Judge: Walter P. Schwarm, Case: 30-2019-1103903, Date: 2022-08-02 Tentative Ruling
Defendant’s (City of Anaheim) Demurrer to the First Amended Complaint (Demurrer), filed 7-15-22 under ROA No. 85 is SUSTAINED.
“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint.[Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “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.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “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. [Citation.]”
The Demurrer challenges the first cause of action contained in Plaintiff’s (Ruby Hunter) First Amended Complaint (FAC), filed 2-2-22 under ROA No. 51, pursuant to Code of Civil Procedure section 430.10, subdivision (e).
Specifically, the Demurrer challenges the cause of action pled at pages 8-9 of the FAC. The court notes that while the FAC labels this cause of action the “first cause of action,” it appears to be in error as Plaintiff also pleads a first cause of action for “Property Damages” against other defendants. For clarity, the court will refer to the cause of action for negligence as the “first cause of action.”
First Cause of Action for Negligence:
“The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate cause between the breach and (4) the plaintiff’s injury. [Citation.]” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.)
Government Code section 815 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.”
Government Code section 821.6 states, “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.”
Government Code section 818.2 states, “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.”
The Demurrer states: “Plaintiff’s sole cause of action for negligence against Anaheim fails because the Government Claims Act specifies that a public entity is not liable for tortious injury unless liability is imposed by statute. Moreover, even if Plaintiff could somehow overcome this defect, the subject claim would be barred by one or more statutory immunities.” (Demurrer; 5:16-19.)
Here, the FAC alleges” (1) Defendant is a “. . . city government law enforcement agency that regulates and enforces violations in the City of Anaheim towing practices . . . under California Vehicle Code §§ 22658(b).” (FAC, ¶ 8.); (2) Plaintiff’s vehicle, a Jaguar XJS, was towed from a parking lot located at 88 E. Orangethorpe Avenue, Anaheim, CA 92801 on or about October 12, 2015. (FAC ¶¶ 11-14.); (3) Defendant “. . . “had a duty to sufficiently investigate, enforce and regulate laws applicable to towing, towing order and storage fees and outlined in CALIFORNIA DMV CODE 22658(B).” (FAC ¶ 30.); and (4) Defendant “. . . failed to maintain such duty and fell below the standard duty of care and performance. . . .” (FAC ¶ 31.) (Uppercase and underscore in FAC.)
Plaintiff’s Opposition Demurrer, filed 7-19-22 under ROA No. 89, does not respond to Defendant’s citations to Government Code sections 815, 821.6 or 818.2. Instead, Plaintiff only asserts that the FAC overcomes the Government Claims Act because it alleges that Defendant “. . . violated at least five key parts of the CA-DMV Code §§ 22658 . . . .” (Opposition, 2:9-13.)
The court finds that Government Code section 818.2 applies. The FAC alleges that Defendant is liable for failing to enforce Vehicle Code section 22658. Government Code section 818.2, however, states that a public entity is not liable for injury caused by failure to enforce any law. The Opposition fails to demonstrate why Government Code section 818.2 does not apply.
Therefore, the court SUSTAINS Defendant’s (City of Anaheim) Demurrer to the First Amended Complaint, filed 7-15-22 under ROA No. 85, with 15 days leave to amend from the date of service of the notice of the court’s decision. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)
Defendant is to give notice.