Case Number: BC677215 Hearing Date: March 12, 2018 Dept: J

Re: Lizet Meza v. County of Los Angeles (BC677215)

DEMURRER TO COMPLAINT

Moving Party: Defendant County of Los Angeles

Respondent: Plaintiff Lizet Meza

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c); Reply OK

Plaintiff alleges that, on or about 4/28/16, Defendant County of Los Angeles (“County”) approved and issued a well permit allowing her to construct and install a new residential drinking well on her property. Plaintiff alleges that on or about 8/31/16, after she had constructed the new drinking well, County rescinded its prior approval for the new well and claimed that the well was encroaching on an easement and could not remain on the property. The complaint, filed 9/26/17, asserts causes of action against County and Does 1-10 for:

Fraud
General Negligence

On 1/25/18, this matter was transferred from Department 91 (personal injury hub to this instant department. A Status Hearing is set for 3/12/18.

Defendant County of Los Angeles (“County”) demurs, per CCP § 430.41, to the first and second causes of action in Plaintiff Lizet Meza’s complaint, on the basis that they both fail to state facts sufficient to constitute causes of action.

Los Angeles County Code § 11.38.180 provides that “[a]ny person whose application for a permit has been denied, or whose permit has been suspended or revoked, may petition the director for a hearing. Such petition shall be in writing, signed by the applicant, and shall set forth in detail the facts and reasons upon which his petition is based. The time limit within which the petition must be filed is 20 business days following the date on which the notice of denial, suspension or revocation was mailed to the applicant. Notice of the time and place of the hearing shall be given to the applicant not less than five business days prior to such hearing, either by registered mail or in the manner required for the service of summons in civil actions. At the time and place set for the hearing, the director will give the applicant and other interested persons an adequate opportunity to present any relevant facts. The director may place any person involved in the matter, including the applicant, under oath. The director may, when he deems it necessary, continue any hearing by setting a new time and place and by giving notice to the applicant of such action. At the close of the hearing, or at any time within 10 days thereafter, the director will order such disposition of the application or permit as he has determined to be proper, and will make such disposition known to the applicant.”

“Where an administrative remedy is provided by statute, relief must be sought from the administrative body, and this remedy must be exhausted before the courts will act. (Abelleira v. District Court of Appeal [(1941)] 17 Cal.2d 280, 292). Exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the courts. (Abelleira v. District Court of Appeal, supra, p. 293; United States v. Superior Court [(1941)] 19 Cal.2d 189, 194). The doctrine of exhaustion of administrative remedies applies where a statute provides an administrative remedy, even though the terms of the statute do not make the exhaustion of the remedy a condition of the right to resort to the courts. (First Nat. Bank v. Board of County Comrs. [(1924)] 264 U.S. 450). The doctrine, whenever applicable, requires not merely the initiation of prescribed administrative procedures; it requires pursuing them to their appropriate conclusion and awaiting their final outcome before seeking judicial intervention. (Home Loan Bank Board v. Mallonee (9 Cir. [1952]) 196 F.2d 336; Aircraft & D. Equipment Corp. v. Hirsch [(1947)] 331 U.S. 752, 767; Red River Broadcasting Co. v. Federal C. Com. (C.A.D.C.) [(1938)] 98 F.2d 282, 287).” Woodard v. Broadway Federal Savings & Loan Ass’n of Los Angeles (1952) 111 Cal.App.2d 218, 220-221 (emphasis added).

In Woodard, the applicable Home Owners’ Loan Act of 1933 codified in Title 24 of the Code of Federal Regulations provided that a person “may request a hearing” by the Home Loan Bank Board to question the validity of the election to the board of directors of a federal savings and loan association. The language of the applicable statute was permissive (“may”) as opposed to mandatory (“must”) with regard to exhausting administrative remedies prior to filing a lawsuit. The Second District, Division Three Court of Appeal determined that “[s]ince an administrative remedy is provided, plaintiffs must first exhaust that remedy before turning to the courts for relief. It lies within the power of the board to determine in the first instance whether a controversy with respect to the internal management of an association is within its sphere of jurisdiction, and the superior court has no jurisdiction to act. To hold otherwise would, in effect, substitute the determination of the courts for the determination which Congress intended should be made by the board, and would defeat the purpose of the act.” Id. at 224-225.

Plaintiff’s complaint does not allege that plaintiff complied with administrative remedies prior to filing suit.

Additionally, “[e]xcept as otherwise provided by statute: (a) 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.” Government Code § 815(a). A “statute” is defined as “an act adopted by the Legislature of this State or by the Congress of the United States, or a statewide initiative act.” Government Code § 811.8. The existence of a specific statutory duty must be pled; “the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638 (citation omitted). Theories of liability based on general tort principles are not controlling and do not apply against County: “direct 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. Plaintiff’s complaint contains no citation to any statutory basis for liability on the part of County.

Also, “[a] public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” Government Code § 818.8. Immunity will prevail where the governmental misrepresentation interfered with either a commercial or financial interest. Johnson v. State (1968) 69 Cal.2d 782, 800.

Lastly, “[a] public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.” Government Code § 818.4.

The demurrer is sustained. The action is dismissed without prejudice to the right of plaintiff to refile upon exhaustion of her administrative remedies.