YI HWAN KIM v. CITY OF SAN JOSE, ET AL.
Case No.: 1-14-CV-266703
DATE: September 2, 2014
TIME: 9:00 a.m.
DEPT.: 3
As an initial matter the Court in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. Any purported requests for judicial notice that do not comply with Rule of Court 3.1113(l) are denied. The Court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike. Accordingly, the Court has not considered the declaration of Plaintiff Counsel David G. Smith, the attached exhibits, or any arguments dependent upon such extrinsic evidence.
Defendant City of San Jose’s Request for Judicial Notice of Plaintiff’s Complaint (Ex. A), while unnecessary as the Court already considers the pleading under attack in analyzing a demurrer, is GRANTED pursuant to Evid. Code §452(d).
Defendant City’s demurrer to the Complaint’s first cause of action for General Negligence on the ground that it fails to state sufficient facts as alleged against it is SUSTAINED. The City is correct that as a public entity it is immune to this common law claim. “Except as otherwise provided by statute,” 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.” Gov. Code §815(a). This provision abolishes all common law or judicially declared forms of liability. Except as required by the federal or state constitutions liability must be based on a California statute. 5 Witkin, Summary of Cal. Law (10th ed., 2005) Torts §223. Government liability in California can only be based on statutes that specifically allow for it, not on common law claims. See, e.g., Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal. 4th 876, 899; Zelig v. Cnty. of Los Angeles (2002) 27 Cal. 4th 1112, 1127. As it fails as a matter of law, leave to amend this claim as alleged against the City is DENIED.
Defendant City’s demurrer to the Complaint’s second cause of action for Premises Liability on the ground that it fails to state sufficient facts as alleged against it is SUSTAINED with 10 days’ leave to amend. While it is possible to state a premises liability claim against a public entity as a dangerous condition of public property claim pursuant to Gov. Code §835, Plaintiff has not yet properly pled such a claim. As presently alleged the claim does not even clearly state whether the City owned or controlled the property where the injury occurred, an essential element of the claim as alleged against a public entity. “[A] public entity is not liable for injuries expect as provided by statute [Gov. Code §815] and [Gov. Code] section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” Brown v. Poway United School Dist. (1993) 4 Cal 4th 829, 829: See also CACI 1100.
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