Case Number: 18STCV07682 Hearing Date: March 06, 2019 Dept: 2

Defendant City of Los Angeles’ Demurrer, filed on 2/19/19, is OVERRULED as to First and Third Causes of Action of the Complaint. Defendant is to file its Answer within twenty (20) days.

On December 7, 2018, Plaintiff filed the Complaint asserting claims for: (1) negligence- Defendant direct liability; (2) negligence- Defendant vicarious liability/employee negligence; (3) negligence- Defendant/Employee failed to inspect and warn of dangerous condition. Plaintiff alleges that while she was volunteering at the Harbor Animal Care Center, operated, owned, and maintained by Defendant City of Los Angeles (“Defendant”) a German Shepard caused her injuries on June 19, 2018.

On February 5, 2019, Defendant filed this instant demurrer to the Complaint. On February 19, 2019, Plaintiff filed an Opposition.

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. 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. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

Request for Judicial Notice

Defendant requests the Court judicially notice the Claim for Damages and Attachments 1 and 2 filed against Defendant on August 6, 2018.

Defendant’s request is GRANTED pursuant to Evid. Code § 452(c). (See Commercial Union Assurance Co. v. City of San Jose (1982) 127 Cal.App.3d 730, 740 (taking judicial notice of City’s “Notice of Insufficiency and/or Non-Acceptance of Claim”).)

Demurrer

Plaintiff’s argues that Defendant failed to state whether Defendant is demurring to the entire complaint or certain causes of action and fails to state the statutory grounds under which Defendant is objecting. However, the Court finds that Plaintiff was able to more than adequately identify Defendant’s arguments and oppose them. Although Defendant did not clearly state in the Notice these grounds, Defendant makes it clear in their argument that they are demurring to Plaintiff’s first and second causes of action.

For these reasons, the Court will address the merits of the demurrer.

“If a plaintiff relies on more than one theory of recovery against the State, each cause of action must have been reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.” (Nelson v. State of Calif. (1982) 139 Cal.App.3d 72, 79.)

First Cause of Action- Negligence in Violation of Govt. Code §§ 815, 818.6, 835

“Except 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…”. (Govt. Code § 815.)

“A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health of safety.” (Govt. Code § 818.6)

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its 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 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) The 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.” (Govt. Code § 835.)

Here, the Complaint does not allege a factual basis for recovery for failure to make an inspection or dangerous condition of its property which is not fairly reflected in the written claim. Defendant argues Plaintiff filed a Claim for Damages after she was attacked by a German Shepard due to the alleged negligence of the City to conduct a “violent propensity evaluation” of the subject dog and alleged negligence in assigning the dog to Plaintiff, but is completely silent to liability based on a dangerous condition of the Defendant’s property. (RJN, Exh. A.)

First, contrary to Defendant’s argument, it is clear that the “property” Plaintiff is alleging is dangerous is the German Shepard. Second, the basis of the causes of action under Govt. Code §§ 818.6 and 835 is one for negligence. The negligence by Defendant to fail to inspect its property, the German Shepard, which Defendant has stated in its argument, is stated in Plaintiff’s Claim for Damages—“[t]he Claim for Damages states ‘upon information and belief, the Harbor Animal Care Center negligently failed to have a skilled trainer/behaviorist evaluate the dog exposing Carmody to an aggressive dog.” (Demurrer, 7:7-10; RJN, Exh. A.) Under Govt. Code § 835, Defendant is liable for injury caused by a dangerous condition of its property, the German Shepard, if Plaintiff establishes proximate case, foreseeable risk, and either an employee created the dangerous condition by a negligent or wrongful act or omission or Defendant had actual or constructive notice. Plaintiff, as Defendant has stated in their argument, stated in its Claim for Damages that the negligent act by an employee was the failure to conduct a “violent propensity evaluation”. The Claim for Damages is not completely silent to liability based on these statutory bases as Defendant argues, but clearly states the factual basis for these claims.

For these reasons, Defendant’s demurrer is OVERRULED as to the first cause of action.

Third Cause of Action- Negligence in Violation of Govt Code §§ 815.2, 820, 821.4, 840.2, 840.4)

“A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative…”. (Govt. Code § 815.2)

“Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person…”. (Govt. Code § 820.)

“A public employee is not liable for injury caused by his failure to make an inspection, or by reason by making an inadequate or negligent inspection, of any property, other than the property (as defined in subdivision (c) of Section 830) of the public entity employing the public employee, for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.” (Govt. Code § 821.4.)

“An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity 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) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or (b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition…”. (Govt. Code § 840.2.)

Govt. Code § 840.4 defines when a public employee had actual notice or constructive notice.

Here, these Govt. codes under which Plaintiff asserts her third cause of action are similar to those underlying her first cause of action except these focus on the public employee. Defendant makes the same argument that Plaintiff has not alleged facts in the Claim for Damages to support a cause of action based on dangerous condition. As argued above, Plaintiff has alleged the same factual basis.

The Court finds the line of cases Defendant cites to support their argument are not applicable in this case. Cook v. Cnty of Contra Costa, 2016 WL 913395, *4, is not like this case as the court in Cook found a tort claim entirely focused on the adequacy of footwear and maintenance of the property to prevent slip and fall accidents could not put a defendant on notice of a cause of action for failure to provide medication for surgery. Gen. Sec. Servs. Corp. v. Cnty of Fresno (2011) 815 F.Supp.2d 1123, is not like this case as the court in Gen. Sec. Servs. Corp. found a tort claim for conversion rested on a factual foundation separate from one of breach of contract. Fall River Joint Unified Sch. Dist. v. Sup. Ct (1988) 206 Cal.App.3d 431, is not like this case as the court in Fall River Joint Unified Sch. Dist. found a cause of action for negligent supervision is based on an entirely different factual basis than those for dangerous condition and negligent maintenance. Donahue v. State of Cal. (1986) 178 Cal.App.3d 795, is not like this case as the court in Donahue found a claim for allowing an uninsured driver to take a driving test is not based on the same factual allegations as a claim alleging defendant failed to instruct, direct, and control the driver in operation.

Here, Plaintiff does not change her theory of liability underlying her Claim for Damages to the Complaint nor do her causes of action in the Complaint twist or change the factual allegations underlying her Claim for Damages. The factual allegations are the same—Defendant’s negligent evaluation of the German Shepard caused her injuries.

For these reasons, Defendant’s demurrer to the third cause of action is OVERRULED.

Moving Party ordered to give notice.