Judge: William A. Crowfoot, Case: 22STCV13845, Date: 2022-08-04 Tentative Ruling

Case Number: 22STCV13845    Hearing Date: August 4, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On April 26, 2022, plaintiff Moises Alvarado (“Plaintiff”) filed this action against defendants County of Los Angeles (“Defendant”) (also erroneously sued separately as “Los Angeles County Sheriff’s Department”) and the City of Los Angeles (“City”) (collectively, “Defendants”).  Plaintiff’s action arises from the detonation of a “bomb containing massive amounts of fireworks” on June 30, 2021, in the neighborhood of 27th and San Pedro Street, Los Angeles.  (Compl., Prem.L-1.)  Plaintiff asserts causes of action for negligence, willful failure to warn, and dangerous condition of public property.  (Compl., Prem.L-1-Prem.L.4.)  Plaintiff also alleges that each defendant was an agent of the others and acted within the scope of their agency.  (Compl., Prem.L-5a.) 

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).) 

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.     REQUEST FOR JUDICIAL NOTICE

Defendant requests the Court judicially notice several facts and documents it contends are not subject to dispute.  The Court GRANTS the request in part and judicially notices the existence of Exhibits A through D, but not for the truth of their contents.  The Court DENIES the request for judicial notice as to Fact Nos. 1 through 3 as they are not “facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.” 

IV.     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).) 

Defendant filed a declaration by its attorney, Anita Susan Brenner.  Counsel states that she left a voice mail message with Plaintiff’s counsel but did not hear back from him. 

A.   Law Enforcement Immunity

Defendant asserts that under Government Code section 818.2, it is not liable for an injury caused by failing to enforce any law.  Defendant offers no argument as to how Plaintiff’s Complaint charges Defendant with liability for the failure to enforce a law, as Plaintiff is alleging that Defendants negligently undertook a task.  Accordingly, this ground for a demurrer is OVERRULED.  

B.   Whether Defendant Controlled the Property

Next, Defendant argues that it cannot be held liable because it did not control the property where the bomb was detonated.  Defendant states that the location of the neighborhood is within the city of Los Angeles and that the County does not own that land.  Defendant also contends that City’s police department was the entity which detonated the alleged bomb and Defendant was not involved in any way.  However, these arguments rely on matters outside the pleading and cannot be considered at this stage of the pleadings.  Accordingly, this ground for demurrer is OVERRULED. 

C.   Failure to State Statutory Basis for Liability

Last, Defendant argues that Plaintiff’s causes of action fail because they do not state sufficient facts or identify a statutory basis of liability. 

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.  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.’”  (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)  

Defendant’s demurrer to the first cause of action for Premises Liability is OVERRULED because Plaintiff states a sufficient claim against Defendant through Count Three for Dangerous Condition of Public Property.  Similarly, Plaintiff’s cause of action for general negligence identifies Government Code section 835 as the basis for liability.  Accordingly, the second cause of action for General Negligence is also OVERRULED. 

IV.     CONCLUSION

Defendant’s demurrer is OVERRULED.  Defendant is to file an answer within 20 days of the date of this order.

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.