HELEN SHOOSHANI VS CITY OF SANTA MONICA, ET AL.

Tentative Rulings

Case Number: *******1675 Hearing Date: August 16, 2023 Dept: M

CASE NAME: Shooshani, v. City of Santa Monica, et al.

CASE NO.: *******1675

MOTION: Demurrer to the Complaint

HEARING DATE: 8/16/2023

Legal Standard

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. 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. (CCP 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

A special demurrer for uncertainty 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. (CCP 430.10(f); 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.)

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. (CCP 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. (CCP 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”].)

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

MEET AND CONFER

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP 430.41, 435.5.) Defendant’s counsel made reasonable efforts to meet and confer via telephone. (Ford Decl., 3-4.)

Analysis

The instant demurrer presents a dispute over the interpretation of Santa Monica Municipal Code (“SMMC”) section 713. SMMC section 713 provides for the powers and duties of the Street Superintendent as follows:

The Street Superintendent shall have the general care and supervision of all City streets, sewers and drains and shall have power to and be required to:

(a) Make frequent inspection of all streets, sewers and drains of the City;

(b) Receive and investigate all complaints as to their condition and have charge of the enforcement of all laws and ordinances pertaining thereto; and

(c) Inspect all streets, sewers and drains while the same are in the course of construction; inspect, approve or reject all materials used in such construction, whether done by contract or otherwise and, pending investigations when necessary, stop all work thereon.

(SMMC 713.)

The Complaint alleges on July 21, 2022, at approximately 8:00 p.m., Plaintiff was walking near the Subject Premises, 1318 A Montana Ave, Santa Monica, CA 90403. (Compl., 10.) Plaintiff tripped and fell on the allegedly uneven, ill maintained, ill repaired uplifted concrete sidewalk that was raised a few inches due to an adjacent tree’s roots and had been patched with asphalt some time prior to July 21, 2022 (the “Subject Uplifting”). (Compl., 11.) The Subject Uplifting created a dangerous condition where it was reasonably foreseeable that someone, such as Plaintiff, would trip and fall over this dangerous condition and sustain injuries of the kind Plaintiff sustained. (Id.) In the second cause of action for negligence, the complaint alleges that the City negligently failed to abide by a mandatory duty under SMMC section 713, and was negligent per se.

The City contends that SMMC section 713 does not provide for any duty under the pled facts. The City argues that the allegations arise from the condition of the sidewalk. The City notes that section 713 only makes reference to inspection of streets, sewers and drains without reference to sidewalks. The City concludes that since this section does not create any duty to maintain the subject sidewalk, the cause of action for negligence based on this duty fails. Indeed, on the face of section 713, the statute does not create a duty to inspect sidewalks, but only streets, sewers and drains. As noted by the City, SMMC expressly defines and refers to sidewalks throughout the Code, but not in section 713. Thus, the terms streets, sewers or drains contemplated in section 713 could not reasonably be interpreted as to include sidewalks. The allegations demonstrate that the City failed in its alleged duty to maintain the sidewalk and/or tree roots as public property. (Compl., 14, 36, 46.) The Complaint does not allege that Defendants failed in their duty to inspect streets, sewers and drains, or any causal nexus between that duty and Plaintiff’s injuries. Thus, the cited section is not applicable to the pleadings.

Plaintiff also contends that the adjacent tree and its roots causing the Subject Uplift “may be located on the street” which would imply a duty to inspect pursuant to section 713. However, there is no allegation pertaining to this fact. Plaintiff does not provide how the City’s duty to maintain the streets would be implicated by the tree roots. The complaint alleges that the tree was on the sidewalk or adjacent property. The tree roots then allegedly grew under the sidewalk, causing the alleged dangerous condition. Even if the tree roots eventually spread under the street, this fact would still not show any nexus between the City’s duty to maintain streets, etc., and the dangerous condition of the sidewalk. The facts remain that the dangerous condition alleged is the uplifted concrete slab sidewalk. Plaintiff needs to proffer additional facts showing a causal nexus between the City’s failure to maintain the streets and Plaintiff’s injuries caused by the uplifted sidewalk before leave to amend would be granted.

The Court also observes that this cause of action is redundant with the pled other causes. Accordingly, the demurrer is SUSTAINED as to the second cause of action for negligence without leave to amend.