Case Number: BC693603 Hearing Date: August 22, 2018 Dept: 3

COURTNEY REIMER,

Plaintiff(s),

vs.

LAS VIRGENES SCHOOL DISTRICT et al.,

Defendant(s).

Case No.: BC693603

[TENTATIVE] ORDER OVERRULING THE DEMURRER TO THE FIRST CAUSE OF ACTION AND SUSTAINING THE DEMURRER TO THE THIRD CAUSE OF ACTION

Dept. 3

1:30 p.m.

August 22, 2018

The Demurrer is OVERRULED as to the First Cause of Action and SUSTAINED as to the Third Cause of Action. No leave to amend is granted. Defendant Las Virgenes School District is ordered to file an answer within ten days of this order.

I. Background

On February 9, 2018, plaintiff Courtney Reimer (“Plaintiff”) filed this action against Las Virgenes Unified School District (“District”), City of Calabasas (“City”) and Does 1 through 50 alleging causes of action for (1) Dangerous Condition of Public Property against District, (2) Dangerous Condition of Public Property against City and (3) Negligence against all defendants.

The complaint in relevant part alleges the following: 1) On January 19, 2017, Plaintiff was struck by a car while crossing a crosswalk to return to school from her lunch break. (Complaint ¶ 6); 2) Plaintiff’s school has an open campus during its lunch break and therefore when school is in session, for approximately thirty minutes, there is an excessively high volume of a mix of vehicular and pedestrian traffic along the street where Plaintiff was struck. (Id. ¶ 9); 3) The defendants negligently designed, controlled, monitored, supervised and guarded the crosswalk where Plaintiff was struck. (Id. ¶ 11); 4) The crosswalk did not have sufficient safeguards such as warnings or traffic signals that would to prevent pedestrians from being struck by vehicles traveling the road. (Id. ¶ 12); and 5) The failure to properly own, control and maintain the crosswalk created a dangerous condition of public property. (Id. ¶ ¶ 12-13.)

On June 15, 2018, City demurred to the third cause of action on the ground that a public entity like City cannot be liable for common law negligence because it is not based on a statute. The Court sustained the demurrer without leave to amend on the ground that the complaint failed to allege a statutory basis for the third cause of action and since the allegations in the complaint are based on a dangerous condition of public property (Government Code section 835), which was already alleged in the second cause of action.

On July 6, 2018, District filed a demurrer to the first and third causes of action. On July 31, 2018, Plaintiff field an opposition and on August 13, 2018, District filed a reply.

II. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at 747.)

III. Discussion

a. Meet and Confer

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41 and 435.5.)

The Court notes that the District has failed to file a declaration describing the parties meet and confer efforts as is required. Thus, District has failed to fulfill the meet and confer requirement prior to filing this demurrer.

However, CCP §§ 430.41(a)(4) and 435.5(a)(4) provide that any determination by the Court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer or grant or deny a motion to strike. Here, in light of the moving papers and Plaintiff being able to file timely opposition, the Court exercises its discretion to dispense with the meet and confer requirement for this demurrer. The Court does caution counsel for District however that counsel should make sure to sufficiently comply with this requirement in the future.

b. First Cause of Action: Claim Variance

District demurs to the first causes of action for dangerous condition of public property on the ground that the Government Claim that was submitted to District by Plaintiff does not reflect the allegations in the complaint. District argues that there are no allegations in the Government Claim that District owned or controlled the premises where Plaintiff was injured. Thus, District argues that Plaintiff cannot assert a theory for dangerous condition of public property against District because such a theory was not alleged in the Government Claim. Plaintiff opposes on the ground that the timely filed Government Claim sufficiently detailed the basis for Plaintiff’s allegations against District.

District is a public entity. (Government Code § 811.2.) Government Code section 945.41 provides that no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with section 910 until a written claim therefore has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board. (Stockett v. Association of California Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 445; Gov. Code § 945.41.)

Section 910, in turn, requires that the claim state the date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted and provide a general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. (Stockett, (2004) 34 Cal.4th at 445; Gov. Code § 910.) The purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. (Stockett, (2004) 34 Cal.4th at 446.)

Consequently, a claim need not contain the detail and specificity required of a pleading, but need only fairly describe what the entity is alleged to have done. (Id.) As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions, the claims statute should not be applied to snare the unwary where its purpose has been satisfied. (Id.) A complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim. (Id. at 447.)

Where a party attempts to comply with the claim statutes but the compliance is defective, the test of substantial compliance controls. “Under this test, the court must ask whether sufficient information is disclosed on the face of the filed claim ‘to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit.’ [Citation.] [¶] The doctrine of substantial compliance, however, cannot cure total omission of an essential element from the claim or remedy a plaintiff’s failure to comply meaningfully with the statute. [Citations.]” (State of California ex rel. Dept. of Transportation v. Superior Court (1984) 159 Cal.App.3d 331, 335.)

Here, the basis of District’s argument seems to be the single sentence in the Government Claim which provides that “The City owned, controlled or maintained the real property involved herein and is at fault for creating a dangerous condition of public property.” (Complaint, Exhibit A, section “WHAT particular action or inaction by District or its employee(s) caused the alleged damage or injury.”) Based on this sentence, District argues that the Government Claim failed to place it on notice of how it was liable to Plaintiff.

The Court notes that District seems to completely ignore and disregard the following sentence of the Government Claim which provides “See attached ‘Ex A’ and ‘Ex B’ for more details.” (Id.) The attached Ex A is titled “ATTACHMENT A CLAIM AGAINST LAS VIRGENES UNIFIED SCHOOL DISTRICT/CITY OF CALABASAS.” The attachment in relevant part provides that “this public entity owned, controlled or maintained the real property involved herein and is at fault for creating a dangerous condition of public property…” (Id. Exhibit A, attachment A ¶ 5.) A plain reading of these allegations (in light of the fact that the claim is asserted against both District and City) is that both District and City are alleged to have owned and controlled the premises where Plaintiff was injured and that both District and City are at fault for creating the dangerous condition of public property. These same allegations regarding a dangerous condition of public property are alleged in the complaint. (Complaint ¶¶ 11-13.) Thus, the allegations in the Government Claim fairly reflect the allegations in the complaint.

Thus, the Court finds that the Government Claim submitted by Plaintiff to District on July 20, 2017, sufficiently placed District on notice of the claims being asserted against it such that District could sufficiently investigate Plaintiff’s claims. (Stockett, (2004) 34 Cal.4th at 446.)

The Court additionally notes that while a part of the Government Claim form upon which District bases its argument states that City owned and controlled the premises, there is no allegation that only City owned and controlled the premises. Furthermore, the very next sentence provides that more details are alleged in attachment A. Thus, the allegation in attachment A that both District and City owned and controlled the premises are not so inconsistent and do not render the Government Claim so uncertain that District was not placed on notice of the claims being asserted against it such that it could not reasonably investigate.

The Court notes that the cases cited by District in support of its argument are inapplicable since the allegations in attachment A of the Government Claim clearly provide that Plaintiff was asserting a claim based on dangerous condition of public property against District and this theory is asserted in the first cause of action. (Complaint Exhibit A, attachment A ¶ 5.)

Accordingly, the demurrer to the first cause of action is OVERRULED.

c. Third Cause of Action: Public Entity Liability

District brings the same argument that City did in its demurrer, namely that as a public entity, District cannot be liable for common law negligence because it is not based on a statute. Plaintiff opposes on the same grounds as she opposed City’s demurrer, namely that the complaint sufficiently alleges a cause of action based on Government Code section 835 which allows a public entity to be sued for negligence. The Court’s analysis as to this issue below is the same as it was for City’s demurrer.

District is a public entity. (Government Code § 811.2.) Under the Government Claims Act, a public entity is not liable for an injury except as otherwise provided by statute. (Gov’t Code § 815; State ex rel. Department of California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1009.) Thus, all government tort liability must be based on statute. (Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932.) In the absence of a constitutional requirement, public entities may be held liable only if a statute is found declaring them to be liable. (Id. at 932.)

Because all liability under the Government Claims Act is statutory, “the general rule that statutory causes of action must be pleaded with particularity is applicable.” (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) Thus, “to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) “Since the duty of a government agency can only be created by statute . . ., the statute . . . claimed to establish the duty must at the very least be identified.” (Id. at 802.)

The Court finds that the third cause of action fails to sufficiently allege a statutory basis. Rather, the third cause of action seems to be based on general common law negligence for which District as a public entity cannot be liable. (Gov’t Code § 815; State ex rel. Department of California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1009.) The Court notes that it is true as noted in the opposition that Plaintiff may assert a claim based on Government Code section 835 against District for injury suffered by Plaintiff due to a dangerous condition of public property. However, this theory of recovery is already alleged in the first cause of action.

Thus, since the third cause of action fails to allege a proper statutory basis, the demurrer to the third cause of action is SUSTAINED.

Regarding leave to amend, the Court notes that Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129 citing to Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) The intent of the Tort Claims Act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied. (Id.)

Here, the complaint is based on the allegation that Plaintiff was injured because of a dangerous condition of public property consisting of a dangerous roadway/crosswalk that did not have proper safeguards to prevent students from being struck by vehicles. (Complaint ¶¶ 6, 9, 11-13, 18, 21-22, 25-26, 29.) The complaint further alleges that this dangerous condition was caused by the negligent acts or omissions of the defendants. (Id. ¶¶ 11-15.) Furthermore, the first, second and third causes of action effectively allege that the defendants (including District) were negligent in owning, controlling and maintaining their premises in a safe manner. (Complaint ¶¶ 11-13.) Such allegations prompting public entity liability based on a dangerous condition of public property is governed exclusively under Government Code section 835. (Metcalf, 42 Cal.4th at 1129.)

Therefore, the Court finds that Plaintiff cannot reasonably amend the third cause of action. Thus, no leave to amend is granted as to the third cause of action. District is ordered to file an answer within ten days of this order.

Moving Party is ordered to give notice.