Demurrer CLM

Cal. Super. - 2nd Dist.October 29, 2014

123 23561 378401583 562400020067960 113454 21905 89 SUPERIOR COURT OF CALIFORNIA, MINUTE ORDER TIME: 08:20:00 AM JUDICIAL OFFICER PRESIDING: Rocky Baio COUNTY OF VENTURA VENTURA DATE: 03/19/2015 DEPT: 43 CLERK: Yvette Madrigal REPORTER/ERM: Denise Potts CASE NO: 56-2014-00459550-CU-PO-VTA CASE TITLE: Minton vs. City of Thousand Oaks CASE CATEGORY: Civil - Unlimited CASE TYPE: PI/PD/WD - Other EVENT TYPE: Demurrer (CLM) to first amended complaint in behalf of County of Ventura MOVING PARTY: County of Ventura CAUSAL DOCUMENT/DATE FILED: Demurrer, 01/14/2015 STOLO APPEARANCES STOLO CLAY ROBBINS, III, counsel, present for Plaintiff(s). Thomas W. Temple, counsel, present for Defendant(s). Stolo At 9:05 a.m., court convenes in this matter with all parties present as previously indicated. Counsel have received and read the court's written tentative ruling. Matter submitted to the Court with argument. The Court finds/orders: The Court's tentative is adopted as the Court's ruling. Court's Ruling: Demurrer is sustained with leave to amend. First Amended Complaint to be filed by April 3, 2015. Reason: Generally, the complaint alleges that P was injured while running on a public sidewalk adjacent to Sunset Hills Blvd. in the County of Ventura. The complaint alleges that the D owns or maintains the street and adjoining areas, that D's employees negligently failed to maintain the area, and that P had filed appropriate claim with D prior to filing this lawsuit. Notwithstanding these allegations, the law is clear that: "[I]n California all government tort liability is dependent on the existence of an authorizing statute or 'enactment,' and 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. Duty cannot be alleged simply by stating 'defendant had a duty under the law'; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. Since the duty of a governmental agency can only be created by statute or MINUTE ORDER DATE: 03/19/2015 Page 1 DEPT: 43 CASE TITLE: Minton vs. City of Thousand Oaks CASE NO: 56-2014-00459550-CU-PO-VTA 'enactment,' the statute or 'enactment' claimed to establish the duty must at the very least be identified." Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802. D is correct that the complaint does not specify which sections of the government code apply. Since D is apparently insecure about this and wants the code section cited in the complaint, the demurrer must be sustained with leave to amend. Irrespective of the above tentative ruling, the parties have spent a great deal of time in their pleadings discussing the broader issue of whether or not the D actually owns or has any responsibility over the area where the incident occurred. For the moment, that question is now moot. However, it is the court's understanding that in ruling on demurrers, the court only looks at the allegations of the complaint and matters that can be judicially noticed. As a general rule, the court does not make determinations of fact at the demurrer stage. It its moving papers, the D is asking the court to make determinations of fact, which seems to the court to be inappropriate and premature. Lastly, in respect to the issue of judicial notice, as a general notion, judicial notice is taken of matters that there can be no reasonable dispute about, for instance, as in this case, the existence of certain government documents. However, the truth of the matters dealt with in those documents, especially when disputed, are not judicially noticed. There may be some exceptions to the use of statements within a document that is judicially noticed at the time of trial or as part of a MSJ, but not at the demurrer stage. Notice to be given by Mr. Robbins. STOLO MINUTE ORDER DATE: 03/19/2015 Page 2 DEPT: 43