HORTENCIA PALACIOS;

Plaintiff,

vs.

CITY OF HUNTINGTON PARK, et al.;

Defendants.

Case No.: BC620480

Hearing Date: March 7, 2018

[TENTATIVE] order RE:

defendant’s Demurrer to the FIRST AMENDED complaint

MOTION TO STRIKE the FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant, City of Huntington Park

RESPONDING PARTY: None as of March 2, 2018

The court considered the moving papers.

Background

On May 3, 2016, plaintiff Hortencia Palacios (“Plaintiff”) filed a complaint against defendants, City of Huntington Park and Does 1 through 25. Defendant City of Huntington Park (“Defendant”) filed its first demurrer on May 1, 2017. Plaintiff did not oppose. On May 31, 2017, the court sustained the demurrer with leave to amend. Any amended pleading was to be filed within 10 days of notice of the court’s order. Defendant served the notice of the ruling on June 7, 2017. The final status conference came for a hearing on October 27, 2017. Defense counsel appeared, but Plaintiff and Plaintiff’s counsel did not. The court took the final status conference off calendar.

Plaintiff filed a First Amended Complaint (“FAC”) on November 30, 2017, asserting one cause of action for negligence and negligence per se. (FAC at ¶¶ 16—25.) In the FAC, Plaintiff alleges: she tripped over an elevated sidewalk and sustained injuries and damages (id. at ¶ 9); the elevated sidewalk was a dangerous condition, and defendants had exclusive control over the sidewalk (Id. at ¶¶ 9—10); and Defendant is liable under Government Code Sections 815.2, 815.6, 820, 830, and 835 (Id. at ¶ 16).

On December 5, 2017, Defendant filed an ex parte application seeking to dismiss plaintiff’s FAC based on Plaintiff’s failure to file the First Amended Complaint by the Court’s deadline, and Plaintiff opposed. The Court denied Defendant’s application.

Defendant filed this demurrer and motion to strike on January 3, 2018. Plaintiff has not filed any opposition.

Defendant demurrers on two grounds: (1) a public entity is precluded from a negligence cause of action when based on alleged dangerous conditions on public property and (2) the cause of action is not pled with particularity. Defendant first asserts that under the California Tort Claims Act, public entity liability is statutory in nature. Plaintiff seeks to impose vicarious liability on the City for dangerous sidewalks, but such vicarious liability is not permitted under Government Code Sections 815.2, 815.6, and 820. Defendant also contends that Plaintiff has failed to plead the cause of action with necessary facts and with any particularity. Defendant argues Plaintiff has made only conclusory allegations and has failed to plead details about the elevated sidewalk, including the color, width, or length of the elevation. (Demurrer at p. 6.)

Defendant also moves to strike either the entire FAC or portions of it under C.C.P. §§ 435 and 436. Defendant argues the entire FAC should be stricken because Plaintiff failed to file the amended complaint within the time set by the court. (Id. at p. 4.) Alternatively, Defendant moves to strike portions: (1) page 5, paragraph 16, lines 18—19; (2) page 6, paragraph 20, lines 7—8; (3) page 6, paragraph 21, lines 11—12; and (4) page 6, paragraph 22, lines 17—18. Defendant asserts that these sections are improper and irrelevant. (Mt. to Strike at p. 5.)

Plaintiff has not filed any opposition to the demurrer or motion to strike.

LEGAL STANDARD

Meet and Confer Requirement

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading to determine whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. § 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, 147 Cal.App.4th at 747.)

Under the Government Tort Liability Act, all liability is statutory and statutory causes of action must be specifically pleaded — i.e., every element of the statutory basis for liability must be alleged. 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 Dist. (1986) 177 Cal.App.3d 792, 802.) Public entity liability for property defects is not governed by the general rule of vicarious liability provided in Section 815.2, but rather by the provisions in Section 830 to 835.4. (Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 384.) The current law imposes liability for dangerous conditions on all public entities and sets forth conditions and defenses in detail. (Govt. Code § 830, et seq.)

The general rule is that a general demurrer admits the truth of all material factual allegations in the complaint. Though a plaintiff may be unable to prove his allegations, he need only plead facts showing that he may be entitled to some relief. The allegations are to be liberally construed with a view to attaining substantial justice among the parties. Although facts should be averred in ordinary and concise language, precise form and language are not essential. (C.C.P. § 426.) If upon a consideration of all the facts stated, it appears the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.

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. (C.C.P. § 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. (C.C.P. §§ 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

Meet and confer has been satisfied. Defense counsel declares compliance with the meet and confer requirement. She wrote to plaintiff’s counsel on December 22, 2017, to discuss the filing of a demurrer to the FAC and the legal basis for it. (Decl. of Chariese R. Solorio at ¶ 4, Ex. C.) The parties attempted to engage in telephonic communication concerning the demurrer, but plaintiff’s counsel stopped responding. (Id. at ¶¶ 5–6.) These efforts are sufficient under the statute to show that defense counsel attempted to meet and confer in good faith, even though the efforts were unsuccessful.

The meet and confer requirement was recently added to this statute to help resolve issues before a demurrer need be filed with the court. A proper meet and confer in this case may have obviated an unnecessary demurrer. The court cautions Plaintiff’s counsel not to neglect this requirement in the future.

Demurrer Analysis

The first basis on which Defendant demurrers is that Plaintiff is asserting only vicarious liability, and such a cause of action is not viable under Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379. In Longfellow, the plaintiff alleged five causes of action against the defendant county after she fell on a city sidewalk, including one cause of action for vicarious liability under Government Code Section 815.2. With respect to the cause of action asserted under Government Code Section 815.2, the Court of Appeal noted:

public entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but rather by the provisions in sections 830 to 835.4 of the Government Code. A public employee is not liable for injuries caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment. (Gov. Code, § 840.) This is specifically what the plaintiffs allege in this cause of action. That is, that a dangerous condition of public property existed which should have been repaired by an employee of the County working within the scope of his employment and that, therefore, the County may be vicariously liable for the employee’s failure to act.

(Longfellow, 144 Cal.App.3d at 383 [emphasis added].) The Court concluded that because the employee was immune, the public entity could not be held liable for the acts of the employee.

Defendant’s reliance on Longfellow is misplaced. The cause of action at issue in Longfellow was premised entirely on vicarious liability, which was precluded under Government Code § 840. The court in Longfellow did not hold the public entity completely immune. Instead, the Longfellow court noted that public entity liability for property defects is governed by Government Code sections 830 to 835.4, which provide exceptions to the general rule of immunity. Unlike the plaintiff in Longfellow, Plaintiff here is not relying exclusively on Government Code section 815.2. Instead, Plaintiff asserts a claim that is based on the exception provided in Section 835 for injury caused by dangerous conditions of public property, Section 815.6 for failure to perform a mandatory duty, and Section 820(a) for injuries caused by the acts or omission of a public employee to the same extent that a private person would be liable. These sections work together in providing exceptions to immunity. As such, the demurrer cannot be sustained on the first ground on which Defendant demurrers.

The second ground on which Defendant demurrers is Plaintiff’s failure to plead necessary facts with particularity. Plaintiff seeks to recover based on Sections 835, 820(a), and 815.6.

To allege a negligence cause of action under Section 835, a plaintiff must plead: “(1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff’s injuries; and (5) compensable damage sustained by the plaintiff.” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757–758. See also Brenner v. City of El Cajon (2003) 113 Cal. App. 4th 434, 439.)

Plaintiff’s FAC contains sufficient factual allegations with regard to each of the five elements to state a cause of action for negligence under Government Code section 835. As to the dangerous condition element, Defendant argues that the FAC makes “dim references” to the elevated sidewalk but does not refer to the color, width, or length of the elevation. (Demurrer at p. 6.) However, the Court finds that Plaintiff describes the sidewalk with sufficient details in the FAC when she alleges, “the subject sidewalk had an elevation of more than a half-inch and consisted of a substantial portion of broken aggregate material making up the sidewalk,” and the sidewalk “was obscured by dried foliage, sticks and leaves.” (FAC at ¶ 13.) These allegations identify the alleged defects in the physical condition of the subject property. Plaintiff also alleges the defect was either caused by “either years of decay without repairs or caused by a tree root which was obscured by the shade of the trees.” (Id. at ¶ 9.) The lack of any mention of the sidewalk’s color or length does not render the pleading of this element insufficient, especially when there are other details about the sidewalk. Plaintiff also pleads sufficient facts regarding foreseeable risk (Id. at ¶ 19), actionable conduct (Id. at ¶ 19), causation (Id. at ¶¶ 24—25), and damages (Id. at ¶¶ p. 7).

Plaintiff also sufficiently pleads with particularity the requirements for liability under Section 820(a). Under Section 820(a), public employees are liable for injuries caused by their acts and omissions to the same extent as private persons. A plaintiff must allege that a public employee engaged in conduct within the scope of employment that would render the employee liable to the plaintiff. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1131.) Here, Plaintiff alleges that Defendants failed to: (1) maintain or inspect the sidewalk; (2) repair the dangerous condition; and (3) warn pedestrians of the dangerous condition. (FAC at ¶ 13.)

Plaintiff does not, however, plead with particularity the requirements for liability under Sections 815.6. There are three elements to establish public entity liability under Section 815.6: (1) a mandatory duty was imposed on the public entity by an enactment; (2) the enactment was designed to protect against the particular kind of injury allegedly suffered; and (3) the breach of the mandatory statutory duty proximately caused the injury.” (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 179.) Here, Plaintiff pleads that Defendant failed to perform the duty imposed by Sections 830 and 835. (FAC at ¶ 22.) Plaintiff also pleads that Defendant’s negligence was the sole and proximate cause of her injuries. (Id. at ¶ 24–25.) However, Plaintiff has failed to plead the second element — how Sections 830 and 835 were designed to protect against her injuries.

In light of the foregoing, Defendant’s demurrer is SUSTAINED with leave to amend.

Motion to Strike

In light of the ruling on the demurrer, the motion to strike the First Amended Complaint or portions thereto, is deemed moot. However, to the extent Defendant seeks to strike the First Amended Complaint as untimely filed, the Court notes that this is an argument that this Court has rejected in a previous ex parte application filed on December 5, 2017. Moreover, the Court notes that it may exercise its discretion pursuant to CCP section 581(f), which provides that the court may dismiss the Complaint when a defendant’s demurrer is sustained with leave to amend and the plaintiff fails to amend the pleading within the time allowed by the court. (CCP § 581(f)(2) (emphasis added).) The court exercises its discretion not to strike the First Amended Complaint as Defendant has failed to identify any prejudice from its late filing.

Conclusion

Defendant’s demurrer is SUSTAINED with leave to amend. Plaintiff is to file an amended complaint within 10 days.

Defendant’s motion to strike is DENIED as moot.

Moving party to give notice.

DATED: March 7, 2018 ___________________________

Elaine Lu

Judge of the Superior Court