Judge: William A. Crowfoot, Case: 23AHCV00340, Date: 2023-08-16 Tentative Ruling

Case Number: 23AHCV00340    Hearing Date: August 16, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.       INTRODUCTION

           On February 15, 2023, plaintiff Judy Regan (“Plaintiff”) filed this personal injury action against defendant County of Los Angeles (“Defendant”).  On April 18, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”).  On June 22, 2023, Defendant filed this demurrer to the FAC. 

          Plaintiff filed an opposition brief on August 2, 2023. 

          Defendant filed a reply brief on August 9, 2023.

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.     DISCUSSION

          Plaintiff alleges that a pedestrian area and drainage ditch on the southeast corner of Porter Avenue and East Altadena Drive in the City of Altadena was and is owned by Defendant.  (FAC, ¶¶ 4-5.)  On July 24, 2022, while walking on the roadway, she allegedly fell into the unbarricaded drainage ditch and sustained serious injuries.  (FAC, ¶¶ 8, 16.)             

A.   First Cause of Action

Defendant demurs to the first cause of action on the grounds that: (1) Plaintiff has not alleged with particularity the dangerous condition of the property, (2) Plaintiff has not alleged the necessary elements to support a claim for dangerous condition of public property, and (3) Defendant is immune from liability under Government Code section 831.8.  Defendant demurs to the second cause of action for premises liability on the grounds that it cannot be held liable under common law negligence. 

          Defendant argues that Plaintiff fails to state a claim for dangerous condition of public property because she does not describe how she was using the property with due care or how the drainage ditch was dangerous.  (Demurrer, pp. 7-8.)  However, Plaintiff alleges that she was using the property as a pedestrian when she fell into the “unbarricaded drainage ditch” and posed a substantial risk of injury.  (FAC, ¶ 8.)  This is sufficient at the pleading stage to allege due care and a dangerous condition of public property.

Defendant argues that the FAC is a “sham pleading” because Plaintiff’s original complaint included an allegation about “a flimsy reflective pole that gave way when Plaintiff leaned on it, causing Plaintiff to fall into a drainage ditch and the lack of any guard or barricade to the ditch in the area.”  (Compl., ¶ 7.)  Defendant argues that Plaintiff does not – and cannot – allege “with particularity” that she was using the property “with due care in a manner in which it is reasonably foreseeable that it will be used” because it is not reasonably foreseeable that an individual will lean on a pole.  (Demurrer, p. 7.) 

In opposition, Plaintiff argues that the reflective pole is only one aspect of the entire intersection.  Plaintiff alleges that the southwest corner had additional safety measures, barricades/fencing, and design elements that were not present on the southeast corner where she fell, even though both corners had the same pedestrian area and drainage ditch.  (FAC, ¶ 9.)  Plaintiff also incorporated her pre-litigation claim which states that she “stopped to rest” at the southeast corner when she “leaned against a reflective pole that gave way and she fell approximately 4 feet into an unguarded drainage ditch.”  (FAC, Ex. A.)  Given these allegations, the Court finds that Plaintiff has sufficiently alleged a claim for dangerous condition of public property.  Whether it was reasonable for Plaintiff to lean on a pole cannot be resolved by solely using the allegations of the FAC.  

          Last, Defendant argues that Government Code section 831.8(a) immunizes it from liability.  This section provides, in relevant part, that:

“[N]either a public entity nor a public employee is liable . . . for an injury caused by the condition of a reservoir if at the time of the injury, the person injured was using the property for any purpose other than that for which the public entity intended or permitted the property to be used.”  There are no allegations stating that the drainage ditch was part of a “reservoir” and therefore, it would be inappropriate to conclude that the immunity applies here.  Insofar as Defendant relies on subdivision (b) of section 831.8, which directly refers to conduits and drains, there are no allegations that Defendant is the state or an irrigation district.

          Defendant’s demurrer to the first cause of action is OVERRULED.

B.   Second Cause of Action

Defendant demurs to Plaintiff’s second cause of action for premises liability on the grounds that a public entity cannot be liable for common law theories of liability.  Defendant lacks standing to demur to this cause of action because the second cause of action is not asserted towards Defendant, but “Does 11 to 20”.

Defendant’s demurrer to the second cause of action is OVERRULED.

IV.     CONCLUSION

Defendant’s demurrer is OVERRULED in its entirety.  Defendant is to file an answer in 20 days.

Moving party to give notice.

Dated this 16th day of August 2023

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.