Demurrer to complaint
7. CU0001796 Sonya Sokolow v. Environmental Health Director Amy Irani
Defendant County of Nevada’s unopposed demurrer to complaint for property damage is sustained without leave to amend.
Legal Standard
On demurrer, a court's function is limited to testing the legal sufficiency of the complaint. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 883. A court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.
Contentions, deductions and conclusions of law, however, are not presumed as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967. A plaintiff is not required to plead evidentiary facts supporting the allegation of ultimate facts; the pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. A demurrer is not the appropriate procedure for determining the truth of disputed facts. Fremont Indemnity Co., 148 Cal.App.4th at 113-114.
“If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted.” Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 6.
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Analysis
Unopposed Motion
Plaintiff has filed no opposition to the motion; as such, the Court deems Plaintiff’s failure to oppose the motion as consent to the granting of the same. See Cal. Rules of Court, rule 8.54(c) (“failure to oppose a motion may be deemed a consent to the granting of the motion.”); see, e.g., Amato v. Downs (2022) 78 Cal.App.5th 435, 440, n.3 (unopposed motion can be granted on that basis, citing rule 8.54(c)).
Government Claims Act
Defendant argues the cause of action alleged is barred by Plaintiff’s failure to allege compliance or excuse with the Government Claims Act (“GCA”). The Court agrees.
Pursuant to the GCA, a complaint for money or damages against a public entity must be preceded by a proper administrative claim. Gov. Code § 905. “[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented ... until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board....” Gov. Code § 945.4. 5
At bar, the complaint seeks money or damages arising from property damages from a local public entity, but fails to allege Plaintiff presented a written claim to the County. Therefore, the demurrer is sustained on this ground.
Negligence
Defendant also argues the complaint fails to state facts sufficient to allege negligence against a public entity. The Court agrees.
“ ‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” ’ ” Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.
At bar, the complaint fails to identify a statute imposing a duty to monitor the neighboring property; it fails to sufficiently allege a breach of a duty because no duty has been alleged; it fails to specify the property damage alleged; and it fails to specify the damages alleged. Therefore, the demurrer is sustained on this ground.
Public Entity Liability
Defendant argues the complaint fails to identify any statute authorizing Plaintiff’s common law negligence claims against a public entity as required by Government Code section 815. The Court agrees.
“In order to recover plaintiffs have to show that there is some specific statutory mandate that was violated by the County, which violation was a proximate cause of the accident.” Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896-897. “Questions of statutory immunity do not become relevant until it has been determined that the defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity. However, a defendant may not be held liable for the breach of a duty if such an immunity in fact exists.” Id. at 896.
At bar, the complaint fails to allege any specific mandatory duty imposed by an enactment, such as “a constitutional provision, statute, charter provision, ordinance or regulation.” Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1091-1092. Therefore, the demurrer is sustained on this basis.
Governmental Immunities
Defendant further argues the complaint is barred by multiple governmental immunities, because any alleged failures to inspect, investigate, and enforce a conditional use permit are the types of inspection and enforcement failures protected by governmental immunities. The Court again agrees.
“A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” Gov. Code § 818.2. “A public entity is not liable for an injury 6
caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.” Gov. Code § 818.4. “A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property...for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.” Gov. Code § 818.6.
Thus, the demurrer is sustained on this ground.
Leave to Amend
The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.” Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290. To satisfy that burden, a plaintiff “must show in what manner [s]he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Plaintiff did not file an opposition to Defendants’ demurrer or other papers with the Court to identify the facts that she could allege to cure the defects with his complaint. Plaintiff has not met her burden to articulate how she could amend the complaint to render it sufficient. The Court sustains the demurrer without leave to amend.
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