2018-00244183-CU-PA

Aaron Everidge vs. City of Sacramento

Nature of Proceeding: Hearing on Demurrer to the 1st and 2nd Causes of Action in Complaint

Filed By: Trimm, Chance L.

Defendant City of Sacramento’s unopposed demurrer to the first and second causes of action in Plaintiff Aaron Everidge’s complaint is sustained with leave to amend.

The Court notes that Plaintiff filed a first amended complaint on January 10, 2019. However, effective January 1, 2016, absent a stipulation, a party may only amend a pleading as a matter of right in response to a demurrer no later than the date the opposition to the demurrer is due. (CCP § 472(a).) The opposition was due on January 4, 2019 and no stipulation has been presented to the Court. The Court therefore strikes the first amended complaint filed on January 10, 2019, on its own motion. The Clerk is directed to strike the first amended complaint.

In this action Plaintiff alleges that he was struck by a vehicle at an intersection of Seyfarth Way and La Mancha Way. He alleges causes of action for dangerous condition of public property and negligence. He alleges that the City created a dangerous condition by failing to provide overhead street lighting or failed to maintain, inspect and repair an inoperable overhead street light.

The demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) With respect to the first cause of action in which Plaintiff alleged the a non-operational streetlight created a dangerous condition, “[i]n the absence of a statutory or charter provision to the contrary, it is generally held that a municipality is under no duty to light its streets even though it is given the power to do so, and hence, that its failure to light them is not actionable negligence, and will not render it liable in damages to a traveler who is injured solely by reason thereof.” (Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483.) As to the second cause of action for negligence, Defendant is a public entity Plaintiff failed to allege a statutory basis for liability. (Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 96.)

The demurrer is sustained for the reasons stated in Defendant’s memorandum of points and authorities. The Court construes Plaintiff’s failure to oppose the demurrer as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].) Nevertheless, as this is the first challenge to the complaint, leave to amend is granted.

Plaintiff may file and serve an amended complaint no later than January 29, 2019. Defendant shall file and serve its response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP 430.41 extension if necessary.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.