AGAVNI TERZYAN VS CITY OF SAN DIMAS,

Tentative Rulings

Case Number: *******0832 Hearing Date: March 7, 2023 Dept: 30

Case Number: *******0832 Hearing Date: February 3, 2022 Dept: 30

Department 30, Spring Street Courthouse

February 3, 2022

*******0832

Defendant City of San Dima’s Demurrer to Plaintiff’s Complaint Second Amended Complaint

DECISION

Defendant City of San Dimas’s demurrer is OVERRULED as to Plaintiff’s first cause of action for premises liability and SUSTAINED without leave to amend as to Plaintiff’s second cause of action for general negligence.

Since Plaintiff only references Government Code Section 835 at the end of the second cause of action, Plaintiff is ordered to file a Third Amended Complaint within 15 days of the date of this order clarifying that the first cause of action comes under Government Code Section 835 so as to avoid confusion at a later stage in these proceedings. All pertinent factual allegations from the second cause of action should be moved to the premises liability cause of action.

Plaintiff in the Third Amended Complaint may clarify that the premises liability cause of action comes under Government Code sections 835, 840-840.6, and 815.4. Plaintiff also may amend the complaint as necessary to ensure liability under these provisions is adequately pled.

Defendant is ordered to file an answer or other responsive pleading to the Third Amended Complaint within 15 days of it being filed.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days of the date of this order.

Background

On March 13, 2020, Plaintiff Agavni Terzyan commenced this action against Defendant City of San Dimas. This action arises from an incident on August 30, 2019 in which Plaintiff allegedly tripped over a metal wire protruding from the ground while walking on a crosswalk owned by the City of San Dimas.

Plaintiff’s SAC alleges causes of action of premises liability and general negligence (Government Code sections 815.2, 815, 820, and 835).

On October 4, 2021, Defendant City of San Dimas (“Defendant”) filed the pending demurrer to both causes of action of Plaintiff’s complaint, premises liability and general negligence. Plaintiff opposes

Trial is set for September 9, 2022.

Summary of Arguments

Moving Arguments

Defendant City of San Dimas demurrers both of Plaintiff’s causes of action, premises liability and general negligence. Defendant argues Plaintiff fails to state sufficient facts for both causes of action.

Defendant argues Plaintiff’s first cause of action, premises liability, can only be a basis for liability under the standards of Government Code section 835, applicable to liability of a public entity based on a dangerous condition of public property, but Plaintiff has not alleged facts that could establish each element necessary to establish liability under section 835. (Mot., p. 5.) Specifically, Defendant argues Plaintiff fails because Plaintiff did not identify “of whom the City was the agent or employee.” (Id., p. 7.) According to Defendant, this was necessary because Plaintiff “alleges that the City was the agent or employee of other Doe Defendants. (Id.) Defendant also argues Plaintiff failed to allege what actions by Defendant took that caused the subject incident. (Id.)

Defendant argues Plaintiff’s second cause of action, negligence, fails because a public entity is not liable for common law negligence. (Id., p. 9.) Defendant also argues Plaintiff fails to plead with particularity facts essential to the existence of the City's liability pursuant to any of Government Code section 815.2, 815.4, 820, and 835.

Defendant argues Plaintiff should not be granted leave to amend.

Opposing Arguments

Plaintiff argues she sufficiently alleges all essential elements for Defendant’s liability due to a dangerous condition of public property under Government Code section 835. (Opp., 4-6.) Plaintiff also argues the second cause of action states sufficient facts to constitute a cause of action. (Id., p. 6-8.) For the cause of action of negligence, Plaintiff contends Defendant’s liability stems from Government Code sections 815.2 and 815.4.

Plaintiff requests leave to amend if the Demurrer is sustained.

Legal Standard

Demurrer

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 Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP 430.30(a).) As is relevant here, a party may object to a pleading through a demurrer arguing “the pleading does not state facts sufficient to constitute a cause of action.” (CCP 430.10(e).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 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.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 (Doe).) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157 (Rannard).) “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135 (Lickiss).) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Lickiss, ibid., citing Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734 (Das).) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 (Poizner).) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.

Meet and Confer

A party filing a demurrer “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.” (Code Civ. Proc., 430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., 430.41, subd. (a)(2).)

A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., 430.41(a)(4).)

Judicial Notice

Under California Evidence Code section 453, the Court shall take judicial notice of any matter specified in section 452 if a party requests it and (a) gives each adverse party sufficient notice of the request to enable such adverse party to prepare to meet the request and (b) furnishes the court with sufficient information to enable it to take judicial notice of the matter.

Under California Evidence Code section 452, the Court may take judicial notice, among other things, of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States and facts, court records, and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. ( 452(c), (d), (h).) The Court can take judicial notice of the official acts of a state including records, orders, and reports of its administrative agencies. Rodas v. Spiegel (2001) 87 Cal. App. 4th 513, 518.

Upon demurrer, judicial notice of matters is dispositive only in instances where there is not or cannot be a factual dispute concerning that sought to be judicially noticed. Williams v. Southern California Gas Co. (2009) 176 Cal. App. 4th 591, 599 600.

Discussion

Meet and Confer

The Court notes Defendant has complied with the meet and confer requirement of CCP sections 430.41, subdivision (a). (See Coughlin Decl.)

Request for Judicial Notice

Defendant

Defendant requests the Court take notice of Plaintiff’s responses to the City of San Dimas' Special Interrogatories, Set One, numbers 52, 55, and 56. Defense Counsel, Brendan J. Coughlin, provides a supporting declaration. Plaintiff does not oppose this. The Court will take notice of Plaintiff’s responses to these interrogatories for the purpose of this motion.

Plaintiff

Plaintiff requests the Court take notice of Defendant’s responses to Plaintiff’s Form Interrogatory, Set One, number 17.0. Plaintiff’s counsel, Alike Ekmekchyan, provides a supporting declaration, Defendant does not oppose this. The Court will take notice of Defendant’s response to this interrogatory for the purpose of this motion.

Demurrer

Defendant City of San Dimas demurrers Plaintiff’s causes of action for premises liability and general negligence.

Defendant City of San Dimas’s demurrer is overruled as to Plaintiff’s first cause of action for premises liability and sustained as to Plaintiff’s second cause of action for general negligence.

Pemises Liability

A public entity’s liability for failure to maintain its property in safe condition is statutory and derived from Government Code section 830, et seq. The exclusive conditions under which a public entity may be held directly liable for injuries caused by a dangerous condition of public property are set out by Government Code section 835. (See Zelig v. County of Los Angeles (2002) 27 C4th 1112, 1132, 119 CR2d 709, 725 (“the liability of public entities as property owners is set out specifically in Government Code section 835”); see also, Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809.)

To establish such a public entity’s liability under Government Code section 835, the plaintiff must show (1) the property was in a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, and (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105-1106; Gov. Code 835.) Additionally, the plaintiff must establish either that: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition, or (b) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Id.)

Defendant argues Plaintiff has not alleged facts that could establish each element necessary to establish liability under section 835. (Mot., p. 5.)

In the SAC, Plaintiff’s allegations that pertain to the aforementioned standards are split between the first and second cause of action. Since courts construe demurrers liberally, the Court will review the allegations in the context of the entire complaint. (See Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) Plaintiff also states, at the end of the SAC, “Defendant City of San Dimas and DOES 1 to 20 are liable to Plaintiff pursuant to, among other statutes, Government Code Sections…835.” The Court will, therefore, view section 835 as applying to this cause of action.

Plaintiff presents the following allegations that pertain to liability under section 835: while walking on a crosswalk owned, occupied, and controlled by the City of San Dimas and Does 1 to 20, Plaintiff tripped over (1) the dangerous condition of a metal wire protruding from the pavement, (2) thereby sustaining injuries. Additionally, Plaintiff alleges, (b) Defendant had actual and/or constructive notice of the dangerous condition. (See SAC, p. 4-5.) To this end, Plaintiff alleges Defendant knew of the risks and dangers of the exposed wire or should have known through the exercise of reasonable care. (Id.)

Through the foregoing allegations, Plaintiff pleads sufficient ultimate facts to adequately plead this cause of action. Plaintiff is clear that that the protruding wire is the dangerous condition and that it caused her injuries by causing her to trip and fall. Regarding notice, Plaintiff alleges actual notice because she alleges Defendant knew of the dangerous condition and its risks and dangers. Since actual notice exists when the public entity has “actual knowledge of the existence of the condition and knew or should have known of its dangerous character,” Plaintiff is pleading the ultimate fact for this element rather than a legal conclusion. (Gov Code 835.2(a).) Plaintiff’s allegations and the context of the SAC also adequately point to foreseeability for Defendant to be sufficiently acquainted “with the nature, source and extent of” the cause of action. (See Rannard v. Lockheed Aircraft Corp., 26 Cal.2d at p. 156-157.)

Defendant’s demurrer to Plaintiff’s premises liability cause of action is, therefore, overruled.

General Negligence

Plaintiff’s second cause of action, general negligence, appears to be based on Government Code sections 815.2, 815.4, and 820.

Government Code sections 815.2, 815.4, and 820 govern public entity liability for conduct by its employees or independent contractors. (See SAC, p. 5.)

To this end, the SAC alleges Defendant was negligent in managing, supervising, controlling, and/or operating the subject crosswalk. (Id.) Additionally, the SAC alleges, Defendant was negligent in “hiring, training, supervising, controlling and/or monitoring employees and agents responsible for the maintenance, inspections, repairing, supervision, control, and operations.” (Id.)

As argued by Defendant, Plaintiff cannot assert a separate negligence claim on this basis. (Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 825 (“Their argument is misplaced, however, for the reason that public entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but instead by the specific provisions set forth in sections 830-835.4.”).) Defendant’s alleged negligence in connection with the exposed metal wire is a claim for the creation of a dangerous condition on public property. Notably, Plaintiff failed to address Van Kempen in her opposition. The separate negligence claim is duplicative and the demurrer is properly sustained. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 (“But stating them in two causes of action, as real party has done, is merely duplicative pleading which adds nothing to the complaint by way of fact or theory. For that reason, the demurrer should have been sustained as to this cause of action.”).)

The demurrer to the general negligence cause of action is sustained without leave to amend since Plaintiff has not addressed this issue or offered a cure for this problem. The Court also finds that Plaintiff will be unable to do so.

Conclusion

Defendant City of San Dimas’s demurrer is OVERRULED as to Plaintiff’s first cause of action for premises liability and SUSTAINED as to Plaintiff’s second cause of action for general negligence.

Additional Briefing

On January 11, 2022, the Court continued the hearing on the demurrer to allow Counsel to submit further briefing Re: Scope of the Court's Decision.

Summary

Plaintiff’s Supplemental Opposing Arguments

Plaintiff contends that “the issue before this Court is whether Plaintiff’s first cause of action for premises liability can be amended to allege not only a dangerous condition of public property, under Government Code section 835, but also, liability for the acts and omissions of the City’s employees and agents under Government Code sections 840 - 840.6 and 815.4.” (Supp. Opp., p. 2.)

Plaintiff concedes that the first cause of action, premises liability, comes under Government Code section 835 but also argues that first cause of action alleges vicarious liability pursuant to Government Code sections 840-840.6 and 815.4. Plaintiff claims this liability is based on the acts and omissions of Defendant City’s employees and agents.

Plaintiff requests leave to file a Third Amended Complaint clarifying that the premises liability cause of action comes under Government Code section 835, 840-840.6, and 815.4. In the alternative, Plaintiff requests leave to add a separate statutory cause of action to incorporate Government Code sections 840-840.6 and 815.4.

Defendant’s Reply to Plaintiff’s Supplemental Opposing Arguments

Defendant argues Government Code sections 840, et seq. applies only in situations where public entity employees can be held independently liable despite their role as a public entity employee. According to Defendant, such facts have not been alleged. Defendant also argues Plaintiff’s inclusion of Government Code sections 840-840.6 and 815.4 in a third amended complaint would be duplicative. Defendant contends that Government Code sections 830-835.4 provide Plaintiff with the framework to not only plead premises liability against Defendant but also to include legal analysis of acts or omissions of public entity employees, without the need to incorporate any additional statutory theories of liability for that same purpose. Defendant also argues Plaintiff has failed to allege with specificity facts that would constitute the claimed breach of duty.

Discussion

Demurrer- Supplemental Hearing

Plaintiff requests leave to file a Third Amended Complaint clarifying that the premises liability cause of action comes under Government Code section 835, 840-840.6, and 815.4. In the alternative, Plaintiff requests leave to add a separate statutory cause of action to incorporate Government Code sections 840-840.6 and 815.4.

Plaintiff concedes that the first cause of action, premises liability, comes under Government Code section 835 but also argues that first cause of action alleges vicarious liability pursuant to Government Code sections 840-840.6 and 815.4. Plaintiff claims this liability is based on the acts and omissions of Defendant City’s employees and agents and independent contractors.

Government Code sections 840-840.6

Government Code sections 840 - 840.6 deal with the exclusive means by which public employees as individuals can be liable based on a dangerous condition of public property when such condition exists because of any act or omission of such employee within the scope of his employment. To establish the public employee’s liability, the conditions of Government Code section 840.2 must be established.

Under section 840.2, for an employee of a public entity to be liable for injury caused by a dangerous condition of public property, the plaintiff must establish “that the property of the public entity was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.” Additionally, (a) the dangerous condition must be directly attributable wholly or in substantial part to a negligent or wrongful act of an employee that had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition, or (b) the employee had the authority and responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Section 840.2) Section 840.4 defines notice.

If Plaintiff is asserting vicarious liability against Defendant for injury caused by a condition of public property where such condition exists because of an act or omission of a public employee of Defendant within the scope of his employment, then sections 840-840.6 offer a means to do so. (See Van Kempen v. Hayward Area Park Etc. Dist. (1972) 23 Cal.App.3d 822, 825.)

Plaintiff may, therefore, incorporate Government Code sections 840-840.6 into a third amended complaint. Plaintiff is advised to ensure sufficient allegations are included to support liability under these provisions.

Government Code section 815.4

Government Code section 815.4 states, “A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person.” Section 815.4 continues, “Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.”

The language of section 815.4 shows that, while Defendant may be liable for the acts or omissions of an independent contractor that it has hired, it may only be liable for the independent contractor’s actions if it would have been liable had the act or omission been taken by an employee of the defendant. When a dangerous condition of public property is the operative basis for liability, therefore, the requirements of Government Code section 840.2 must be satisfied in connection with the particular independent contractor for that independent contractor to be liable for injury caused by a dangerous condition of public property.

Additionally, Van Kempen v. Hayward Area Park Etc. Dist. (1972) 23 Cal.App.3d 822 did not explicitly foreclose a public entity’s vicarious liability based on an independent contractor’s actions pursuant to Government Section 815.4. Van Kempen instead dealt with Government Code section 815.2 and discussed that Government Code section 840, et seq. would have to be asserted for a public entity to be vicariously liable for a dangerous condition of public property where such condition exists because of an act or omission of a public employee within the scope of his employment. (23 Cal.App.3d at p. 825). The Van Kempen Court explained why section 815.2 could not serve as an adequate basis, saying, “Since the public entity's liability is a vicarious one, it cannot be held liable for an employee's act or omission where the employee himself would be or is immune.” (Id.) Thus, Van Kempen does not serve to bar Plaintiff from pleading liability pursuant to section 815.4 so long as the liability basis is statutory, such as by satisfying sections 840, et seq. in connection with any independent contractors as one would need to in asserting liability against public employees.

Plaintiff may, therefore, incorporate Government Code section 815.4 into the complaint. Plaintiff is advised to ensure sufficient allegations are included to support liability under section 815.4.

Case Number: *******0832 Hearing Date: January 11, 2022 Dept: 30

Department 30, Spring Street Courthouse

January 11, 2022

*******0832

Defendant City of San Dimas’s Demurrer to Plaintiff’s Complaint Second Amended Complaint

DECISION

Defendant City of San Dimas’s demurrer is OVERRULED as to Plaintiff’s first cause of action for premises liability and SUSTAINED without leave to amend as to Plaintiff’s second cause of action for general negligence.

Since Plaintiff only references Government Code Section 835 at the end of the second cause of action, Plaintiff is ordered to file a Third Amended Complaint within 15 days of the date of this order clarifying that the first cause of action comes under Government Code Section 835 so as to avoid confusion at a later stage in these proceedings. All pertinent factual allegations from the second cause of action should be moved to the premises liability cause of action.

Defendant is ordered to file an answer or other responsive pleading to the Third Amended Complaint within 15 days of it being filed.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days of the date of this order.

Background

On March 13, 2020, Plaintiff Agavni Terzyan commenced this action against Defendant City of San Dimas. This action arises from an incident on August 30, 2019 in which Plaintiff allegedly tripped over a metal wire protruding from the ground while walking on a crosswalk owned by the City of San Dimas.

Plaintiff’s SAC alleges causes of action of premises liability and general negligence (Government Code sections 815.2, 815, 820, and 835).

On October 4, 2021, Defendant City of San Dimas (“Defendant”) filed the pending demurrer to both causes of action of Plaintiff’s complaint, premises liability and general negligence. Plaintiff opposes

Trial is set for September 9, 2022.

Summary of Arguments

Moving Arguments

Defendant City of San Dimas demurrers both of Plaintiff’s causes of action, premises liability and general negligence. Defendant argues Plaintiff fails to state sufficient facts for both causes of action.

Defendant argues Plaintiff’s first cause of action, premises liability, can only be a basis for liability under the standards of Government Code section 835, applicable to liability of a public entity based on a dangerous condition of public property, but Plaintiff has not alleged facts that could establish each element necessary to establish liability under section 835. (Mot., p. 5.) Specifically, Defendant argues Plaintiff fails because Plaintiff did not identify “of whom the City was the agent or employee.” (Id., p. 7.) According to Defendant, this was necessary because Plaintiff “alleges that the City was the agent or employee of other Doe Defendants. (Id.) Defendant also argues Plaintiff failed to allege what actions by Defendant took that caused the subject incident. (Id.)

Defendant argues Plaintiff’s second cause of action, negligence, fails because a public entity is not liable for common law negligence. (Id., p. 9.) Defendant also argues Plaintiff fails to plead with particularity facts essential to the existence of the City's liability pursuant to any of Government Code section 815.2, 815.4, 820, and 835.

Defendant argues Plaintiff should not be granted leave to amend.

Opposing Arguments

Plaintiff argues she sufficiently alleges all essential elements for Defendant’s liability due to a dangerous condition of public property under Government Code section 835. (Opp., 4-6.) Plaintiff also argues the second cause of action states sufficient facts to constitute a cause of action. (Id., p. 6-8.) For the cause of action of negligence, Plaintiff contends Defendant’s liability stems from Government Code sections 815.2 and 815.4.

Plaintiff requests leave to amend if the Demurrer is sustained.

Legal Standard

Demurrer

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 Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP 430.30(a).) As is relevant here, a party may object to a pleading through a demurrer arguing “the pleading does not state facts sufficient to constitute a cause of action.” (CCP 430.10(e).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 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.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 (Doe).) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157 (Rannard).) “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135 (Lickiss).) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Lickiss, ibid., citing Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734 (Das).) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 (Poizner).) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.

Meet and Confer

A party filing a demurrer “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.” (Code Civ. Proc., 430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., 430.41, subd. (a)(2).)

A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., 430.41(a)(4).)

Judicial Notice

Under California Evidence Code section 453, the Court shall take judicial notice of any matter specified in section 452 if a party requests it and (a) gives each adverse party sufficient notice of the request to enable such adverse party to prepare to meet the request and (b) furnishes the court with sufficient information to enable it to take judicial notice of the matter.

Under California Evidence Code section 452, the Court may take judicial notice, among other things, of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States and facts, court records, and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. ( 452(c), (d), (h).) The Court can take judicial notice of the official acts of a state including records, orders, and reports of its administrative agencies. Rodas v. Spiegel (2001) 87 Cal. App. 4th 513, 518.

Upon demurrer, judicial notice of matters is dispositive only in instances where there is not or cannot be a factual dispute concerning that sought to be judicially noticed. Williams v. Southern California Gas Co. (2009) 176 Cal. App. 4th 591, 599 600.

Discussion

Meet and Confer

The Court notes Defendant has complied with the meet and confer requirement of CCP sections 430.41, subdivision (a). (See Coughlin Decl.)

Request for Judicial Notice

Defendant

Defendant requests the Court take notice of Plaintiff’s responses to the City of San Dimas' Special Interrogatories, Set One, numbers 52, 55, and 56. Defense Counsel, Brendan J. Coughlin, provides a supporting declaration. Plaintiff does not oppose this. The Court will take notice of Plaintiff’s responses to these interrogatories for the purpose of this motion.

Plaintiff

Plaintiff requests the Court take notice of Defendant’s responses to Plaintiff’s Form Interrogatory, Set One, number 17.0. Plaintiff’s counsel, Alike Ekmekchyan, provides a supporting declaration, Defendant does not oppose this. The Court will take notice of Defendant’s response to this interrogatory for the purpose of this motion.

Demurrer

Defendant City of San Dimas demurrers Plaintiff’s causes of action for premises liability and general negligence.

Defendant City of San Dimas’s demurrer is overruled as to Plaintiff’s first cause of action for premises liability and sustained as to Plaintiff’s second cause of action for general negligence.

Premises Liability

A public entity’s liability for failure to maintain its property in safe condition is statutory and derived from Government Code section 830, et seq. The exclusive conditions under which a public entity may be held directly liable for injuries caused by a dangerous condition of public property are set out by Government Code section 835. (See Zelig v. County of Los Angeles (2002) 27 C4th 1112, 1132, 119 CR2d 709, 725 (“the liability of public entities as property owners is set out specifically in Government Code section 835”); see also, Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809.)

To establish such a public entity’s liability under Government Code section 835, the plaintiff must show (1) the property was in a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, and (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105-1106; Gov. Code 835.) Additionally, the plaintiff must establish either that: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition, or (b) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Id.)

Defendant argues Plaintiff has not alleged facts that could establish each element necessary to establish liability under section 835. (Mot., p. 5.)

In the SAC, Plaintiff’s allegations that pertain to the aforementioned standards are split between the first and second cause of action. Since courts construe demurrers liberally, the Court will review the allegations in the context of the entire complaint. (See Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) Plaintiff also states, at the end of the SAC, “Defendant City of San Dimas and DOES 1 to 20 are liable to Plaintiff pursuant to, among other statutes, Government Code Sections…835.” The Court will, therefore, view section 835 as applying to this cause of action.

Plaintiff presents the following allegations that pertain to liability under section 835: while walking on a crosswalk owned, occupied, and controlled by the City of San Dimas and Does 1 to 20, Plaintiff tripped over (1) the dangerous condition of a metal wire protruding from the pavement, (2) thereby sustaining injuries. Additionally, Plaintiff alleges, (b) Defendant had actual and/or constructive notice of the dangerous condition. (See SAC, p. 4-5.) To this end, Plaintiff alleges Defendant knew of the risks and dangers of the exposed wire or should have known through the exercise of reasonable care. (Id.)

Through the foregoing allegations, Plaintiff pleads sufficient ultimate facts to adequately plead this cause of action. Plaintiff is clear that that the protruding wire is the dangerous condition and that it caused her injuries by causing her to trip and fall. Regarding notice, Plaintiff alleges actual notice because she alleges Defendant knew of the dangerous condition and its risks and dangers. Since actual notice exists when the public entity has “actual knowledge of the existence of the condition and knew or should have known of its dangerous character,” Plaintiff is pleading the ultimate fact for this element rather than a legal conclusion. (Gov Code 835.2(a).) Plaintiff’s allegations and the context of the SAC also adequately point to foreseeability for Defendant to be sufficiently acquainted “with the nature, source and extent of” the cause of action. (See Rannard v. Lockheed Aircraft Corp., 26 Cal.2d at p. 156-157.)

Defendant’s demurrer to Plaintiff’s premises liability cause of action is, therefore, overruled.

General Negligence

Plaintiff’s second cause of action, general negligence, appears to be based on Government Code sections 815.2, 815.4, and 820.

Government Code sections 815.2, 815.4, and 820 govern public entity liability for conduct by its employees or independent contractors. (See SAC, p. 5.)

To this end, the SAC alleges Defendant was negligent in managing, supervising, controlling, and/or operating the subject crosswalk. (Id.) Additionally, the SAC alleges, Defendant was negligent in “hiring, training, supervising, controlling and/or monitoring employees and agents responsible for the maintenance, inspections, repairing, supervision, control, and operations.” (Id.)

As argued by Defendant, Plaintiff cannot assert a separate negligence claim on this basis. (Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 825 (“Their argument is misplaced, however, for the reason that public entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but instead by the specific provisions set forth in sections 830-835.4.”).) Defendant’s alleged negligence in connection with the exposed metal wire is a claim for the creation of a dangerous condition on public property. Notably, Plaintiff failed to address Van Kempen in her opposition. The separate negligence claim is duplicative and the demurrer is properly sustained. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 (“But stating them in two causes of action, as real party has done, is merely duplicative pleading which adds nothing to the complaint by way of fact or theory. For that reason, the demurrer should have been sustained as to this cause of action.”).)

The demurrer to the general negligence cause of action is sustained without leave to amend since Plaintiff has not addressed this issue or offered a cure for this problem. The Court also finds that Plaintiff will be unable to do so.

Conclusion

Defendant City of San Dimas’s demurrer is OVERRULED as to Plaintiff’s first cause of action for premises liability and SUSTAINED as to Plaintiff’s second cause of action for general negligence.

Since Plaintiff only references Government Code Section 835 at the end of the second cause of action, Plaintiff is ordered to file a Third Amended Complaint within 15 days of the date of this order clarifying that the first cause of action comes under Government Code Section 835 so as to avoid confusion at a later stage in these proceedings. All pertinent factual allegations from the second cause of action should be moved to the premises liability cause of action.

Defendant is ordered to file an answer or other responsive pleading to the Third Amended Complaint within 15 days of it being filed.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days of the date of this order.

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Case Number: *******0832 Hearing Date: November 23, 2021 Dept: 30

GAVNI TERZYAN vs CITY OF SAN DIMASCourt Order Re: Continuance of the November 23, 2022 Hearing on Defendant's Demurrer to Plaintiff's Second Amended Complaint to January 11, 2022 at 1:30 p.m.; On the Court's own motion, the Hearing on Demurrer - without Motion to Strike - Defendant's Demurrer to the First and Second Causes of Action in Plaintiff's Second Amended Complaint scheduled for 11/23/2021 is continued to 01/11/2022 at 01:30 PM in Department 30 at Spring Street Courthouse. Counsel for Defendant/Moving Party is ordered to give notice and to file proof of service of said notice. "

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Case Number: *******0832 Hearing Date: September 1, 2021 Dept: 32

PLEASE NOTE: Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

DEPARTMENT	32
HEARING DATE	September 1, 2021
CASE NUMBER	*******0832
MOTION	Leave to File Second Amended Complaint
MOVING PARTY	Plaintiff Agavni Terzyan
OPPOSING PARTY	None

MOTION

Plaintiff Agavni Terzyan (“Plaintiff”) moves for an order granting leave to file a second amended complaint (“SAC”). Plaintiff asserts that the SAC removes a duplicative cause of action for negligence and adds no new parties, causes of action, or factual allegations. Defendant City of San Dimas has not filed an opposition to the motion.

ANALYSIS

Amendments to Pleadings: General Provisions

Under Code of Civil Procedure section 473, subdivision (a)(1), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

To wit, without notice to the other party the Court has wide discretion to allow either party (i) to add or strike the name of a party or (ii) to correct a mistake in the name of a party or a mistake in any other respect “in furtherance of justice” and “on any terms as may be proper.” (See Code Civ. Proc., ; 473, subd. (a)(1); see also Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.) Alternatively, after notice to the other party, the Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.” (See Code Civ. Proc., ; 473, subd. (a)(1). Similarly, Code of Civil Procedure section 576 states “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is liberally granted. (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 [this has been an established policy in California since 1901] (citing Frost v. Whitter (1901) 132 Cal. 421, 424; Thomas v. Bruza (1957) 151 Cal.App.2d 150, 155).) The Court of Appeal in Morgan v. Superior Court held “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.) Moreover, “it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].)

“The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 6:636 (hereafter Weil & Brown).) Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.) However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. (Id. at ¶ 6:653 (citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565).) “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. . . . But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

“Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’” (Weil & Brown, supra, at ¶ 6:663, citation omitted.) For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

California Rules of Court, rule 3.1324: Procedural Requirements

Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

“(1) the effect of the amendment;

(2) why the amendment is necessary and proper;

(3) when the facts giving rise to the amended allegations were discovered; and

(4) the reasons why the request for amendment was not made earlier.”

Here, as set forth in the declaration of counsel for Plaintiff, Alik Ekmekchyan (“Counsel”), Plaintiff filed a first amended complaint on November 19, 2020, alleging three causes of action for (1) premises liability, (2) negligence, and (3) negligence/statutory liability against City. (Declaration of Alik Ekmekchyan, ¶ 6.) Counsel states the parties met and conferred on March 30, 2021, in anticipation of City filing a demurrer to the first amended complaint. (Declaration of Alik Ekmekchyan, ¶ 8.) Plaintiff agreed to file and serve a second amended complaint to address City’s objections to the duplicative causes of action in the first amended complaint. Plaintiff has granted City an open extension to respond to the first amended complaint pending Plaintiff’s motion for leave to file the second amended complaint. (Declaration of Alik Ekmekchyan, ¶ 12.) Counsel states the SAC is necessary and proper as it removes duplicative causes of action for negligence, and adds no new parties, causes of action, or factual allegations. (Declaration of Alik Ekmekchyan, ¶ 13.)

CONCLUSION AND ORDER

Accordingly, the Court finds that Plaintiff has met her burden in establishing a factual and legal basis for leave to file the SAC, and grants Plaintiff’s motion for leave. The Court further orders Plaintiff to file and serve the proposed SAC within 20 days of the hearing on the motion.

Plaintiff shall provide notice of the Court’s orders and file a proof of service of such.

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