Case Number: BC689653 Hearing Date: May 22, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

george toberman ;

Plaintiff,

v.

city of malibu , et al.;

Defendants.

Case No.: BC689653

Hearing Date: May 22, 2018

[TENTATIVE] order RE:

Demurrer to complaint

MOVING PARTY: Defendant City of Malibu

RESPONDING PARTY: Plaintiff George Toberman

The court has considered the moving, opposition, and reply papers.

Background

Plaintiff George Toberman (“Plaintiff”) filed a complaint on January 8, 2018, alleging two causes of action for premises liability and general negligence against defendants City of Malibu, City of Los Angeles, County of Los Angeles and State of California. The premises liability cause is subdivided into three counts: negligence, willful failure to warn, and dangerous condition of public property. On April 24, 2018, defendant City of Malibu (“Defendant”) filed the instant demurrer to the complaint. Plaintiff filed an opposition on May 8, 2018. Defendant filed a reply on May 9, 2018.

Plaintiff’s complaint arises from an incident that occurred on June 8, 2017 at the Zuma Beach parking lot. Plaintiff was riding his bike when he slipped and injured himself as the result of water and moss on the roadway.

Defendant’s Demurrer to the First and Second Causes of Action

Defendant demurs to each premises liability count and general negligence cause of action. Defendant argues that as a matter of law, a public entity cannot be held liable on a common law theory of liability. Therefore, Plaintiff’s second cause of action for General Negligence and the first cause of action for premises liability count one-negligence, both fail as a matter of law. Further, Defendant asserts that Plaintiff’s Complaint fails to plead the statutory cause of action with particularity under Gov. Code section 835. Defendant argues that the Complaint fails to allege sufficient facts of the dangerous condition and willful failure to warn. Further, the Complaint is uncertain as to the location and whether Defendant controlled that location.

Plaintiff opposes and argues that he has pled sufficient facts for a cause of action for dangerous condition of public property. Plaintiff’s complaint adequately alleges that his bicycle slipped on the dangerous condition from moss and water on the roadway, that Defendant had constructive notice of this condition with time to remedy the danger, and that the location was on public property at or near Westward Beach Road and Zuma Canyon. These allegations are sufficient to state a cause of action for Premises Liability against Defendant.

On reply, Defendant reiterates that a public entity cannot be held liable on a common law theory based on general negligence and that the Complaint is uncertain because it fails to identify the location of the incident with sufficient particularity. Finally, the Complaint also fails to allege that Plaintiff was riding his bicycle with due care.

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LEGAL STANDARD

Meet and Confer Requirement

C.C.P. section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (C.C.P. § 430.41, subd. (a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id. at subd. (a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Id. at subd. (a).)

Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

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 Dep’t of Water & 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 Ct. (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.)

A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

DISCUSSION

Meet and Confer Requirement

Per C.C.P. § 430.41(a), “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer…” C.C.P. § 430.41(a) (emphasis added). Counsel’s declaration regarding sending a single “meet and confer” letter to Plaintiff’s counsel via email and facsimile does not satisfy C.C.P. § 430.41(a)’s requirement that the parties meet and confer in person or by telephone. (Brown Decl. ¶ 2.)

On this occasion, the Court will proceed to address the merits of the demurrer despite the insufficiency of the meet and confer. However, for any future demurrers that may be filed in this action, the Court cautions that an insufficient meet and confer, such as what occurred prior to the instant demurrer, will result in the demurrer being placed off calendar.

Request for Judicial Notice

Defendant requests that the court take judicial notice of the fact that Defendant is a public entity. This request is GRANTED. (Evid. Code § 452(h).)

Demurrer Analysis

General Negligence

Defendant demurs to the premises liability’s first count of negligence and the second cause of action for general negligence, arguing that as a public entity it cannot be sued for common law negligence. Preliminarily, the Court must note that the second cause of action for general negligence does not appear to be asserted against Defendant, but rather solely against the City of Los Angeles. (Compl. ¶ GN-1.) To the extent that the second cause of action is asserted against Defendant, the demurrer is analyzed below.

California Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Govt. Code, § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

The terms “count” and “cause of action” may be used interchangeably in referring to the separately stated portions of the complaint, as there is no strict definition of a cause of action beyond an invasion of a primary right. (Baral v. Schnitt (2016) 1 Cal.5th 376, 381.) “Count” means a group of related paragraphs in the complaint setting forth a legal theory of recovery. Counts “are merely ways of stating the same cause of action differently.” (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mut. Ins. Co. (1993) 5 Cal.4th 854, 860 fn. 1 [dictum states the terms cause of action and counts often used imprecisely and indiscriminately]; see also Hayter Trucking, Inc. v. Shell Western E & P, Inc. (1993) 18 Cal.App.4th 1, 12.)

The Complaint alleges a “count” of general negligence under the premises liability claim, and a cause of action for general negligence. (Compl. pp. 4-5.) These claims are based on the same facts and harm. (Ibid.) Both causes offer a theory of liability apparently based on general negligence, rather than a statutory basis of liability as with the other counts. (Compl. ¶¶ Prem.L-1 – Prem.L-4.)

As stated above, Defendant is a public entity and thus not liable under general tort laws unless expressly permitted by statute. Here, Plaintiff has failed to allege the statutory basis for the premises liability’s first count of negligence and the second cause of action for general negligence. In fact, Plaintiff does not oppose this portion of the demurrer, as his arguments only pertain to the premises liability claim and not the general negligence claim. (Opp. pp. 3-4.)

Defendant’s demurrer is therefore SUSTAINED with leave to amend as to the first cause of action for premises liability count one – negligence, and sustained with leave to amend as to the second cause of action for general negligence, to the extent that the second cause of action is asserted against Defendant.

Premises Liability – Willful Failure to Warn

Civil Code section 846 states that a land owner owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions except: “(a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.” (Civ. Code, § 846.)

Three essential elements must be present to raise a property owner’s negligent act to the level of willful misconduct, as would not be immunized by recreational use immunity statute: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. (Manuel v. Pacific Gas & Elec. Co. (2009) 173 Cal.App.4th 927.)

The Complaint contains no allegations to support a “willful failure to warn” per Civ. Code section 846. The Court could infer that Plaintiff was at the premises for recreational purposes, i.e. cycling. However, the Complaint does not allege facts regarding either the conscious failure to act to avoid the peril on Defendant’s part, or how Plaintiff was invited onto the premises. Plaintiff merely checks off the “willful failure to warn” count without providing facts as to the basis for Defendant’s duty, or even alleging which duty Plaintiff seeks liability under. In fact, Plaintiff fails to address this count in the opposition and only addresses the dangerous condition count. Accordingly, Defendant’s demurrer is SUSTAINED with leave to amend as to the first cause of action for premises liability count two – willful failure to warn.

Premises Liability – Dangerous Condition of Public Property

A public entity is liable for injury caused by a dangerous condition of its property if: 1) the property was in a dangerous condition at the time of the injury; ¿2) the dangerous condition caused the injury; ¿3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; ¿and 4) either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the condition, or the entity had actual or constructive notice of the condition in time to have taken measures to protect against it. (Govt. Code § 835; see Moncur v. City of Los Angeles, Dept. of Airports (1977) 68 Cal.App.3d 118.)

“‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code § 830(a).) A claim alleging a dangerous condition, as required to support a public entity’s liability as a property owner for injuries sustained on the property, may not rely on generalized allegations, but must specify in what manner the condition constituted a dangerous condition. (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434.)

Here, the form complaint alleges that there was water and moss on a public roadway at Zuma Beach parking lot. (Compl. ¶¶ Prem.L-1, GN-1.) Plaintiff was injured when the bike he was riding slipped as a result of the water and moss on the roadway. (Compl. ¶ Prem.L-1.) Plaintiff asserts three counts for premises liability: negligence, willful failure to warn, and dangerous condition. (Compl. p. 4.)

The Complaint, read liberally, properly alleges a dangerous condition and premises liability on part of Defendant. Water and moss on a roadway is properly alleged to be a dangerous condition under Government Code section 830 because such a condition creates a substantial, foreseeable risk of injury, such as slipping and falling as Plaintiff did in the instant case. Further, it is reasonably foreseeable that such a condition could cause such an injury when the property is used with due care, as the property is alleged to be a roadway which the Court can infer is appropriately used for traveling. Lastly, Plaintiff does allege that the public entity had constructive notice of the existence of the dangerous condition. (Compl. ¶ Prem.L-4(a).) These allegations, taken as true, establish premises liability for a dangerous condition of public property per Government Code section 835.

Accordingly, Defendant’s demurrer is OVERRULED as to count three of the first cause of action for premises liability.

Demurrer for Uncertainty

The demurrer for uncertainty is OVERRULED. The Complaint is not so bad that Defendant cannot reasonably determine what issues must be admitted or denied. (Khoury, supra, 14 Cal.App.4th at 616.) Based on the facts and arguments discussed above, Defendant can reasonable ascertain and respond to the instant complaint.

Conclusion

Defendants’ demurrer is SUSTAINED with leave to amend within 20 days as to the Premises Liability’s First and Second Count, and the Second Cause of Action of General Negligence; and OVERRULED as to the Premises Liability’s Third Count.

All parties should note that the hearing on this motion and all future hearings in this case will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

The moving party is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.