 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Guerrero v. City of Los Angeles11/18/2002
orp. (1987) 193 Cal.App.3d 444, 451, fourth italics added.)
2. Standard of appellate review.
"When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citations.]" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Our review of an order sustaining a demurrer without leave to amend is de novo. (Ibid.)
Here, Guerrero does not contend the complaint is well pled. Rather, he contends the trial court abused its discretion in denying him leave to amend. The burden is on Guerrero to demonstrate the trial court abused its discretion in denying leave to amend. Guerrero must show in what manner 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; Zelig, supra, 27 Cal.4th at p. 1126.)
3. The requirement of pleading the existence of a statutory duty.
Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792 (review den.), on which the trial court relied, sets forth certain fundamental principles. " n California all government tort liability is dependent on the existence of an authorizing statute or `enactment' (Gov. Code, ยงยง 815, subd. (a), 815.6, . . . ), 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. (Susman v. City of Los Angeles [(1969)] 269 Cal.App.2d 803, 809.) 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. [Citations.] Since the duty of a governmental agency can only be created by statute or `enactment,' the statute or `enactment' claimed to establish the duty must at the very least be identified." (Searcy, supra, 177 Cal.App.3d at p. 802, italics added.)
4. No basis shown for imposition of liability against the City.
Government Code section 815.6 provides: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury , the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." (Italics added.)
Guerrero's opening brief makes no reference to a predicate enactment which imposed a mandatory duty upon the City to impound the dogs which bit him. However, his trial brief cited Penal Code section 597.1 and Los Angeles Municipal Code (LAMC) section 53.34.2(a). Guerrero's reliance on these provisions is unavailing.
a. No mandatory duty under Penal Code section 597.1 because that statute involves the exercise of discretion.
Penal Code section 597.1 provides in relevant part: "(a) When the officer has reasonable grounds to believe that very prompt action is required to protect the health or safety of the animal or the health or safety of others, the officer shall immediately seize the animal . . . ." (Italics added.) Thus, Penal Code section 597.1, in requiring an officer to seize an animal, requires the officer to exercise discretion in dete
Page 1 2 3 4 5 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|