Case Number: 19STCV35089 Hearing Date: December 17, 2019 Dept: 2

Nielsen, et al. v. La Mirada Theatre for the Performing Arts

The Demurrers of Defendant City of La Mirada, filed on 11/14/2019, is OVERRULED. The City of La Mirada’s Motion to Strike Portion of Plaintiffs’ Complaint, filed on 11/14/2019, is GRANTED.

In her complaint, Plaintiff Priscilla Marie Nielsen alleges that she was at a meeting for the Friends of the Theatre on stage at the La Miranda Theatre for the Performing Arts and fell off the edge of the stage, sustaining permanent injuries. She alleges a single cause of action for premises liability against Defendants City of La Mirada and La Mirada Theatre for the Performing Arts, based on three separate theories: negligence, willful failure to warn, and dangerous condition of public property. Ms. Nielsen’s husband, Plaintiff Clifford Wesley Nielsen asserts a claim for loss of consortium.

The City of La Mirada demurs on three grounds: (1) the complaint against Clifford Wesley Nielsen fails to state a claim against the City because he failed to file a claim under the Government Claims Act; (2) the action against Ms. Nielsen is barred by the worker’s compensation exclusivity doctrine; and (3) the loss of consortium claim is also barred by worker’s compensation exclusivity. The City also moves to strike the allegations of general negligence and willful failure to warn. No opposition has been filed.

I. DEMURRER BASED ON CLIFFORD NIELSEN’S SUBMISSION OF CLAIM FORM

A plaintiff is required to submit a government claim prior to filing suit against a public entity. Gov. Code § 905. A plaintiff may not file an action until a claim is made and rejected.

A plaintiff may allege compliance with the claims requirements by including a general allegation that he or she timely complied with the claims statute. Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236. If the plaintiff fails to include the necessary allegations, the complaint is subject to attack by demurrer. Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 376.

“If a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the government entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity’s records do not show compliance.” Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 376.

Here, the complaint generally alleges that plaintiffs complied with the government claims statutes. The City asks the Court to take judicial notice of the claim form submitted by Priscilla Nielsen, of which the Court does take judicial notice. The Court agrees that there is no mention of any claim by Clifford Nielsen in that form. However, the materials submitted by the City do not establish that Clifford Nielsen did not submit a separate form. The Court may take judicial notice of the absence of any relevant record; however, a request for judicial notice of that fact must be supported by a declaration by a public official stating that a search for relevant records has been conducted and that none were located. Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 376; Fowler v. Howell (1996) 42 Cal. App. 4th 1746, 1752. No such declaration was provided here. The fact that Mr. Clifford’s lack of consortium claim was not mentioned in Ms. Clifford’s claim form does not conclusively establish that that Mr. Clifford did not submit a separate claim.

The demurrer on this basis is overruled.

II. DEMURRERS BASED ON WORKER’S COMPENSATION EXCLUSIVITY DOCTRINE

In the demurrer on this basis, the City argues that Ms. Nielsen was a member of the volunteer group “Friends of the Playhouse” and was meeting with other volunteers at the La Mirada Theatre at the time of the incident, and that as a volunteer Ms. Nielsen was conferred employee status for purposes of workers compensation by a City Resolution.

The City asks the Court to take judicial notice of City Resolution 12-51, of which the Court does take judicial notice. The resolution provides that volunteers who are authorized to perform and who do perform voluntary service without pay for the City “in connection with the City’s ‘Volunteers in Action’ program, the City’s unpaid internship program, and/or any other volunteer services authorized by the City Council or as designated by the City Manager” will be considered as employees for purposes of the City’s worker’s compensation program.

A demurrer reaches defects that appear on the face of the complaint and matters that are subject to judicial notice. Saunders v. Superior Court (1994) 27 Cal. App. 4th 832. The allegations in the Complaint do not establish that Ms. Nielsen was a “volunteer” as defined in the resolution, and the City offers no materials of which the Court may take judicial notice to establish that fact.

The demurrers on this ground must be OVERRULED.

The Court notes that if the City is able to prove the facts that it asserts in the demurrers – that Clifford Nielsen did not submit a claim to the City before filing suit and that Priscilla Nielsen was a “volunteer” covered under the City’s worker’s compensation policy – those facts will likely bar the action. Plaintiffs are encouraged to consider whether the action has merit before proceeding further.

III. MOTION TO STRIKE

A. Paragraph labeled “Prem. L-2”

The City moves to strike the paragraph labeled “Prem. L-2” in the Plaintiff’s first cause of action for premises liability. That paragraph purports to allege a general negligence theory against the City. No specific statute supporting this cause of action is alleged.

Claims against a public entity must be based on statute unless expressly excepted. The complaint has to identify the statute. Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802.

In addition, Plaintiff must allege “detailed and specific” facts to support the elements of statute that is the basis for the claim. Mittenhuber v. City of Redondo Beach, (1983) 142 Cal. App. 3d 1; Green v. Grimes-Stassforth Stationery Co., (1940) 39 Cal. App. 2d 52, 56.

Here, the complaint does not allege a statutory basis for the negligence theory alleged in paragraph “Prem. L-2.” Gov Code §815. The Court thus grants the motion to strike that paragraph. Leave to amend is granted.

B. Count 2 of Premises Liability Cause of Action – Willful Failure to Warn [Civil Code section 846]

The City also moves to strike the paragraph labeled “Prem. L-3” in Plaintiff’s Complaint.

Plaintiff used Judicial Council Form PLD-PI-001(4) in preparing the cause of action for premises liability in the first amended complaint. Plaintiff checked the box concerning “Willful Failure to Warn [Civil Code section 846].” In so doing, Plaintiff has alleged that the defendants “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure or activity.”

This paragraph must be stricken because Plaintiff has not cited any statute that would support a claim on this theory in this paragraph. Civil Code section 846 has no application to the present case. That section creates an exception to the general premises liability standard (quoted above) for recreational users of private property. Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal. App. 4th 927, 937-38. It is simply inapplicable to public entities.

The Court accordingly grants the motion to strike paragraph Prem. L-3.
Moving party is ordered to give notice.