Case Number: BC697948 Hearing Date: November 28, 2018 Dept: 5

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

mary drell ;

Plaintiff,

v.

835 westgate ave llc , et al.;

Defendants.

Case No.: BC697948

Hearing Date: November 28, 2018

[TENTATIVE] order RE:

Demurrer to FIRST AMENDED complaint

motion to strike

MOVING PARTY: Defendant, City of Los Angeles

RESPONDING PARTY: Plaintiff, Mary Drell

The court has considered the moving and opposition papers.

Background

Plaintiff Mary Drell (“Plaintiff”) filed the initial complaint on March 14, 2018. Plaintiff then filed a First Amended Complaint (“FAC”) on May 18, 2018, alleging three causes of action for: 1) premises liability; 2) general negligence; and 3) violation of mandatory duty. Plaintiff’s FAC arises from a slip and fall incident on public property. On March 27, 2017, Plaintiff slipped and fell on a dilapidated sidewalk running in front of 835 Westgate Ave., Los Angeles that was owned by the City.

On October 26, 2018, Defendant City of Los Angeles (the “City” or “Defendant”) filed a demurrer to the FAC’s second and third causes of action, and a motion to strike specific statutory references. On November 15, 2018, Plaintiff filed an opposition.

Defendant’s Demurrer to the FAC

Defendant demurs to the second and third causes of action. Defendant argues that the common-law negligence claim is barred by a matter of law. Defendant asserts that the third cause of action fails as none of the alleged Los Angeles Municipal Code (“LAMC”) sections invoked create a mandatory duty. Defendant would hold that the LAMC creates only discretionary duties to perform maintenance regarding trees. Plaintiff’s sole cause of action is established by Gov. Code section 835.

Plaintiff opposes and argues that she included the second cause of action without the benefit of discovery to determine whether a city employee was liable for negligence under Gov. Code sections 815.2 and 815.4. As to the third cause of action, Plaintiff argues that each of the LAMC statutes creates a mandatory duty due to the mandatory language contained therein.

Defendants’ Motion to Strike

Defendants also move to strike the entire second cause of action or the specific statutory references to Gov. Code sections 815.2, 815.4, 820, 830.8, 840.2. Defendant reiterates its arguments on demurrer to justify its motion to strike the references to the improper statutory grounds for public entity liability.

Plaintiff reiterates her defense of the second cause of action she argued in the demurrer opposition.

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).) A similar meet and confer process and declaration is required for motions to strike. (See CCP § 435.5.)

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.)

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.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

DISCUSSION

Meet and Confer Requirement

Counsel’s declaration satisfies the declaration requirements. (Sawaf Decl. ¶¶ 3-7.)

Second Cause of Action – General Negligence

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.)

Government 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. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129 citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.) The intent of the Tort Claims Act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied. (Metcalf, supra, 42 Cal.4th at 1129.)

Here, the second cause of action arises from the same facts as the premises liability cause of action. (Compl. pp. 5-7.) Plaintiff alleges she was injured when she slipped and fell due to the dilapidated sidewalk. (Compl. p. 5.) Plaintiff concedes that she seeks to hold Defendant liable under Gov. Code section 815.2 for its employee’s negligent actions related to the maintenance of the sidewalk. As discussed above, this is impermissible. The sole statutory basis under the facts alleged in the FAC is the Gov. Code section 835 claim as to Defendant. Defendant, as a public entity may not be held liable for general negligence, even under Gov. Code section 815.2, so long as the employee’s negligent conduct was the negligent maintenance of the public property. (See Metcalf, supra, 42 Cal.4th at 1129.)

Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend as to the second cause of action.

Third Cause of Action – Mandatory Duties

Government Code section 815.6 provides for liability against public entities that violate a “mandatory duty” imposed by an enactment. Section 815.6 states:

Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.

(Gov. Code § 815.6.)

To determine whether an enactment contains a mandatory duty under Government Code section 815.6, the courts have developed a three-pronged test. First, an enactment must impose a mandatory, not discretionary, duty; second, the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and third, a breach of the mandatory duty must be a proximate cause of the injury suffered. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638–639.) Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts. (Creason v. Department of Health Services (1998) 18 Cal.4th 623, 631; see San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 424.)

As to the first prong, the enactment must be obligatory rather than merely discretionary or permissive in its directions to the public entity. (County of Los Angeles, supra, 102 Cal.App.4th at 638–639.) In other words, it must require, rather than merely authorize or permit, that a particular action be taken. (Ibid.) It is not enough that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion. (Ibid.) The first prong is strictly construed, and the courts will only find a mandatory duty if the enactment affirmatively imposes the duty and provides implementing guidelines. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.) In fact, the inclusion of the term “shall” does not necessarily create a mandatory duty, as there may be “other factors that indicate that apparent obligatory language was not intended to foreclose a governmental entity’s or officer’s exercise of discretion. (Id. at 898–899.)

The second prong requires that the mandatory duty be designed to protect against the particular kind of injury a plaintiff suffered. (County of Los Angeles, supra, 102 Cal.App.4th at 638–639.) A plaintiff must show the injury is one of the consequences that the legislature sought to prevent through imposing the alleged mandatory duty. (Ibid.) It is not enough for the enactment to confer some benefit on the class to which plaintiff belongs if the benefit is incidental to the enactment’s protective purpose. (Ibid.)

Here, Defendant asserts that the LAMC sections 56.08, 62.162, 62.163, 62.166 and 62.168 do not establish mandatory duties.[1] Plaintiff contends that Defendants had mandatory duties under those statutes and violated those duties when it failed to repair the raised portions of the sidewalk and remove or maintain the trees. The Court will analyze each statute in turn.

Generally, section 56.08 requires private property owners to maintain trees to not interfere with public streets/passageways. Particularly, this section charges premises owners with maintaining public sidewalks (including broken concrete) as to not “interfere with the free passage of pedestrians” along the sidewalk, in addition to specific requirements for trimming trees. Section 62.166 requires a public entity the Board, through its authorized officers or employees, to have charge of enforcing and carrying out the rules and regulations prescribed under section 56.08. The relevant sections of the code that could be attributed to tree roots, which cause Plaintiff’s damages, cannot be read as a mandatory duty. The subsections lack implementing guidelines, such as who is to trim or remove the tree, when it must be done, how or when notice is to be given, or what reasonable notice consists of. (See Guzman, supra,46 Cal.4th at 898.) The only aspect of the statute that comes to imposing a mandatory duty would be the more specific instructions regarding the height of trees. (See LAMC § 56.08(b)(1)-(3).) Even if a mandatory duty were imposed regarding the tree trimming aspects of the statute, those requirements were not alleged to be the cause of Plaintiff’s injuries.

Sections 62.162, 62.163 and 62.168 also involve discretionary determination by the Board and lack implementing guidelines. Section 62.162 requires the Board to supervise the maintenance of plants in the City and empowers the Board to issue permits related to those acts. Section 62.163 empowers the Board to inspect plants, and destroy them if they are infested. Section 62.168 requires the Board to remove a plant that “appears to be dead, liable to fall, dangerous, or an obstruction to public travel” and provide notice of removal if they make such a determination. A plain reading of the statutes confirms that the Board has the authority to maintain and remove vegetation, but does not provide any specific guidelines regarding when removal is appropriate. Instead, it appears to be a matter of discretion with the Board of when a plant is considered an obstruction, or otherwise requires removal.

Plaintiff, throughout her opposition, emphasizes the “mandatory” language imposing “duties” on the Board in the statutes, such as “shall.” As noted above, this is insufficient to impose a mandatory duty. (County of Los Angeles, supra, 102 Cal.App.4th at 638–639; Guzman, supra, 46 Cal.4th at 898-899.) Moreover, the Court does not take as true Plaintiff’s conclusions of law regarding the LAMC as a mandatory duty. (See Compl. pp. 8-13.)

Accordingly, Defendant’s demurrer to the third cause of action is SUSTAINED without leave to amend.

Motion to Strike

Defendant’s motion to strike targets the entire second cause of action, and the statutory references contained therein. As the demurrer to the second cause of action has been sustained, Defendant’s motion is MOOT.

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Conclusion

Defendant’s demurrer to the second and third causes of action is SUSTAINED without leave to amend.

Defendant’s motion to strike is MOOT.

Defendant is to file and serve an answer within 10 days.

The moving party is ordered to provide notice of this order and file proof of service of such.

DATED: November 28, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] All statutory references are to LAMC, unless otherwise specified.