G Eric Kuskey vs Salvatore A Garofalo et al

HOUSING COMPLEX, giving rise to reasonable anticipation of violence against the other tenants of the HOUSING COMPLEX, including Plaintiff." (Compl., P. 92.)

"Defendants SURF DEVELOPMENT, ESPINOSA, DOES 21-30 and DOES 51-60, inclusive, and each of them, so negligently owned, operated, inspected, managed, supervised, maintained and/or controlled the HOUSING COMPLEX and breached their duty of care to Plaintiff, as follows (including but not limited to): "a. Failing to evict a known dangerous and violent tenant from the HOUSING COMPLEX, even after having reasonable notice that said tenant was threatening the safety of the other tenants, including Plaintiff. "b.

Failing to adequately protect Plaintiff and others from unwarranted and unjustified violence and potentially deadly assault, even after having reasonable notice that such criminal/violent acts were foreseeable. "c. Failing to adequately provide security for the protection of the tenants of the HOUSING COMPLEX, including Plaintiff. "d. Failing to warn Plaintiff and other tenants that they might be victims of an assault by a fellow tenant of the HOUSING COMPLEX. "e. Failing to properly own, manage, supervise, monitor, maintain, control the HOUSING COMPLEX in a careful, safe, protective and lawful manner. "f.

Failing to keep the HOUSING COMPLEX in a safe and habitable condition." (Compl., P. 93.)

Housing Authority and Espinosa argue that Espinoza is immune from liability pursuant to Government Code section 820.2, which provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."

Plaintiff argues that Government Code section 820.2 immunity does not apply because Espinoza's actions, or inactions, were ministerial rather than discretionary. " '[T]o be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place.' " [Citation.] By contrast, " 'lower-level, or ' "ministerial," ' decisions that merely implement a basic policy already formulated' " are not entitled to immunity. [Citation.]" (Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 341.)

The main deficiency in Housing Authority and Espinosa's arguments is that rather than argue that there are defects on the face of the complaint that preclude the cause of action, they argue the merits of their case. A motion for judgment on the pleadings is not the proper legal procedure for challenging the evidence, or for arguing that plaintiff will not be able to prove their case. What is important is what is alleged. The complaint does not disclose, one way or another, whether Espinoza's actions, or inactions, should be characterized as discretionary or ministerial. The allegations in the complaint set forth all elements of a claim of negligence against Espinoza, including a duty to plaintiff as the "onsite property manager." As such, the motion for judgment on the pleadings, with respect to the fifth cause of action, will be denied.