Judge: William A. Crowfoot, Case: 22AHCV01341, Date: 2023-04-07 Tentative Ruling

Case Number: 22AHCV01341    Hearing Date: April 7, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.       INTRODUCTION

          The People of the State of California, acting by and through the Department of Transportation (“Defendant”) (erroneously sued as “State of California”) demur to the third cause of action for general negligence in the complaint filed by Plaintiff Irene Perez (“Plaintiff”) on December 19, 2022.  Plaintiff asserts causes of action for dangerous condition of public property and general negligence against Defendant arising from two slip-and-fall incidents on January 3, 2022, and January 7, 2022. 

          The demurrer is unopposed. 

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.)  In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) 

III.     DISCUSSION

Before filing a demurrer, the demurring 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).)  The party filing the demurrer must include a supporting memorandum of points and authorities.  (Cal. Rules of Court, rule 3.1113(a).)  Defendant filed the requisite declaration on February 6, 2023 in which defense counsel declared that they were unable to meet and confer with Plaintiff’s counsel. 

          Defendant argues, among other grounds, that Plaintiff’s third cause of action for general negligence fails because it fails to state facts sufficient to constitute a cause of action.  The Court agrees that Plaintiff’s third cause of action fails to state sufficient facts and sustains Defendant’s demurrer on this basis. 

Public entities cannot be liable for common law theories of general negligence.  (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [“section 815 abolishes common law tort liability for public entities”].)  Therefore, liability against a public entity must be authorized by statute.  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815, subd. (a) [“A public entity is not liable for an injury . . . except as otherwise provided by statute”].)  “Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty.  [Citation].  However, 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.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)  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” and a demurrer may be sustained where the plaintiff fails to allege a statutory basis for liability against a public entity.  (Ibid.; see Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 863-864 [affirming trial court’s sustaining a demurrer without leave to amend as to four tort causes of action where plaintiff failed to allege statutory basis—i.e., mandatory duty under Government Code section 815.6—for liability against public entity].)  

Plaintiff’s third cause of action fails to identify any statutory basis for Defendant’s liability.  Accordingly, Plaintiff fails to state sufficient facts to constitute a cause of action. 

IV.     CONCLUSION

Based on the foregoing, Defendant’s unopposed demurrer to the third cause of action is SUSTAINED without leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.

Dated this 7th day of April 2023