Case Number: BC658630 Hearing Date: June 27, 2018 Dept: 4

MOVING PARTY: Defendant, City of Los Angeles

RESPONDING PARTY: Plaintiff, Curtis Winn

The court considered the moving, and opposition papers.

BACKGROUND

Plaintiff Curtis Winn (“Plaintiff”) filed a complaint on April 20, 2017, alleging a single cause of action for negligence. On February 1, 2018, Plaintiff added Defendant City of Los Angeles (“Defendant”) as a doe defendant. On April 4, 2018, Plaintiff filed a First Amended Complaint (“FAC”), alleging two causes of action for 1) negligence and 2) premises liability. On May 30, 2018, Defendant filed a demurrer to the FAC. Plaintiff filed an opposition on June 7, 2018.

Plaintiff’s FAC arises from a slip and fall incident at a public transit center in Los Angeles known as Pershing Square. Plaintiff alleges that on August 24, 2016, Plaintiff was at Pershing Square, which is controlled by Defendant. (FAC ¶¶ 12-13, 15.) Plaintiff was walking up the stairs of the transit center when his foot caught on faulty, uneven carpeting/flooring of Pershing Square, that was not properly placed/secured, causing him to trip and fall, resulting in injuries. (FAC ¶ 14.) Plaintiff further alleges that Defendant had notice of the dangerous condition of the faulty, uneven carpeting and that Defendant negligently maintained Pershing Square which caused Plaintiff’s damages. (FAC ¶¶ 16-22.)

Defendant’s Demurrer to the First and Second Causes of Action

Defendant demurs to the first and second causes of action of the FAC. Defendant argues that the first cause of action for negligence is barred against Defendant because it is a public entity. Defendant asserts that common law negligence cannot be asserted against it based on Govt. Code section 815(a). As to the second cause of action for premises liability, Defendant contends that the FAC fails to meet the statutory requirements necessary for a cause of action under Govt. Code section 835 (dangerous condition of public property). Defendant states that Plaintiff fails to plead with particularity the location of the incident, fails to sufficiently identify the alleged dangerous condition, fails to allege that the dangerous condition created a foreseeable risk, fails to plead notice, and is uncertain.

Plaintiff opposes and argues they have pled sufficient facts to support a Govt. Code section 835 claim. Specifically, Plaintiff asserts that the FAC establishes the specific location of the incident, at Pershing Square walking up the stairs to catch a bus on Hill St. (FAC ¶ 14.) Plaintiff states that the FAC identifies the dangerous condition as the uneven carpeting/flooring of Pershing Square which was not properly placed/secured. (FAC ¶ 14.) Plaintiff also argues that the FAC alleges control and notice on part of Defendant. (FAC ¶¶ 14-16.) As to the second cause of action, Plaintiff asserts that the premises liability is based on general negligence principles which are the same elements required for the section 835 claim.

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.)

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.)

DISCUSSION

Meet and Confer Requirement

Defense counsel’s declaration indicates that Plaintiff’s counsel failed to respond to the meet and confer requests of Defendant, which satisfies CCP § 430.41(a)(3)(B)’s declaration requirement. (Sawaf Decl. ¶¶ 2-3.)

Request for Judicial Notice

Defendant requests that the Court take judicial notice of the First Amended Complaint in the instant action. This request is GRANTED. (Evid. Code § 452(d).)

First Cause of Action – Negligence (Gov. Code § 835(a))

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.)

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.) “ ‘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.)

Here, Defendant is alleged to be a public entity. (FAC ¶ 2.) Thus, the above discussed restrictions to common law causes of action apply to Defendant. Defendant demurs to the first cause of action on the grounds that common law negligence is barred by Gov. Code section 815. While the first cause of action is styled as a “negligence” claim, a title to a cause of action is immaterial. If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38–39.) Examining the pleadings, the FAC reveals that the first cause of action states a Govt. Code section 835(a) claim, as the statute itself is directly cited within the cause of action. (FAC ¶¶ 16-17.) The Court will therefore examine the validity of the first cause of action as a Govt. Code section 835 dangerous condition of public property claim. Defendant’s arguments against the second cause of action for premises liability are relevant for the instant discussion, so the Court will take those arguments as directed to this cause of action. However, the Court disagrees with Defendant’s analysis.

Plaintiff correctly concludes that the FAC does state a claim for a dangerous condition of public property claim under Govt. Code section 835. The FAC establishes that Defendant’s public transit station, known as Pershing Square, had a dangerous condition related to the unsafe and uneven carpeting/flooring on the stairs. (FAC ¶ 14.) This dangerous condition caused Plaintiff to trip and injure himself while he was trying to catch a bus at Pershing Square. (FAC ¶ 14.) The FAC further alleges that the uneven carpeting/flooring was a reasonably foreseeable risk and Defendant had actual or constructive notice of the condition. (FAC ¶¶ 15-17.) This satisfies all the statutory requirements for Defendant’s liability under Govt. Code section 835. Defendant has not cited any authority which requires any more specificity than what is already present in the FAC for pleading purposes.

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

Second Cause of Action – Premises Liability

The FAC and Plaintiff’s opposition reveal that the second cause of action is not based on any statutory authority. (FAC ¶¶ 21-24.) In fact, Plaintiff asserts that the second cause of action is “based on general negligence principles…” (Opp. p. 6 ln. 6-7.) While Plaintiff may be correct that common-law premises liability would have similar elements as a section 835 claim, this renders the second cause of action subject to the rule against common law causes of action against public entities. (Govt. Code § 815(a).) To the extent that the second cause of action would sufficiently state a dangerous condition of public property claim under Govt. Code section 835, the second cause would simply be entirely duplicative of the first cause. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 [the Court may sustain a demurrer against a “duplicative pleading which adds nothing to the complaint by way of fact or theory”].) Because this cause asserts a common-law premises negligence/liability claim against a public entity, the demurrer to the second cause of action is SUSTAINED without leave.

Demurrer for Uncertainty

Defendant’s demurrer for uncertainty as to each cause of action is OVERRULED. As discussed above, Plaintiff has sufficiently established facts regarding Defendant’s statutory liability. Even though the second cause of action for common law premises liability was legally insufficient, Defendant is capable of adequately responding to all the allegations of the FAC and pleading is therefore not uncertain. (Khoury, supra, 14 Cal.App.4th at 616.)

THE COURT ORDERS:

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

Defendant is 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 27, 2018

___________________________

Dennis Landin

Judge of the Superior Court