Judge: Timothy B. Taylor, Case: 37-2023-00005670-CU-PA-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  PI/PD/WD - Auto Demurrer / Motion to Strike 37-2023-00005670-CU-PA-CTL SWAN VS CITY OF SAN DIEGO CAUSAL DOCUMENT/DATE FILED: Demurrer, 05/17/2023

Tentative Ruling on Demurrer to Complaint Swan v. County of San Diego, Case No. 2023-05670 Oct. 13, 2023, 1:30 p.m., Dept 72 1. Overview and Procedural Posture.

This is a personal injury case. Plaintiff was riding a scooter on July 28, 2022 when he alleges he crashed into a sheriff's vehicle unsafely exiting the underground parking garage at the Madge Bradley Building on Fourth and Ash in downtown San Diego.* The Judicial Council form complaint was filed in February, 2023. The complaint originally named the City of San Diego, but the City was later dismissed.

ROA 8-9. The County has cross-complained against plaintiff, and he has answered the cross-complaint.

ROA 16, 32.

The case is set for trial in July of 2024. ROA 26-30.

The County now generally and specially demurs to the complaint. ROA 11-15. Plaintiff filed a first amended complaint and an opposition to the demurrer. ROA 34-35. The court has reviewed the papers, and no further submissions are authorized in connection with this demurrer.

2. Applicable Law.

A. A general demurrer may only be sustained if the complaint fails to state a cause of action under any possible legal theory. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810. Properly pleaded facts must be accepted as true, but not contentions or conclusions of law or fact. Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. The court's function is limited to testing the legal sufficiency of the complaint, which must be construed with a view to substantial justice between the parties. Fremont Indemnity Co. v. Fremont General Crop. (2007) 148 Cal.App.4th 97, 113; Code Civ.

Proc. § 452.

B. A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. Gov. Code § 815(a). One exception to this rule is Government Code section 815.2(a), which provides that '[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[.]' Calendar No.: Event ID:  TENTATIVE RULINGS

2974394  52 CASE NUMBER: CASE TITLE:  SWAN VS CITY OF SAN DIEGO  37-2023-00005670-CU-PA-CTL 3. Discussion and Ruling.

The demurrer to the complaint is overruled as moot in light of the timely filing and service of the FAC.

Code Civ. Proc. § 472(a). The County is free to attack the FAC via demurrer if it believes the defects it previously identified have not been cured. Or better yet, it may answer the FAC and save further challenges to a later stage in the proceedings.

_____________________ *The building was named after the first female judge in San Diego and was for years used as a courthouse. It is now a Sheriff's facility.

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