Eduviges Estrada v. City of Santa Barbara

Case Number

23CV00077

Case Type

Hearing Date / Time

Wed, 09/20/2023 - 10:00

Nature of Proceedings

Demurrer to Second Amended Complaint

Tentative Ruling

For Plaintiff Eduviges Estrada: John B. Richards                      

For Defendant City of Santa Barbara: Sarah J. Knecht, Tom R. Shapiro, Robin L.

Lewis, Office of the City Attorney

RULING

For the reasons set forth herein, the demurrer of Defendant City of Santa Barbara is sustained without leave to amend as to the second and third causes of action of Plaintiff’s second amended complaint. The demurrer of Defendant City of Santa Barbara is overruled as to the fifth cause of action of Plaintiff’s second amended complaint. Defendant shall file and serve its answer to Plaintiff’s second amended complaint on or before October 3, 2023.

 

Background

On January 9, 2023, Plaintiff Eduviges Estrada (Estrada) filed her original complaint in this action asserting three causes of action against Defendant the City of Santa Barbara (the City): general negligence, premises liability, and negligence per se. On February 16, 2023, the City filed its demurrer to the causes of action for general negligence and for negligence per se. Estrada’s brief opposition conceded that further pleading was appropriate. On March 22, 2023, the Court sustained the City’s demurrer with leave to amend.

On April 7, 2023, Estrada filed her first amended complaint (the FAC). The FAC asserts five causes of action against the City using a Judicial Council form complaint: (1) general negligence; (2) negligence per se (ADA); (3) negligence per se (Gov. Code, § 54.1); (4) premises liability; and (5) negligence per se (Gov. Code, § 835). On May 9, 2023, the City filed a demurrer to the first, second, and third causes of action alleged in the FAC. In her opposition to the City’s demurrer, Estrada agreed to dismiss the first cause of action and opposed the demurrer to the second and third causes of action. On June 21, 2023, the Court sustained the City’s demurrer without leave to amend as to the first cause of action and with leave to amend as to the second and third causes of action alleged in the FAC.

On July 6, 2023, Estrada filed her second amended complaint (SAC). Using a Judicial Council form complaint, the SAC asserts claims against the City titled as a second cause of action for negligence per se (Title II of the Americans With Disabilities Act), a third cause of action for negligence per se (Gov. Code, § 54.1), a fourth cause of action for premises liability; and a fifth cause of action for negligence per se (Gov. Code, § 835). Though the second cause of action “incorporates herein by reference” the allegations of a first cause of action, there is no first cause of action included or alleged in the SAC.

As alleged in the SAC: (Note: The allegations below appear as unnumbered paragraphs in the second, third, and fifth causes of action on attachment 1 [pp. 4, 5, & 7] of the SAC.)

On March 29, 2022, Estrada was walking in a crosswalk at the intersection of Canon Perdido and San Andres streets (Crosswalk) in the City of Santa Barbara (also referred to as the City). At the time Estrada, like other residents and visitors, expected that designated walkways in the City would be safe to walk on, particularly those walkways designated as crosswalks, and would be free from dangerous conditions, including long extended uplifts in the walking surfaces of designated crosswalks. Also at the time, Estrada suffered from numerous disabilities such that she was disabled within the meaning of the Americans with Disabilities Act (the ADA), Government Code section 54.1 and as such was a member of the statute’s protected class. The ADA was enacted for safety purposes, including protecting disabled Americans from tripping and falling by requiring, among other things, that walking surfaces designated for use by disabled Americans be free from uplifts of greater than 1/4 inch.

Defendant City had a duty to properly, timely, and regularly inspect, maintain, and repair the walkways and crosswalks located within the City so that walkways and crosswalks would be safe for residents and visitors to walk on. Defendant’s duty is statutory and imposed by Government Code section 835. Defendant City breached its duty of care by failing to properly, timely, and regularly inspect, maintain and repair the Crosswalk by allowing a dangerous condition to exist in the Crosswalk, including a long (approximately eight feet), extended uplift (greater than one inch) in the walking surface in the Crosswalk. As a result, the walking surface in the Crosswalk was not safe to walk on which in turn created a foreseeable risk of injury to residents and visitors alike. Moreover, the City had actual or constructive notice of the dangerous condition in sufficient time to have taken measures to protect against it. As a result of the dangerous condition in the Crosswalk, Estrada tripped and fell to the ground suffering personal injury.

On August 11, 2023, the City filed a demurrer to the second, third, and fifth causes of action alleged in the SAC. Estrada opposes the demurrer.

Analysis

“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

(1) The City’s Demurrer to the Second and Third Causes of Action Alleged in the SAC

The second and third causes of action are titled as claims for negligence per se. In its Minute Order dated June 21, 2023 (the Minute Order), the Court found that, in the FAC, Estrada did not allege a violation of Americans with Disabilities Act (42 U.S.C. § 12101 et seq. or ADA) and so had similarly not stated a cause of action under Civil Code section 54.1 on that basis alone. (See Civ. Code, § 54.1, subd. (d).) For the same reasons, the Court found that Estrada had not stated, and not provided sufficiently particular allegation of, a cause of action under the Disabled Persons Act based upon allegations of conditions of public property dangerous to everyone.

The second and third causes of action include the same allegations as those asserted in the FAC. The only additional allegations asserted in the second and third causes of action alleged in the SAC, and Estrada concedes as much, are the following: “Defendant’s conduct constituted a violation of Title II of the ADA because: 1) Plaintiff is a qualified individual with a disability; 2) Plaintiff was either excluded from participation in, or denied the benefits of, Defendant’s services, programs or activities, or was otherwise discriminated against by Defendant; and 3) this exclusion, denial, or discrimination was by reason of Plaintiff’s disability. Moreover, Defendant’s deliberate indifference to, and failure to comply with, the ADA requirements for public walking surfaces caused the dangerous condition to exist and in turn caused injury to Plaintiff.” (Complaint, pp. 4 & 5 [fourth paragraph].) The third cause of action also includes the following allegation: “The same conduct also constitutes a violation of Gov. Code Sec. 54.1 because said condition of public property was dangerous to all persons.” (Id. at p. 5 [fourth paragraph].)

Because the new allegations of the second and third causes of action as described above merely recite the elements of a cause of action for violation of Title II of the ADA, they constitute conclusions of law. Estrada asserts that she has included verbatim the pleading requirements set forth in the Minute Order, “statutory causes of action must be pleaded with particularity ….” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) In the SAC, Estrada has failed to allege specific facts sufficient to state a claim under the ADA for all reasons more fully discussed in the Minute Order. Accordingly, for the same reasons discussed in the Minute Order, these additional allegations are insufficient, and insufficiently specific, to state a claim under the ADA.

Estrada’s third cause of action is similarly entitled as a claim for negligence per se. Notwithstanding the ambiguity created by Estrada’s incorrect reference to the Government Code, the third cause of action also purports to state a claim under the Disabled Persons Act (DPA), and, in particular, under Civil Code section 54.1. For the same reasons discussed in the Minute Order and above, because Estrada has not stated a violation of the ADA, she has similarly not stated a cause of action under Civil Code section 54.1. (See Civ. Code, § 54.1, subd. (d).) For the same reasons, Estrada has not stated, and not provided sufficiently particular allegation of, a cause of action under the DPA based upon allegations of conditions of public property dangerous to everyone. Therefore, as the second and third causes of action do not state claims for negligence per se against the City for all reasons discussed above and in the Minute Order, the Court will sustain the City’s demurrer to the second and third causes of action alleged in the SAC.

It is Estrada’s burden to demonstrate a reasonable possibility that the defects in the second and third causes of action alleged in the SAC can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318.) To meet this burden, a Plaintiff “‘must show in what manner [s]he can amend [her] complaint and how that amendment will change the legal effect of his pleading.’ [Citation.] … Plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, Plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary. [Citation.] [¶] … [The] Court will [not] rewrite a complaint.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.) If the Plaintiff fails to meet its burden to offer allegations to support the possibility of amendment and legal authority showing the viability of the proposed amendment, the Court may sustain the demurrer without leave to amend. (Id. at p. 44.)

Estrada requests leave to amend. However, Estrada offers no factual or legal argument showing the manner in which she can amend these causes of action or how any amendment will change their legal effect. In addition, the SAC demonstrates on its fact that there is no reasonable possibility that the defects can be cured by amendments based on the nature of the claims alleged by Estrada. As Estrada has not met her burden to demonstrate a reasonable probability that the second and third causes of action may be further amended, the Court will deny Estrada’s barebones request for leave to amend.

(2) The City’s Demurrer to the Fifth Cause of Action Alleged in the SAC

The City also demurs to the fifth cause of action alleged in the SAC. The fifth cause of action is the same cause of action alleged in the FAC. In its demurrer to the FAC, the City did not challenge the same fifth cause of action which alleges that, pursuant to Government Code section 835, the City is liable to Estrada based on a dangerous condition of City property. (Compl. at p. 7 [third paragraph].)

“A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” (Code Civ. Proc., § 430.41, subd. (b).) The City could have included as grounds for its previous demurrer to the FAC a challenge to the same fifth cause of action. As it did not, the City cannot now demur to the fifth cause of action alleged in the SAC.

In addition, the title of the fifth cause of action is not dispositive. “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.) The doctrine of negligence per se is within the scope of pleadings that allege general negligence, as proof of a breach of duty is not limited to common law standards of care.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210–1211.) Because a claim for negligence per se is merely an alternative count of a cause of action for general negligence, as a pleading matter, a count for negligence per se is subject to the same analysis as a cause of action for general negligence. Though the City argues that alleging a negligence per se violation based on Government Code section 835 is “disingenuous and redundant”, redundancy “is not a cause for demurrer.” (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 303.)

As further discussed in the Minute Order and as City notes in its reply to Estrada’s opposition to the demurrer, Estrada has pleaded a claim for dangerous condition of public property. Therefore, the Court will overrule City’s demurrer to the fifth cause of action.