Judge: William A. Crowfoot, Case: 21STCV16850, Date: 2022-12-08 Tentative Ruling

Case Number: 21STCV16850    Hearing Date: December 8, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

          On May 4, 2021, plaintiff Stephen Yagman (“Plaintiff”) filed this action against defendants Eric Michael Garcetti (“Garcetti”), Bob Blumenfield (“Blumenfield”), Michael Bonin (“Bonin”), Joe Buscaino (“Buscaino”), Nury Martinez (“Martinez”), Mitch O’Farrell (“O’Farrell”), David E. Ryu (“Ryu”), Kevin Lee James (“James”), Aura Garcia (“Garcia”), Mike Davis (“Davis”), Jessica M. Caloza (“Caloza”), M. Teresa Villegas (“Villegas”), and Adel H. Hagekhalil (“Hagekhalil”) (collectively, “Defendants”) arising from a January 29, 2020 fall on a sidewalk adjacent to Venice’s Grand Canal. 

On September 27, 2022, Plaintiff filed his operative Second Amended Complaint (“SAC”).  Plaintiff also amended the Complaint to add the City of Los Angeles (“City”) as a Doe defendant.

In his SAC, Plaintiff alleges that on February 7, 2020, he filed a tort claim for damages.  (SAC, ¶ 13.)  This claim was denied on March 17, 2020, and thereafter, on March 24, 2020, he filed an action in federal court against Defendants (the “Federal Action”).  (SAC, ¶ 13.)  The Federal Action was dismissed on April 30, 2021, and an appeal was taken from that dismissal to the Ninth Circuit, which is pending disposition.  (SAC, ¶ 13.) 

Plaintiff alleges that on January 29, 2020, he was walking on a “sidewalk, pathway, and/or paved right of way immediately adjacent to, and next to, abutting the Venice’s Grand Canal, in Venice Beach, California, when he tripped on a dangerously cracked sidewalk, pathway, and/or paved right-of-way and fell to the ground rolling into the Venice’s Grand Canal.”  (SAC, ¶ 16.)

Plaintiff asserts causes of action against Defendants and City for common law negligence, violation of various Government Code sections, including sections 815.6, 830, 835.2, 840.2, “statutory negligence” under Government Code section 835, and public nuisance.  Plaintiff sues Defendants in their individual and official capacities.  (SAC, ¶¶ 4, 9.) 

On October 27, 2022, Defendants and City filed this demurrer and motion to strike.  Defendants and City purport to demur to each cause of action in the SAC and move to strike allegations based on Government Code section 815.6.  

On November 23, 2022, Plaintiff filed opposition briefs.

On December 1, 2022, Defendants and City filed their reply briefs. 

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

A.           Meet and Confer

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).) 

          The Court finds the meet and confer obligation satisfied based on the declaration of defense counsel Charlynn Rawlins. (See Rawlins Decl., ¶ 2.)

B.           Judicial Notice

Defendants and City’s request for judicial notice is GRANTED. (Evid. Code § 452.)

C.           Demurrer

1.           Timeliness of Plaintiff’s Doe Amendment

City argues that it should be dismissed from this action because Plaintiff is time-barred from asserting his claims.  Government Code § 945.6 required Plaintiff to file his complaint within six months after notice of rejection of Plaintiff’s claim was delivered or deposited in the mail.  Timely filing of the complaint is part of the prerequisite condition mandated by the Tort Claims Act.  (Gov. Code § 810, et. seq.)  Here, Plaintiff’s claim was filed on February 7, 2020, and rejected on March 17, 2020.  Therefore, Defendant argues that Plaintiff was required to file this lawsuit by September 17, 2020, at the very latest. 

In his opposition, Plaintiff argues that he can name City as a Doe defendant pursuant to Code of Civil Procedure section 474 because he was ignorant of City’s liability.  However, this is implausible, given that Plaintiff filed a government claim against City arising from the incident and therefore already had an idea of City’s identity and possible liability.  (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177.)  Also, in Chase v. State of California (1977) 67 Cal.App.3d 808, 812-813, the Court of Appeals held that the plaintiff could not claim ignorance and name the state as a Doe defendant 20 months after filing his action because the Tort Claim Act required that an action “must be commenced within six months.”  

Citing to Martell v. Antelope Valley Hosp. Med. Ctr. (1998) 67 Cal.App.4th 978, 985, Plaintiff also argues that the statute of limitations should be equitably tolled because he filed the Federal Action against Defendants in their official capacity, who are City officials.  Plaintiff argues that action in federal court tolled the statute of limitations as to his claims in state court against City and cites to Pitts v. County of Kern (1998) 17 Cal.4th 340.  Plaintiff specifically cites to the California Supreme Court’s parenthetical citation to Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71, paraphrasing as follows: “While ‘state officials literally are persons,’ ‘a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. [Citation.] As such, it is no different from a suit against the State itself.”  (Id. at p. 350.) 

For context, in Pitts, the California Supreme Court concluded that for purposes of liability for damages under 42 U.S.C. § 1983 (“section 1983”), “a district attorney represents the state, not the county, when preparing to prosecute and when prosecuting crimes, and when establishing policy and training employees in these areas.”  (Id. at p. 346.)  By cherry-picking the California Supreme Court’s discussion of the differences between personal-capacity and official-capacity suits, Plaintiff ignores that this entire opinion (and every single case cited by the California Supreme Court in this two-paragraph discussion) is concerned with defining the term “person” within the meaning of section 1983.  And although Plaintiff has previously referred to this language in Pitts when opposing Defendants’ previous demurrer (see 7/29/2022 filing), Plaintiff still provides no analysis explaining how Pitts is analogous to the current case. 

Accordingly, City’s demurrer is SUSTAINED without leave to amend. 

2.           “ADA Allegations”

Defendants demur to Plaintiff’s allegations that the sidewalks do not comply with the standards for the Americans with Disabilities Act (“ADA”) even though they concede that Plaintiff does not allege a cause of action.  However, a demurrer is only proper when directed towards an entire cause of action.  Accordingly, Defendants’ “demurrer” to these allegations is overruled.  

3.           First Cause of Action for “Common Law Negligence”

Defendants demur to the First Cause of Action but do not address the fact that it is a common law negligence claim asserted against them in their personal capacities.  Accordingly, whether they are public employees is irrelevant.  Defendants’ demurrer to the First Cause of Action is OVERRULED.

4.           Second Cause of Action for “Dangerous Condition of Public Property, California Gov. Code §§ 815.6, 830, 835.2, 840.2, and Negligence Per Se”

Defendants argue that Plaintiff’s Second Cause of Action fails to state a claim because except as provided in sections 840, 840.2, 840.4, and 840.6, “a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.”  (Gov. Code, § 840.)  However, in his Second Cause of Action, Plaintiff essentially only alleges that Defendants are liable pursuant to Government Code section 815.6 for violating their mandatory duty to provide safe sidewalks and public areas, and for violating Civil Code section 3479 and City Ordinance 172897.  Even though Plaintiff alludes to one of the appropriate statutory provisions governing a dangerous condition of public property claim against a public employee in the heading of the cause of action by naming Gov. Code section 840.2, the substance of the allegations fail to state a cause of action under section 840.2. 

Separately, Defendants also argue that Plaintiff has not identified any enactment that imposes a mandatory duty under Government Code section 815.6. 

Government Code section 815.6 provides liability against public entities that violate a “mandatory duty” imposed by an enactment.  It states:

Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.

To determine whether an enactment contains a mandatory duty under Government Code section 815.6, the courts have developed a three-pronged test.  First, an enactment must impose a mandatory, not discretionary, duty; second, the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and third, a breach of the mandatory duty must be a proximate cause of the injury suffered.  (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638–639.)  Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.  (Creason v. Department of Health Services (1998) 18 Cal.4th 623, 631.)  

As to the first prong, the enactment must be obligatory rather than merely discretionary or permissive in its directions to the public entity.  (County of Los Angeles, supra, 102 Cal.App.4th at pp. 638–639.)  In other words, it must require, rather than merely authorize or permit, that a particular action be taken.  (Ibid.)  It is not enough that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.  (Ibid.)  The first prong is strictly construed, and the courts will only find a mandatory duty if the enactment affirmatively imposes the duty and provides implementing guidelines.  (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.)  In fact, the inclusion of the term “shall” does not necessarily create a mandatory duty, as there may be “other factors that indicate that apparent obligatory language was not intended to foreclose a governmental entity's or officer's exercise of discretion.  (Id. at pp. 898–899.)

The second prong requires that the mandatory duty be designed to protect against the particular kind of injury a plaintiff suffered.  (County of Los Angeles, supra, 102 Cal.App.4th at pp. 638–639.)  A plaintiff must show the injury is one of the consequences that the legislature sought to prevent through imposing the alleged mandatory duty.  (Ibid.)  It is not enough for the enactment to confer some benefit on the class to which plaintiff belongs if the benefit is incidental to the enactment's protective purpose.  (Ibid.)  

Plaintiff alleges Defendant violated Civil Code section 3479 and City Ordinance 172897 (1999) § 8 and Coastal Development Permit (CDP) Nos. 5-87-112; 5-86-641; and a-266-77.  Defendant contends that none of these impose a mandatory duty on them because Civil Code section 3479 simply defines what a nuisance is and Ordinance 172897 is an ordinance establishing a Specific Plan for the Venice Coastal Zone.  Tellingly, Plaintiff does not cite any language from these statutes, ordinances, or permits in his opposition briefs in support of his argument that they in fact impose mandatory duties upon Defendants that bear upon Plaintiff’s trip and fall. 

In light of the foregoing, Defendants’ demurrer to the Second Cause of Action is SUSTAINED. 

5.   Third Cause of Action for “Statutory Negligence II”

Defendants argue that Plaintiff’s Third Cause of Action pursuant to Government Code section 835 fails because it only pertains to liability against a public entity, not individuals.  As discussed above, the only statutes providing a basis for liability for a dangerous condition of public property against a public employee are Government Code sections 840, 840.2, 840.4, and 840.6.  Accordingly, Defendants’ demurrer to the Third Cause of Action is SUSTAINED. 

6.           No Public Nuisance Claim

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)  “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance of damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480; see Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.) “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Civ. Code, § 3493; see Birke, supra, 169 Cal.App.4th at 1548.)  

Defendant argues that Plaintiff cannot bring a claim for public nuisance because in Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383, the court of appeal held that a sidewalk in disrepair is not a public nuisance.  Specifically, the Court stated, “Even assuming that appellants’ assertion that a crack or hole in the sidewalk falls within the definition of a nuisance, which is doubtful, such a claim of liability is not available to them in this case.”  (Id. at p. 384.)  The Court also stated, “we deem it proper in this case where the action is based on a claim of a defective condition of public property to . . . find the plaintiffs have no cause of action under a nuisance theory.”  (Ibid.)  In opposition, Plaintiff only argues that the Court previously determined that the “only defect” in his prior complaint was the failure to identify the destination or obstruction. 

In light of the language in Longfellow, which Plaintiff does not bother addressing, the Court is inclined to agree with Defendants.  Plaintiff alleges that “un-repaired and broken condition of the sidewalk” is a public nuisance.  This is a claim for a dangerous condition of public property, not a nuisance claim.   

Accordingly, Defendants’ demurrer to the Fourth Cause of Action is SUSTAINED.  

7.   Whether Defendants Are Immune From Suit and Liability

Lastly, Defendants argue that they cannot be sued in their official capacities because they are entitled to immunity.  In particular, Defendants contend they are immune from liability for discretionary acts (Gov. Code §§ 820.2, 821.6), and any alleged failures to adopt or enforce an enactment (Gov. Code §§ 818.2 and 821).

Plaintiff argues that Defendants cannot litigate the issue of immunity as a matter of law on demurrer.  The Court agrees.  First, the immunity for discretionary acts of public employees provided by Government Code section 8920.2 applies only with respect to those basic policy decisions which have been committed to coordinate branches of government, and does not immunize government entities from liability for subsequent ministerial actions taken in the implementation of those basic policy decisions.  (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418.)  At this stage of the pleadings, it is too early to characterize the type of actions that Defendants allegedly took.  Also, it is unclear how Government Code sections 821 or 821.6 apply in this case.  No particular enactment, or judicial or administrative proceeding is apparent from the SAC.  Accordingly, Defendants’ bid to dismiss Plaintiff’s claims against them in their official capacity is unsuccessful. 

D.          Motion to Strike

Defendants move to strike all allegations of mandatory duty and invocation of Government Code § 815.6, including lines 1 to 27 of page 9 of the SAC. However, as the Court has sustained the demurrer to Plaintiff’s second cause of action, the motion to strike these allegations is MOOT.

IV.     CONCLUSION

City’s demurrer is SUSTAINED without leave to amend and the Court dismisses City from this action with prejudice.

Defendants’ demurrer to the First Cause of Action is OVERRULED.  Defendants’ demurrer to the Second, Third, and Fourth Causes of Action is SUSTAINED.  Leave to amend is granted only as to the Second Cause of Action.

Plaintiff is ordered to file his Third Amended Complaint within 10 days. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.