18CV337113
Bernice Luis vs City of San Jose et al

Currently before the Court is the demurrer by defendant City of San Jose (“City”) to the complaint of plaintiff Bernice Luis (“Plaintiff”).

Factual and Procedural Background

This is a personal injury action. On November 17, 2017, Plaintiff was on premises located at or about 641 South Sixth Street, San Jose, California, when she tripped and fell over an uneven portion of sidewalk pavement, which presented a dangerous condition. (Complaint, ¶ Prem.L-1.)

The City and defendant County of Santa Clara (collectively, “Defendants”) allegedly owned the public property on which the dangerous condition existed. (Complaint, ¶¶ Prem.L-1 & Prem.L-4.) Defendants breached their duty to Plaintiff “by failing to address, alleviate, remove and/or remedy the dangerous condition on [their] premises, and by failing to warn people, including Plaintiff, of the presence of such a dangerous condition, despite having adequate time and notice to do so.” (Id. at ¶ Prem.L-1.) Additionally, “the surface was improperly maintained and presented an unreasonable danger, which unreasonably increased the risk of injuries.” (Ibid.) Defendants had actual and/or constructive notice of the existence of the dangerous condition in sufficient time prior to Plaintiff’s injury to have corrected it. (Id. at ¶ Prem.L-4.) Furthermore, the condition was allegedly created by Defendants’ employees. (Ibid.) As a result of Defendants’ alleged conduct, Plaintiff suffered severe injuries. (Id. at ¶ Prem.L-1.)

Based on the foregoing allegations, Plaintiff filed the operative complaint against Defendants, alleging causes of action for: (1) premises liability; and (2) general negligence/violation of the Government Code.

On March 27, 2019, the City filed the instant demurrer. Plaintiff filed papers in opposition to the demurrer on May 28, 2019. On June 3, 2019, the City filed a reply.

Discussion

The City demurs to the second cause of action of the complaint on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (e) [failure to allege sufficient facts to constitute a cause of action] & (f) [uncertainty].)

I. Request for Judicial Notice

In connection with its reply, the City asks the Court to take judicial notice of the declaration of its counsel filed on February 26, 2019.
The declaration is a proper subject of judicial notice because it is a court record relevant to a material issue before the Court. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records]; see also People v. Woodell (1998) 17 Cal.4th 969B, 455 [“Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached-in the documents such as orders, statements of decision, and judgments … .’ ”].)

Accordingly, the City’s request for judicial notice is GRANTED.

II. Timeliness

Preliminarily, Plaintiff contends that the demurrer is untimely.

A defendant has 30 days after service of the complaint to demur to the complaint. (Code Civ. Proc., § 430.40, subd. (a).) Before filing a demurrer, the demurring party must meet and confer with the party who filed the challenged pleading to determine whether an agreement can be reached that would resolve the objections to the pleading. (Code Civ. Proc., § 430.41.) If the parties are unable to confer at least five days before the responsive pleading is due, the demurring party is granted an automatic 30-day extension to file a responsive pleading if he or she files and serves a declaration on or before the date the responsive pleading is due. (Code Civ. Proc., § 430.41 subd. (a)(2).) If the matter cannot be resolved, the demurring party shall file and serve a declaration with its demurrer stating either (1) the means by which the parties met and conferred and that they did not reach an agreement, or (2) the party who filed the subject pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 430.41 subd. (a)(3).)

Here, Plaintiff submits a proof of service demonstrating that the City was personally served with the complaint on February 1, 2019. Thus, the City had until March 4, 2019, to file its demurrer to the complaint.

On February 26, 2019, the City filed and served a declaration by its counsel regarding the parties’ meet and confer efforts. Counsel for the City declared that the parties met and conferred at least five days before the City’s responsive pleading was due. Nonetheless, counsel felt that additional meet and confer efforts were necessary. Counsel for the City asked Plaintiff’s counsel for an extension of time to file the City’s responsive pleading, but did not receive a response. Based on the foregoing, counsel for the City asserted that the City was entitled to an automatic 30-day extension to file its responsive pleading under Code of Civil Procedure section 430.41, subdivision (a)(2).

But the City was not entitled to an automatic extension under Code of Civil Procedure section 430.41, subdivision (a)(2) because the automatic extension is only available when “the parties could not meet and confer.” (Code Civ. Proc., § 430.41 subd. (a)(2).) In this case, the City and Plaintiff actually met and conferred. The City’s belief that further meet and confer efforts would be beneficial is not a basis on which the automatic extension can be invoked.

Because the City did not file its demurrer until March 27, 2019, its demurrer is untimely. However, the Court not only has the discretion to consider an untimely demurrer, but resolutions on the merits are favored. (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280-282; see also Jackson v. Doe (2011) 69 Cal.App.3d 747, 753.) Consequently, the Court will exercise its discretion to overlook this procedural defect and consider the merits of the demurrer.

III. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353; see Code Civ. Proc., § 430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.)

IV. Uncertainty

The City demurs to the second cause of action on the ground of uncertainty. The City argues that the claim is “uncertain as to [Plaintiff’s] allegations that the City violated ‘[the] ADA, California Health and Safety Codes, building codes, and/or ordinances,’ as Plaintiff fails to identify any specific ‘ordinances’ or ‘building codes’ or sections of the ADA and California Health and Safety Code making it impossible for the City to meaningfully respond.” (Mem. Ps. & As., pp. 2:6-10 & 6:4-26.)

The City’s argument regarding uncertainty fails to dispose of the second cause of action in its entirety. The claim, as alleged, is also predicated on allegations that the City violated Government Code sections 815.2, 815.4, 815.6, 820, 830.8, 835, and 840.2. (Complaint, ¶ GN-1.) But the City’s argument does not address the claim to the extent it is predicated on violations of the Government Code. Because the City’s argument does not dispose of the claim in its entirety, its demurrer to the claim on the ground of uncertainty is not well-taken. (See PHII, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682 (PHII) [a demurrer does not lie to only a portion of a claim].)

Accordingly, the City’s demurrer to the second cause of action on the ground of uncertainty is OVERRULED.

V. Failure to Allege Facts Sufficient to Constitute a Cause of Action

The City also demurs to the second cause of action on the ground of failure to allege facts sufficient to constitute a cause of action. The City argues that the second cause of action for general negligence/violation of the Government Code fails to state a claim because “[it] cannot be liable for general negligence absent a statutory basis” and, “[t]o the extent that Plaintiff’s second cause of action purports to set forth various statutory bases under the Government Code, [the claim] is wholly identical to those contained in her first cause of action for dangerous condition of public property.” (Mem. Ps. & As., pp. 1:27-2:5 & 3:14-5:28.)

The City’s argument is not well-taken. First, the City acknowledges that the second cause of action at least attempts to state a claim for violations of Government Code sections 815.2, 815.4, 815.6, 820, 830.8, 835, and 840.2, notwithstanding the fact that the claim is labeled as one for general negligence. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [when evaluating the legal sufficiency of a pleading, a court is not bound by the label on a cause of action]; see also Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1190 [the nature of a cause of action does not depend on the label the plaintiff gives it or the relief the plaintiff seeks, but on the primary right involved].)

Second, even if the second cause of action is duplicative of the first cause of action, the fact that a cause of action is duplicative is not a ground on which a demurrer may be sustained. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 (Blickman); see Tracfone Wireless, Inc. v. Los Angeles County (2008) 163 Cal.App.4th 1359, 1368 [indicating same]; see also Code Civ. Proc., § 430.10 [setting forth the grounds for demurrer].) While some cases indicate that duplicative causes of action “may be disregarded” or stricken (see e.g. Ponce-Bran v. Trustees of Cal. State Univ. (1996) 48 Cal.App.4th 1656, 1658, Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395, and Bionghi v. Metropolitan Water Dist. of So. California (1999) 70 Cal.App.4th 1358, 1370), the Sixth District Court of Appeal has found that duplicativeness “is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment” (Blickman, supra, 162 Cal.App.4th at p. 890; see also Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350 [on a motion for summary judgment the California Supreme Court stated that “where breach of an actual term is alleged, a separate implied covenant claim, based on the same breach, is superfluous”]). This Court follows the Sixth District’s guidance and declines to sustain the demurrer on this basis. (See McCallum v. McCallum (1987) 190 Cal.App.3d 308, 315 [as a practical matter, a superior court ordinarily will follow an appellate opinion emanating from its own district].)

Accordingly, the City’s demurrer to the second cause of action on the ground of failure to allege facts sufficient to constitute a cause is OVERRULED.