Judge: William A. Crowfoot, Case: 22STCV16830, Date: 2022-12-16 Tentative Ruling

Case Number: 22STCV16830    Hearing Date: December 16, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On May 29, 2022, plaintiffs Richard Earle Brinson II (“Brinson”) and Michelle Ann Court (“Court”) (collectively, “Plaintiffs”) filed this action against defendant City of Los Angeles (“Defendant”).  Brinson alleges that on July 12, 2021, he tripped on a portion of public sidewalk that was adjacent to 8032 Darby Avenue in Reseda, California. 

Plaintiffs assert four causes of action against Defendant, including dangerous condition of public property (Government Code §§ 815.2, 815.4, 820, 835, and 945) and violation of mandatory statutory duty under Streets and Highways Code section 5611 and 5615, Los Angeles Municipal Code Chapter VI, section 62.104, and Government Code section 835.   

On November 9, 2022, Defendant filed this demurrer to the second, third, and fourth causes of action on the grounds that it did not have a mandatory duty under the Streets and Highway Code sections 5611 and 5615 or Municipal Code section 62.104.  Defendant also demurs to the fifth, sixth, and seventh causes of action for general negligence, premises liability, and general negligence-loss of consortium. 

On December 5, 2022, Plaintiffs filed an opposition brief.

No reply brief is on file. 

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).)  

          Deputy City Attorney Carol Attarian states that she had a telephone conversation with Mike Marzban on October 3, 2022 and that to date the parties have been unable to reach any agreement about amending the complaint because Defendant’s position is that the only proper cause of action is under Government Code section 835.  (Attarian Decl., ¶ 2.)  The meet and confer obligation is satisfied.

B.   Statutory Basis for Governmental Liability

“The California Tort Claims Act provides that ‘a public entity is not liable for an injury,’ ‘except as otherwise provided by statute.’  (Gov. Code, § 815, subd. (a).)  As that language indicates, the intent of the Tort Claims Act is to confine potential governmental liability, not expand it.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179.)  A demurrer may be sustained where the plaintiff fails to allege a statutory basis for liability against a public entity.  (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].)  

Plaintiffs’ seventh cause of action for general negligence-loss of consortium fails to identify a statutory basis for imposing liability upon Defendant.  The Court also notes that Plaintiffs do not oppose Defendant’s demurrer to the seventh cause of action.  Accordingly, the demurrer to the seventh cause of action is SUSTAINED without leave to amend.

C.   Government Code § 815.6 and Mandatory Duties

          Defendant argues that statutory liability for a dangerous condition of property is limited to Government Code section 835.  “[P]ublic¿entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but instead by the specific provisions set forth in sections 830-835.4.”  (Van¿Kempen¿v. Hayward Area Park etc Dist.¿(1972) 23 Cal.App.3d 822, 825.)  Defendant contends that Plaintiffs reliance on Government section 815.6 is misplaced because none of the statutes cited in the Complaint create a “mandatory duty.” 

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 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.)  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 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.)  

1.   No Mandatory Duties under Streets and Highway Code §§ 5611 and 5616

Defendants assert that Streets and Highways Code section 5611 and 5615 do not provide mandatory duties.  The Court agrees.

Streets and Highways Code section 5611 provides:

When any portion of the sidewalk is out of repair or pending reconstruction and in condition to endanger persons or property or in condition to interfere with the public convenience in the use of such sidewalk, the superintendent of streets shall notify the owner or person in possession of the property fronting on that portion of such sidewalk so out of repair, to repair the sidewalk.  

Streets and Highways Code section 5615 provides:

If the repair is not commenced and prosecuted to completion with due diligence, as required by the notice, the superintendent of streets shall forthwith repair the sidewalk. Upon the written request of the owner of the property facing the sidewalk so out of repair, as ascertained from the last equalized assessment roll of the city, or as shown in the records of the office of the clerk, the superintendent may repair any other portion of the sidewalk fronting on the property that is designated by the owner. The superintendent shall have power to prescribe the form of the written request. The cost of repair work done by request pursuant to this section shall be a part of the cost of repairs for which, pursuant to this chapter, subsequent notices are given, hearings held and assessment and collection procedures are conducted.  

Both statutes provide the “superintendent of the street” with discretion to satisfy the statutes.  As to the first statute, Streets and Higways Code section 5611 does not provide when a repair is necessary in the first place.  (Guzman, supra, 46 Cal.4th 887, 898.)  Thus, this statute appears to be purely discretionary in how the functions are to be performed.  

As to Streets and Highways Code section 5615, the superintendent also has discretion in when and how to execute his duties under the statute.  The statute does not delineate what constitutes “due diligence.”  Rather, the superintendent has the discretion to determine what constitutes due diligence.  Thus, the superintendent has the discretion when to even begin his duties under the statute in the first place.  The superintendent also has discretion in how he would go about repairing the sidewalk, when the various hearings and notices would take place, among other discretionary decision making.  Accordingly, the above statutes are merely discretionary, not obligatory, and do not constitute mandatory duties.

Additionally, it appears from their plain language that sections 5611 and 5615 were intended to create an economic means of reimbursing the City of Los Angeles for the cost of repairs from an adjacent property, and not to protect pedestrians who trip and fall on the sidewalk, like Brinson.  In Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, the court addressed section 31 of the Improvement Act of 1911 as amended in 1935, from which the Streets and Highway Code, section 5600 et. seq. is derived. The court explained the statute: “[P]rovides a statutory method by which the city may collect the cost of repairs from the property owner. The statute creates a duty on the party of the property owner to keep the sidewalks in repair – but that duty is owed to the city, not to the traveler on the sidewalk. The extent of the liability created is to pay for the repairs, not to pay for damages to an individual, nor to reimburse the city if it is compelled to pay such damages.” (Schaefer, supra, 63 Cal.App.2d at 327; see also Dennis W. Williams v. Foster (1989) 216 Cal. App. 3d 510, 517.)

Plaintiffs argue that the Schaefer court and other Courts of Appeal have stated and held that a fronting property owner owes an injured pedestrian a duty of care under section 5600 et. seq, where the property owner has done something to create the defect in the sidewalk that the property owner had failed to repair. (See Alpert v. Villa Romano Homeowner’s Association (2000) 81 Cal.App.4th 1320, 1331-1334.)  However, Plaintiffs’ argument is unpersuasive because the case law they cite to fails to distinguish a public entity as a fronting property owner from private sector landowner.  More importantly, the argument does not directly address whether it was the Legislature’s intent to prevent consequences such as Brinson’s injuries.

Accordingly, Defendant’s demurrer to the second cause of action is SUSTAINED.

2.   No Mandatory Duty Created by LAMC § 62.104

Defendant demurs to the third cause of action which attempts to bring a mandatory duty under Los Angeles Municipal Code, Chapter VI, section 62.104.  This, too, does not impose a mandatory duty under the case law described above.  The plain language of the municipal code provides for many discretionary acts.  For example, subsection (c) states that repairs would be necessary “if the Board [of Public Works] determines that a Sidewalk… is in a condition that endangers a person or property…”  (Los Angeles Municipal Code § 62.104(c).)  Since the Board of Public Work must make certain determinations, in their own discretion, the municipal code cannot be read as a mandatory duty under Gov. Code section 815.6.

Plaintiff cites an older version of the Municipal Code prior to 2017and argues that under that applicable code there is a mandatory duty.  Plaintiffs cite a portion of this code without providing a copy, stating that it provides the following:

“When a sidewalk, driveway, or curb constructed on any street shall be in disrepair or in need of reconstruction, or in a condition to endanger persons or property passing thereon, or in a condition to interfere with the public convenience in the use thereof, the Board may require that the owners or occupants of lots or portions of lots fronting on said sidewalk... to repair or reconstruct the sidewalk... EXCEPTION: Preventive measures and repairs or reconstruction to curbs, driveways, or sidewalk required as a result of tree root growth shall be repaired by the Board at no cost to the adjoining property owner.”

Brinson was not injured until July 12, 2021 after the current version of section 62.104 came into effect, but Plaintiffs argue that the current version of section 62.104 is in conflict with state statutes.  Even though the Court is skeptical that the older version of 62.104 is applicable, the Court does not need to address the issue of whether the newer version of section 62.104 is in conflict with state statutes since the Court finds that even the older version of section 62.104 does not impose a mandatory duty on Defendant.

 The use of the word “shall” does not transform a statute into a mandatory duty.  (Guzman, supra, 46 Cal.4th at 898.)  The quoted language also does not detail instructions that are clear, discrete, and require no evaluation of facts.  (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 260.)  Instead, the older code also requires use of discretion, despite its requirement that repairs as a result of tree root growth “shall” be repaired by the Board at no cost to the adjoining property owner.  Like sections 5611 and 5615 of the Streets and Highway Code discussed above, there is a wide latitude in discretion as to how and when the repairs will be done.  Thus, even if the older code applied, Defendant’s demurrer would still be sustained.  

3.    No Mandatory Duty Under Government Code § 835

Likewise, Gov. Code sections 835 does not invoke a mandatory duty to support the fourth cause of action.  There is no indication that the general statute for dangerous conditions of public property affirmatively imposes any particular duty or provides implementing guidelines for a particular duty.

D.  Fifth and Sixth Causes of Action

The Fifth and Sixth Causes of Action are not asserted against Defendant, but against Defendant Does 81 to 100.  Accordingly, Defendant’s demurrer is moot.   

IV.     CONCLUSION

Defendant’s demurrer to the Second, Third, Fourth, and Seventh Causes of Action is sustained.  As the Court also does not find any reasonable probability of successful amendment, no leave to amend is granted. 

Defendant’s demurrer to the Fifth and Sixth Causes of Action is moot.

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.