Judge: Walter P. Schwarm, Case: 30-2020-01126846, Date: 2022-11-01 Tentative Ruling
Defendant’s (City of Dana Point) Demurrer to Plaintiff’s First Amended Complaint (Demurrer), filed on 6-14-22 under ROA No. 236, 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 (General Negligence) and second (Premises Liability) causes of action contained in Plaintiff’s (Brenda Provini) First Amended Complaint (FAC), filed on 5-12-22 under ROA No. 229, pursuant to Code of Civil Procedure section 430.10, subdivisions (a) and (e). (Notice of Motion filed on 6-14-22 under ROA No. 236; 1:22-3:7.)
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.]” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
The Demurrer states, “Pursuant to section 815(a), government tort liability is strictly statutory. For conditions of public property, such as a city sidewalk, Government Code section 835 is the exclusive basis for liability. Here, the FAC is silent about which statute plaintiff is relying on to hold the City liable. The FAC also fails to include an analysis on the elements necessary to satisfy Government Code section 835. This alone is reason enough to sustain the instant demurrer.” (Demurrer; 5:10-15.)
Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757–758 (Cole), states, “ Plaintiff's cause of action against Town is defined by statute, specifically the portion of the Government Claims Act entitled Liability of Public Entities and Public Employees. (Gov.Code, §§ 814–895.8, added by Stats.1963, ch. 1681, pp. 3267–3284; see City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741–742, 68 Cal.Rptr.3d 295, 171 P.3d 20.) These statutes declare a general rule of immunity (Gov.Code, § 815) and then set out exceptions to that rule. Plaintiff invokes the exception for a dangerous condition of public property, as set out in Government Code section 835 (§ 835). As there laid out the cause of action consists of the following elements: (1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff's injuries; and (5) compensable damage sustained by the plaintiff.” (Footnote 3 omitted.)
Government Code section 835 states, “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 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.”
As to the General Negligence cause of action, the FAC pleads in part, “On May 18, 2019, Plaintiff was walking on the sidewalk near the Ritz Carlton, located in Dana Point, CA. While Plaintiff was walking, she tripped and fell on a manhole cover, which Defendant failed to maintain and caused her injuries. Plaintiff suffered multiple injuries.” Complaint, p. 4.) As to the Premises Liability cause of action, the FAC pleads in part, “On May 18, 2019, Plaintiff was walking on the sidewalk near the Ritz Carlton, located in Dana Point, CA. While Plaintiff was walking, she tripped and fell on a manhole cover, which Defendant failed to maintain and caused her injuries. Plaintiff suffered multiple injuries” and “Count Three—Dangerous Condition of Public Property The defendants who owned public property on which a dangerous condition existed were (names): [¶] AT&T Services, Inc., City of Dana Point, The Ritz-Carlton.” (Complaint, p. 5; Emphasis in Complaint.)
Plaintiff has not sufficiently alleged the elements of statutory liability against Defendant, a public entity, under Government Code section 835, subdivisions (a)/(b), as to the first or second causes of action. Thus, the court SUSTAINS the Demurrer as to pursuant to Code of Civil Procedure section 430.10, subdivision (e).
The Demurrer also asserts, “The dismissal has not been vacated or set aside by the Court. Absent the dismissal being set aside or vacated, the Court has not subject matter jurisdiction over the City.” (Demurrer; 5:18-20.) On 5-3-22, the court granted Plaintiff’s motion for leave to amend to add Defendant as a party. (5-3-22 Minute Order.) Code of Civil Procedure section 410.50 states, “(a) Except as otherwise provided by statute, the court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section 413.10). A general appearance by a party is equivalent to personal service of summons on such party. [¶] (b) Jurisdiction of the court over the parties and the subject matter of an action continues throughout subsequent proceedings in the action.”
Based on the court’s 5-3-22 Minute Order, the dismissal is no longer in effect because the FAC added Defendant as a party to this action. In re D.R. (2019) 39 Cal.App.5th 583, 593, states, “Second, a general appearance by a party is equivalent to personal service of summons on such party and jurisdiction of the court can be acquired by way of a general appearance. [Citations.] The determination of special appearance versus general appearance is based on the ‘character of the relief sought,’ not by statements of intention of the party. [Citation.] A general appearance occurs when the party takes part in the action and ‘ “in some manner recognizes the authority of the court to proceed.” ’ [Citation.]” Code of Civil Procedure section 1014 provides, “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant. After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant.” By filing the Demurrer, Defendant has made a general appearance in this case, and the court has jurisdiction over Defendant.
Defendant further contends that issue preclusion applies to prevent the court from having jurisdiction over Defendant. (Demurrer; 11:12-13:15.) DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825 (DKN), states, “In summary, issue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party. [Citations.]” The court finds that issue preclusion does not apply because Defendant’s liability has not been adjudicated in a prior proceeding.
Therefore, the court OVERRULES the Demurrer to the extent is based on Code of Civil Procedure section 430.10, subdivision (a), based on the dismissal and issue preclusion.
In summary, the court SUSTAINS Defendant’s (City of Dana Point) Demurrer to Plaintiff’s First Amended Complaint, filed on 6-14-22 under ROA No. 236, with 14-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.