Case Number: BC696190 Hearing Date: June 28, 2018 Dept: 4

MOVING PARTY: Defendant, County of Los Angeles

RESPONDING PARTY: Plaintiffs, Kristine and Katarina Habelmann

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

BACKGROUND

Plaintiffs Kristine and Katarina Habelmann (“Plaintiffs”) filed a wrongful death complaint on March 2, 2018, alleging three causes of action for negligence premises liability, and statutory liability/dangerous condition of public property pursuant to Government Code section 835. On May 29, 2018, Defendant County of Los Angeles (“Defendant” or the “County”) filed a demurrer to the complaint. Plaintiffs filed their opposition on June 15, 2018. Defendant filed a reply on June 21, 2018.

Plaintiff’s complaint arises from the death of Decedent Stefan Habelmann (“Decedent”), Plaintiffs’ father. (Compl. ¶ 1.) On March 4, 2017, Decedent was operating his motorcycle eastbound on Oxnard Street between Yolanda Avenue and Reseda Boulevard in Tarzana, California in the County. (Compl. ¶ 4.) On that date, Alexandra Price (“Price”) was operating a vehicle on defendant Tarzana Treatment Centers, Inc.’s (“TTC”) premises. (Compl. ¶ 5.) Price attempted to merge onto traffic from the south curb, in the middle of the block and then make a U-turn to head westbound on Oxnard Street. (Ibid.) However, Price turned her vehicle directly in front of Decedent’s oncoming motorcycle. (Ibid.) The Complaint alleges that due to the lack of traffic signs, traffic lights, center dividers, as well as a lack of visibility from the curvature of the road, caused a known dangerous condition on TTC’s premises, and constituted a dangerous condition of public property controlled by the County, the City of Los Angeles (the “City”), and the State of California. (Compl. ¶¶ 6, 24, 37.)

Defendant’s Demurrer

Defendant demurs to the sole cause of action alleged against it, the third cause of action. Defendant argues that Plaintiff cannot establish that Defendant operated, managed, designed, planned, engineered, maintained, and inspected the area where the accident took place. Defendant supports this argue with its request for judicial notice, which asks the court to find that the County had no jurisdiction over the area. Defendant asserts that it is an improper party and must be dismissed. Defendant further argues that the claim fails to state a claim because the other statutory bases for liability fail to allege facts regarding its employee’s liability under those statutes.

Plaintiffs oppose and argue that the request for judicial notice is inappropriate. Plaintiffs argue that a demurrer is confined to the face of the pleading, and Defendant’s arguments are premised on material factual issues. Plaintiffs specifically oppose the request for judicial notice because the request is based on unauthenticated documents, hearsay statements, and facts that can and are controverted. Plaintiff asserts that this is not a proper forum to rely on evidentiary materials such as Defendant’s RJN and Declarations. Plaintiff additionally contends that they have plausibly alleged the essential facts for the dangerous condition claim. Plaintiffs argue that the FAC establishes that the County owned or controlled the property, the dangerous condition created a foreseeable risk, the County’s employee(s) acted negligently and within the scope of their employment, or that the County had notice of the dangerous condition, and that Plaintiffs were harmed by the dangerous condition. (Compl. ¶¶ 30-43.)

Defendant replies that the County does not own or control the incident location. Defendant argues that the RJN is proper and demonstrates that the location was annexed by the City in 1915. (RJN Ex. B.) Defendant concludes that this document, the Government Code, and the Streets and Highway Code establish that the County did not and does not own or control the area on the date of the incident. Further, Defendant contends that the mere mentioning of statutes in the complaint does not create a cause of action unless the facts specifically support the violation. Defendant asserts that Plaintiffs have provided no facts that support any of the codes cited in the complaint.

LEGAL STANDARD

Meet and Confer Requirement

CCP 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. (CCP § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (CCP § 430.41(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. (CCP § 430.41(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, supra, 147 Cal.App.4th at 747.)

DISCUSSION

Meet and Confer Requirement

Defense counsel’s declaration regarding her efforts to contact Plaintiff regarding the demurrer satisfy CCP § 430.41(a)(3)(B)’s declaration requirement. (Corry Decl. ¶¶ 5-15.)

Defendant’s Request for Judicial Notice

Defendant requests that the Court take judicial notice of the following facts/documents: 1) The location of the incident, as supported by the Declaration of Carol Chapparo; 2) Exhibit B – City of Los Angeles Ordinance No. 32192 (May 4, 1915); and 3) The County did not on March 4, 2017, nor does it now, have any authority, duty, or responsibility to own, inspect, and maintain the incident location, as supported by the Declaration of Carol Chapparo. Plaintiffs object to the RJN, arguing that Defendant inappropriately attempts to have the Court take judicial notice of contested facts.

It is unnecessary to take judicial notice of the first request, as that facts of the location of the incident is established on the face of the Complaint. Further, the support for this fact is inappropriately based on an evidentiary declaration, where Carol Chaparro testifies that she performed a review of County records and states that the area of the incident is not within the jurisdiction of the County. (Chaparro Decl. ¶ 7.) Therefore, the Court will only take judicial notice of this fact as it is supported by the Complaint, but not any aspect of the Chaparro declaration.

On this basis, Plaintiffs’ objection is well-taken as to the third request. The Court cannot take judicial notice of disputed facts, and the third request specifically requests notice of clearly disputed facts that attempt to turn the hearing on demurrer into an evidentiary hearing with testimonial declarations. (Richtek USA, Inc. v. uPI Semiconductor Corporation (2015) 242 Cal.App.4th 651, 660.) Neither is this fact an official act under Evidence Code section 452(c) or judicially noticeable under any other section. (Evid. Code § 452(a)-(g).) Given the well-established rules regarding judicial notice and demurrers, these facts will not be noticed, as they are controverted and not unsupported by judicially noticeable documents. (Evid. Code § 452(f), (g).) However, the same is not true for the second request.

The second request asks the Court to take notice of a City ordinance, which states that the City annexed the unincorporated area of Tarzana, including the area of the incident. This request should be granted, as judicial notice is proper as an official act. (Evid. Code § 452(c).) Ironically, the requested document does nothing to aid Defendant’s demurrer. The requested document only establishes that the City annexed and owns the incident area. Even in conjunction with Defendant’s cited statutes in reply, Exhibit B does not conclusively establish and controvert the allegation that Defendant did not control the area on demurrer. (Compl. ¶ 37; see Govt. Code § 57385 [“all roads and highways or portions of a road or highway in the territory which had been accepted into the county road system… shall become… city streets on the effective date of the incorporation”]; Sts. & Hy. Code § 1921 [“city shall have jurisdiction to prescribe the requirements for maintenance… of all streets within the limits of the city”].) It may be the case that Defendant did not control the area of the incident. Certainly, if Defendant did not control the area, Defendant would have no liability under section 835. However, this is not for determination on demurrer, but for trial or other dispositive motion where evidence may be weighed.

Accordingly, Defendant’s RJN is GRANTED as to request nos. 1 and 2, but DENIED as to request no. 3.

Third Cause of Action – 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 allegations establish that the County controlled the area of the accident. (Compl. ¶ 37.) The complaint further alleges that the property was in a dangerous condition by the lack of signage and the curve of the road. (Compl. ¶ 31.) This dangerous condition caused Decedent’s death. (Ibid.) Defendant knew or should have known about the dangerous condition and they had sufficient time to remedy or warn against the dangerous condition. (Compl. ¶ 35.) Defendant’s employees also created the dangerous condition. (Compl. ¶ 42.) Additionally, this was foreseeable because there were multiple prior accidents in the same area prior to March 4, 2017. (Compl. ¶¶ 31-33, 36.) This establishes each of the necessary elements of a Government Code section 835 claim. Because the Complaint establishes the County’s liability under Government Code section 835, the demurrer should be overruled. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38–39 [any legal theory will suffice on demurrer].)

Accordingly, Defendant’s demurrer to the third cause of action is OVERRULED.

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THE COURT ORDERS:

Defendant’s demurrer is OVERRULED.

Defendants are to file and serve an answer within 10 days.

The moving party is ordered to provide notice of this ruling.

IT IS SO ORDERED.

DATED: June 28, 2018

___________________________

Dennis Landin

Judge of the Superior Court