Case Number: BC691232 Hearing Date: June 27, 2018 Dept: 2

The Demurrer by defendant City of Montebello to the Complaint is SUSTAINED with fifteen days’ leave to amend. The Motion to Strike the prayer for punitive damages by defendant City of Montebello is GRANTED without leave to amend.

Background

On January 23, 2018, plaintiff Carmen Cuardas (“Plaintiff”) filed a complaint against defendants Wells Fargo & Company (“Wells Fargo”), Peter W. Kraus (“Kraus”), City of Montebello (“City”) and Does 1 to 20 alleging a cause of action for negligence/premises liability. The complaint includes a prayer for punitive damages.

The complaint alleges that on April 4, 2017, Plaintiff was injured when he fell due to an unsafe condition consisting of broken metal frames on a sidewalk owned, maintained, controlled, managed and supervised by the defendants. (Complaint ¶¶ 6-8.)

On April 26, 2018, City filed a demurrer and a motion to strike. Plaintiff failed to file an opposition.

Legal Standard

For a demurrer, the allegations of the complaint are read liberally and plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (See Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.)

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

Meet and Confer

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41 and 435.5.)

The Court notes that City has complied with the meet and confer requirement. (See Decl. Ochoa.)

Demurrer

City is public entity. Government Code § 811.2 broadly defines the term public entity to include the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.

Under the Government Claims Act, a public entity is not liable for an injury except as otherwise provided by statute. (Gov’t Code § 815; State ex rel. Department of California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1009.) Thus, all government tort liability must be based on statute. (Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932.) In the absence of a constitutional requirement, public entities may be held liable only if a statute is found declaring them to be liable. (Id. at 932.)

Because all liability under the Government Claims Act is statutory, “the general rule that statutory causes of action must be pleaded with particularity is applicable.” (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) Thus, “to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) “Since the duty of a government agency can only be created by statute . . ., the statute . . . claimed to establish the duty must at the very least be identified.” (Id. at 802.)

The Court finds that the complaint fails to sufficiently allege a statutory basis for the general negligence/premises liability cause of action. (See Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) Since Plaintiff has failed to allege a statutory basis, it is unclear whether the allegations in the complaint are sufficient to meet the heightened pleading standards imposed on Plaintiff in order to allege a claim against City.

The Court also notes City’s argument that Government Code § 835 is Plaintiff’s exclusive statutory basis for liability. The Court finds that based on the allegations in the complaint, Plaintiff’s sole method of recovery against City is pursuant to Government Code § 835 for dangerous condition of public property. The facts of the complaint constitute a cause of action based on a dangerous condition of public property, namely that Plaintiff was injured when he fell due to an unsafe condition consisting of broken metal frames on a sidewalk owned, maintained, controlled, managed and supervised by the defendants. (Complaint ¶¶ 6-8.)

Such allegations prompting public entity liability based on property defects is governed exclusively under Government Code § 835. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129.) As the California Supreme Court stated, “the intent of the [Government 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. (Id.)

Accordingly, the demurrer to the negligence/premises liability cause of action is SUSTAINED with fifteen days’ leave to amend.

Motion to Strike

City moves to strike the prayer for punitive damages on page 4 line 25 of the complaint.

Government Code section 818

City contends that it cannot be liable for punitive damages because California Government Code section 818 prohibits such damages against public entities. Plaintiff has not filed an opposition.

Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant. (Gov. Code, § 818.)

Here, Plaintiff attempts to assert a claim for punitive damages against City. However, because City is a public entity, it cannot be liable for punitive damages pursuant to Government Code section 818.

Accordingly, motion to strike the prayer for punitive damages against City is granted without leave to amend.

Moving Party is ordered to give notice.