Case Number: 18STCV05878 Hearing Date: March 06, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ADOLFO VITAL,

Plaintiff,

vs.

CITY OF ARTESIA, et al.,

Defendant(s).

Case No.: 18STCV05878

[TENTATIVE] ORDER RE: DEMURRER TO COMPLAINT

Dept. 3

1:30 p.m.

March 6, 2019

The Court OVERRULES the Demurrer to the Complaint.

I. Background Facts

Plaintiff Adolfo Vital (“Plaintiff”) alleges that in or around March 2017, Defendant the City of Artesia (“the City”) demolished buildings and an eight-foot wall that was adjacent to Plaintiff’s home. Plaintiff further alleges that since the structures were demolished, the vacant lot attracted homeless and transient individuals who set up camp in the lot; and that the individuals became a nuisance to Plaintiff and his family as well as other neighbors. Plaintiff claims that numerous complaints were filed with the City.

On December 11, 2017, Plaintiff alleges that he heard a commotion coming from the vacant lot and claims that he also heard bottles crashing onto his residence. Upon confronting two men at the source of the noise; Plaintiff alleges that suddenly and without warning, one of the men assaulted him and struck him several times with a machete.

On November 21, 2018, Plaintiff filed the operative Complaint asserting claims for (1) Dangerous Condition of Public Property and (2) Negligence against the City. On January 29, 2019, the City filed the instant Demurrer to the first cause of action. Plaintiff opposes.

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 City has fulfilled the meet and confer requirement prior to filing this Demurrer. (See Brown Decl. ¶2.)

b. Requests for Judicial Notice

The City requests that this Court take Judicial Notice of: (1) the City is a public entity. See California Government Code Section 811.2, which defines “public entity” as including a city such as the City.

The City’s Request is GRANTED pursuant to Evid. Code §452(h).

c. First Cause of Action: Dangerous Condition of Public Property

The City demurs to the first cause of action on grounds that the Complaint fails to allege facts sufficient to constitute a cause of action against the City.

Preliminarily, the Court notes that it has been established that there is no liability for California governmental entities in the absence of an express statute or constitutional provision creating or accepting liability (Tolan v. State of California (1979) 100 Cal.App.3rd 980, 986.); and further notes that Plaintiff’s first claim for Dangerous Condition of Public Property is properly raised under Government Code §835 (Compl. ¶15.)

California Government Code section 835 provides that: “…a public entity is liable for injury caused by a dangerous condition of property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) [a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) [t]he public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

In the instant matter, the City avers that a public entity is not, without more, liable under Government Code §835 for the harmful conduct of third parties on its property. (Hayes v. State of California (1974) 11 Cal.3d 469, 472.) The City maintains that in Hayes, the California Supreme Court held that a public entity is not liable for the creation of a dangerous condition on public property where the dangerous condition was in fact created by a third party who attacks a plaintiff. (Id. at pp. 471-472.)

Here, although the City contends that it did not commit any act or omission that caused the transients’ actions; the Court notes that the allegations in Paragraphs 15 through 31 are sufficient to establish a claim under Section 835. Specifically, the allegations in Paragraph 19 allege that the City created the subject dangerous condition by: failing to provide adequate fencing to keep the homeless and vagrants out of the vacant lot; failing to provide adequate warnings prohibiting trespass on the City’s lot; failing to provide adequate supervision; and failing to provide adequate security. (Compl. ¶19.) The Court finds that these allegations sufficiently address the question of whether or not Plaintiff’s injuries were caused by a dangerous condition on the lot and sufficiently establishes concurrent contributing defects in the property (Hayes v. State of California (1974) 11 Cal.3d 469, 472 [stating that “courts consistently refused to characterize harmful third-party conduct as a dangerous condition absent some concurrent contributing defect in the property itself.”].)

Based on the foregoing, the City’s Demurrer is OVERRULED as to the first cause of action.

Moving Party to give notice.