2014-00157700-CL-PA

21st Century Insurance Co vs. City of Sacramento

Nature of Proceeding:     Hearing on Demurrer to Complaint

Filed By:   Myers Dierking, Sari Filed By:   Myers Dierking, Sari

Defendant City of Sacramento’s (“City”) demurrer to complaint is SUSTAINED with
leave to amend, as follows.

This is a subrogation action which follows plaintiff’s coverage of an insured’s damage
to a vehicle as a result of branches falling from a tree allegedly maintained,
supervised, repaired and/or designed by City.

City now demurs to the complaint on the ground that it fails to state facts sufficient to
constitute a valid cause of action against a public entity since City is immune from
common law negligence claims and since the complaint fails to sufficiently allege facts
supporting liability pursuant to any statute.

The Court agrees and sustains the demurrer.  The City, a public entity, is immune from
liability on a common law theory including but not limited to negligence since
Government Code §815 states there is no liability unless a statute so provides.  Thus,
any tort claim against the City here must necessarily be based on a statute and a
plaintiff asserting tort liability against a public entity must explicitly identify the statute
on which liability is allegedly based. (Searcy v. Hemet Unified School District (1986)
177 Cal.App.3d 792, 802.)  Additionally, California law requires that all statutory claims
be alleged with factual particularity, meaning that every fact essential to the existence
of statutory liability must be specifically pled. (See, e.g., Lopez v. Southern Calif. Rapid
Transit District (1985) 40 Cal.3d 780, 795.)  To the extent plaintiff desires assert a
claim based on a theory of dangerous condition of public property pursuant to
Government Code §835, it must not only identify the statute but also plead facts which
show the tree’s condition was “dangerous” within the meaning of §830 and the City
had actual or constructive notice of same.

Since this is the first challenge to the complaint, leave to amend is granted.  Plaintiff
may file and serve an amended complaint no later than 7/14/2014.  Although not
required by court rule or statute, plaintiff is directed to present a copy of this
order when the amended complaint is presented for filing.

City to respond within 10 days if the amended complaint is personally served, 15 days
if served by mail.  If the response is either a demurrer or motion to strike, a copy of
the new amended complaint must be included with the moving papers .

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)