mandatory duty and failed to protect the plaintiff” on Page 7 of the second cause of action for general negligence. The City notes that “[t]he nature and extent of a public entity’s liability for an injury suffered on its property is governed by statute, specifically the Government Claims Act. [A] public entity is not liable for injuries except as provided by statute (§ 815) and … section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. [T]he intent of the [Government Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129 [internal quotations omitted].) The City asserts that accordingly, the sole statutory basis for a claim imposing liability on a public entity based on the condition of the public entity’s property is Government Code section 835; and Plaintiff has failed to plead facts establishing a cause of action for dangerous condition of public property under Section 835. However, the Court does not see why this is a basis for striking the words “Defendants were under a mandatory duty and failed to protect the plaintiff” from the second cause of action for general negligence. The second cause of action is not one for violation of Government Code section 835. Thus, the Court denies the City’s motion to strike the words “Defendants were under a mandatory duty and failed to protect the plaintiff” from the SAC.

Lastly, the City moves to strike “[a]ny and all references to any Government Code sections 815.2, 814.4, 815.6 and 818.6, 835, 840.2 and 840.4. including in the first and third causes of action.” (Mot. at p. 2:7-9.) As set forth above, the City’s motion to strike the first cause of action is granted. In addition, as discussed below, the Court sustains the City’s demurrer to the third cause of action. Accordingly, the City’s motion to strike the subject references to Government Code sections in the first and third causes of action is denied as moot. In addition, references to “Government Code sections 815.2, 814.4, 815.6 and 818.6, 835, 840.2 and 840.4” are not included in the second cause of action for general negligence or the fourth cause of action for products liability.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

Plaintiff’s first cause of action in the SAC is for “motor vehicle.” As set forth above, the Court grants the City’s motion to strike this cause of action without leave to amend. Thus, the City’s demurrer to this cause of action is overruled as moot.

The City asserts that the third cause of action for premises liability must fail.

As an initial matter, in the opposition, Plaintiff notes that she filed a motion for leave to file a third amended complaint. Plaintiff contends that this motion for leave to amend “seeks to address Defendant’s counsel’s issues and this Demurrer should be considered moot.” (Opp’n at p. 2:18-19.) But Plaintiff does not cite to any legal authority indicating that the filing of a motion for leave to amend a complaint would render a pending demurrer and/or motion to strike moot.

The Court also notes as an initial matter that Plaintiff states that she “requests judicial notice of the City’s contract with GLAZA” and “requests judicial notice of GLAZA’s contracts with co-Defendants related to the use of the subject property.” (Opp’n at p. 5:1-3.) Plaintiff did not file a separate request for judicial notice in connection with the opposition or provide copies of such contracts. Under Cal. Rules of Court, rule 3.1113, subdivision (l), “[a]ny request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” Cal. Rules of Court, rule 3.1306, subdivision (c) provides, inter alia, that “[a] party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material.” Plaintiff did not comply with the foregoing requirements. Thus, any purported request for judicial notice by Plaintiff is denied.

In support of her third cause of action for premises liability, Plaintiff alleges that on or about January 19, 2019, she was “walking near a bus being operated by an ostensible Zoo representative, when she was physically struck by Defendant Adrianna Matthews [sic] jumped off the commercial vehicle. Plaintiff was a paying patron of the bus within the Zoo and was not protected from the vehicles/instrumentalities of the vehicles, including Defendants failed to warn or reasonably protect Plaintiff. Defendants negligently, carelessly and recklessly maintained and operated the common areas as to cause Plaintiff to suffer from physical injuries as alleged herein. Defendants were under a mandatory duty and failed to protect Plaintiff. Defendants negligently, carelessly, knowingly, and recklessly hired, supervised, trained the employees as to cause Plaintiff to suffer from physical injuries as alleged herein. Defendants were under a mandatory duty and failed to protect Plaintiff.” (SAC, p. 9.)

Count one of the premises liability cause of action is for negligence. The City asserts that Count one is barred because public entities have no common law tort liability, and Plaintiff has failed to allege a statute that would impose liability on the City for negligence. Pursuant to Government Code section 815, subdivision (a), “[e]xcept 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.” “In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care…Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

Plaintiff does not specifically address the third cause of action in her opposition. However, Plaintiff asserts that “while Defendant claims they are not liable for common law tort liability, they are in fact liable for any negligent hiring, supervision, etc. related to motor vehicle negligence including pursuant to Gov’t Code section 835.” (Opp’n at p. 6:1-3.) In the demurrer, the City cites to de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 252 where the Court of Appeal noted that “[w]e find no relevant case law approving a claim for direct liability based on a public entity’s allegedly negligent hiring and supervision practices.” To the extent Plaintiff is asserting that the City is liable under Government Code section 835, that statute provides as follows:

“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 that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within

(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.” (Gov. Code., § 835.)

The City contends that Plaintiff does not allege facts demonstrating how Government Code section 835 creates liability on the part of the City, and that “plaintiff clearly alleges that the subject incident occurred when defendant Matthews jumped off the tram. By plaintiff’s own admission, plaintiff’s injuries were not caused by any physical condition of property but rather, by Matthew’s intentional act.” (Demurrer at p. 12:19-22.) Plaintiff does not respond to this point in the opposition, which the Court construes as a concession of the merits of the argument.

Plaintiff also alleges in support of the third cause of action that “Defendant City of Los Angeles is liable pursuant to Government Code sections 815.2, 815.4, 815.6, 818.6, 835, 840.2, and 840.4. Additionally the City and all Defendants are liable under Civ. Code section 3333.” (SAC, p. 10.) The Court does not find that Plaintiff has alleged with sufficient specificity how such statutes provide a basis for the City’s liability for a cause of action for premises liability. As noted by the City, “because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [internal quotations omitted].)

Count two of the premises liability cause of action is for willful failure to warn (Civ. Code, § 846). Civil Code section 846, subdivision (a) provides, “[a]n owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.” Civil Code section 846, subdivision (d)(1) provides that “[t]his section does not limit the liability which otherwise exists for any of the following: (1) Willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”

The City asserts that Civil Code section 846 is not applicable to public entities. The City cites to Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 704-705, where the California Supreme Court found that “the legislative history of section 846, when considered in conjunction with other matters then before the Legislature, leaves no doubt that public entity liability was then very much on the mind of the Legislature and that, had it intended to bring such entities under the umbrella of section 846, it would have said so.” The Delta Farms

Court noted that “[t]he purpose of section 846 is to encourage property owners to allow the general public to recreate free of charge on privately owned property.” (Id. at p. 707 [emphasis in original, internal quotations omitted].) Plaintiff does not address this point in the opposition.

Count three of the premises liability cause of action is for dangerous condition of public property. The City notes that “[a] claim alleging a dangerous condition may not rely on generalized allegations…but must specify in what manner the condition constituted a dangerous condition. A plaintiff’s allegations, and ultimately the evidence, must establish a physical deficiency in the property itself. A dangerous condition exists when public property is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself, or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347-1348 [internal quotations and citations omitted, emphasis in original.].) The City notes that Plaintiff does not allege that there was any physical deficiency of actual property that caused her injuries. Rather, Plaintiff alleges that she was “walking near a bus being operated by an ostensible Zoo representative, when she was physically struck by Defendant Adrianna Matthews jumped off the commercial vehicle…” (SAC, p. 9.) Plaintiff does not respond to this point in the opposition.

Based on the foregoing, the Court sustains the City’s demurrer to the third cause of action for premises liability, with leave to amend.

For the foregoing reasons, the Court sustains the City’s demurrer to the third cause of action, with leave to amend. The Court overrules the demurrer to the first cause of action as moot.

The Court grants the City’s motion to strike the first and fourth causes of action, without leave to amend. The Court denies the City’s motion to strike the allegations “Defendants were under a mandatory duty and failed to protect the plaintiff.” The City’s motion to strike “[a]ny and all references to any Government Code sections 815.2, 814.4, 815.6 and 818.6, 835, 840.2 and 840.4” is denied as moot.

[1]As an initial matter, the City asserts that the Court should not consider Plaintiff’s opposition because it is untimely. The opposition was filed and electronically served on January 3, 2022, 8 court days prior to the January 13, 2022 hearing date. Pursuant to Code of Civil Procedure section 1005, subdivision (b), opposition papers must be served and filed with the court¿at least 9 court days¿before the hearing. In addition, under Code of Civil Procedure section 1010.6, subdivision (a)(4)(B), “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.”¿Because the City has submitted a substantive reply brief that addresses the arguments made in Plaintiff’s opposition, the Court elects to exercise its discretion to consider the untimely opposition.¿(Cal. Rules of Court, Rule 3.1300, subd. (d).)

[2]The Court addresses the City’s motion to strike before the City’s demurrer because the City moves to strike certain causes of action.