The opinion
Filed 5/21/25 Ndizeye v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DANIEL NDIZEYE, D084061
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2023-
00034911-CU-CR-CTL)
CITY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Carolyn M. Caietti, Judge. Affirmed.
Daniel Ndizeye, in pro. per., for Plaintiff and Appellant.
Mara W. Elliott, City Attorney, M. Travis Phelps, Assistant City
Attorney, and Kelly L. McGeehan, Deputy City Attorney, for Defendant and
Respondent.
Daniel Ndizeye appeals the judgment dismissing his action against the
City of San Diego (the City) for failing adequately to maintain the street and
sidewalks in his neighborhood. The City demurred to the operative
complaint for failure to state a cause of action, and the trial court sustained
the demurrer without leave to amend. We affirm.
I.
BACKGROUND
On June 22, 2023, the City received from Ndizeye a claim on its form
for claims under the Government Claims Act (the Act; Gov. Code, § 810 et
seq.). He listed “07/2007” as the “Date of Incident” and an address in the 700
block of 51st Street as the “Location of Incident or Accident.” As the “Basis of
Claim,” Ndizeye wrote: “Road width [n]on-compliance, sidewalk obstruction,
emotional damage, violation of state and local laws, speeding vehicles, road
need of speed ramp[,] obstruction of emergency vehicles, fatal consequences of
neglected road widths - non-compliant with California fire code, dangerous
road entry, and exit.” When asked to “[s]tate why [he] believe[d] the City is
responsible for the alleged injury, property damage, or loss,” Ndizeye
responded: “City negligence in maintaining road safety and non-compliance
with state and local regulations demonstrate its accountability for these
infrastructure issues. City’s neglect of duty led to unsafe roads and side [sic]
sidewalks, violating standards.” Ndizeye described the “[a]lleged [i]njury,
[p]roperty [d]amage, or [l]oss” as follows: “Potential accidents risk due to
excessive vehicle speed. Public safety risks from illegal activities in secluded
cul-de-sac. Impeded emergency services access due to narrow roads.
Emotional distress from perceived municipal neglect and safety concerns.
Impeded pedestrian mobility due to sidewalk obstruction.” Ndizeye did not
itemize any damages, but did check a box on the form stating they exceeded
$25,000. He signed the form as a “resident of the neighborhood” and dated it
June 20, 2023.
2
After expiration of the 45-day period for the City to act on the claim
(Gov. Code, § 911.6), on August 14, 2023, Ndizeye, purporting to act on behalf
of himself and others similarly situated, filed a complaint against the City “to
seek accountability . . . for its prolonged negligence and discriminatory
practices pertaining to the upkeep and safety of the roads and sidewalks
within [his] neighborhood.” Ndizeye sought to recover damages, declaratory
relief, and injunctive relief from the City on negligence and other theories.
He amended the complaint on August 31, 2023, and sought the same relief on
the same theories.
The City demurred to the first amended complaint on the ground it
failed to state facts sufficient to constitute a cause of action. (Code Civ. Proc.,
§ 430.10, subd. (e).) The City argued the action was barred by the statute of
limitations; the action was not a proper class action, in part because no claim
under the Act had been submitted to the City on behalf of the class; the City
is not liable for negligence as a matter of law; and the first amended
complaint failed to state a cause of action for dangerous condition of public
property, declaratory relief, or injunctive relief. The City asked the trial
court to sustain the demurrer and to dismiss the first amended complaint.
Hearing on the demurrer was set for January 26, 2024.
On January 3, 2024, before opposition to the demurrer was due,
Ndizeye filed a second amended complaint. (Code Civ. Proc., §§ 472, subd. (a)
[complaint may be amended before opposition to demurrer is due], 1005,
subd. (b) [opposition is due nine court days before hearing].) Again
purporting to act on behalf of himself and others similarly situated, he
announced “a call to action for [the City] to rectify its ongoing negligence and
uphold its responsibility to maintain public infrastructure.”
3
In the second amended complaint, Ndizeye did not mention the claim
he had submitted to the City in June 2023. He leveled many accusations
against the City concerning its design and maintenance of the street and
sidewalks in his neighborhood, including:
• The “conspicuously narrow width” of the street (20 feet) “significantly
elevate[s] the inherent safety risks associated with vehicular mobility”
when vehicles, which “act as visual barriers,” are parked on the street.
“The limited width, compounded by parked vehicles and bidirectional
traffic, [also] hampers emergency vehicle access, and poses significant
risks to the residents and the community at large.”
• The surface of the street “is considerably compromised, marred by a
significant number of potholes and fissures that disrupt the road’s
continuity and compromise vehicular stability and maneuverability.”
• A “dangerous condition of public property” exists at the stop sign at the
intersection of 51st Street and Hilltop Drive, because “vehicles parked
in close proximity to this critical junction” obstruct motorists’
visibility.1
• The City’s “glaring delay” in painting curbs red until 2022 “lays bare a
troubling pattern of oversight, disregard, and administrative
negligence,” and “reveals an unsettling neglect for public safety and a
marked deviation from standard traffic safety practices.”
• The City’s “flagrant disregard for speed limit regulation” by failing to
install “speed bumps, speed signs, or similar traffic calming devices”
has “transformed this residential area into a high-risk zone” where
“[d]rivers are routinely observed operating their vehicles at high
speeds.”
• The sidewalks are in a “disconcerting state of disrepair” due to the
City’s “lackadaisical approach to public safety.” Erection of utility poles
“inconveniently in the middle of the sidewalks” and “[u]nchecked
growth of vegetation present “a significant hazard” to sidewalk users.
“[C]racks, uneven patches, and potential tripping hazards . . . represent
1 Ndizeye alleged that a collision near the intersection “led to substantial
vehicular damage and inflicted injuries upon both drivers.” He did not
identify either driver or the date of the collision.
4
a significant safety threat to all pedestrians but especially to those with
mobility challenges, the elderly, disabled, and children.”
• A “pattern” of “systemic bias and discriminatory treatment” toward
“individuals of color and those belonging to lower-income groups” who
live in Ndizeye’s neighborhood emerges when the “hazardous conditions
of [their] roads and sidewalks” are contrasted with “the well-
maintained and spacious roads observed in predominantly white
neighborhoods.”
In a section of the second amended complaint labeled “causes of action,”
Ndizeye summarized his complaints about the street and sidewalks in his
neighborhood, and alleged the City’s negligence, neglect, and discrimination
caused residents emotional distress, physical harm (including tripping on
sidewalks and colliding with utility poles), and property damage (including
damage to vehicles from potholes, damage to bicycles from uneven sidewalks,
and property depreciation). As remedies for these alleged injuries, Ndizeye
prayed for the following relief:
• A declaration that the City “has acted negligently and in a
discriminatory manner, infringing upon the rights and safety of the
Plaintiffs in violation of multiple federal, state, and local legislations.”
• $100 million in damages for “physical injuries, emotional distress,
property damage, and other consequential losses that the Plaintiffs
have suffered as a direct result of [the City’s] negligence and
discriminatory practices.”
• An injunction that the City: (1) “immediately and permanently cease
all discriminatory and negligent practices and ensure full compliance
with all relevant laws, codes, and ordinances, regarding road and
sidewalk maintenance, curb painting, road width, and the provision of
adequate emergency access”; (2) enact necessary corrective measures,
such as rectifying all existing road and sidewalk conditions that pose
safety risks, implementing adequate speed control measures,
enhancing visibility at entry and exit points, and ensuring the
unhindered passage of emergency vehicles; (3) develop, in consultation
with Ndizeye and subject to court review and approval, “a
comprehensive plan outlining how [the City] intend[s] to address these
5
issues, including a provision for the ongoing maintenance of roadways,
sidewalks, and other relevant public infrastructure”; and (4) establish a
regular inspection protocol to ensure the continuous adherence to the
set standards of public safety.”
At the January 26, 2024 hearing on the City’s demurrer to the first
amended complaint, the trial court took the matter off calendar because the
filing of the second amended complaint rendered the demurrer moot. The
court calendared a hearing on a demurrer to the second amended complaint
for April 5, 2024.
The City demurred to the second amended complaint on the ground it
failed to state facts sufficient to constitute a cause of action. (Code Civ. Proc.,
§ 430.10, subd. (e).) The City argued Ndizeye had not complied with the
claim presentation requirement of the Act; the City is not liable for
negligence as a matter of law; the second amended complaint failed to state a
cause of action for dangerous condition of public property, declaratory relief,
or injunctive relief; the City is immune from liability for discretionary
decisions in the management of public property; and the action was not a
proper class action. The City asked the trial court to sustain the demurrer
without leave to amend. In support of the demurrer, the City submitted a
declaration from one of its attorneys stating she had a telephone call with
Ndizeye to discuss the deficiencies in the second amended complaint and they
were unable to resolve the matter. (Id., § 430.41, subd. (a).) The City also
submitted a request for judicial notice of the claim Ndizeye had submitted to
the City in June 2023.
Ndizeye opposed the demurrer. He argued the City had not met and
conferred with him in good faith before it filed the demurrer. Ndizeye also
argued the trial court’s January 26, 2024 order taking the demurrer to the
first amended complaint off calendar as moot judicially estopped the City
6
from demurring on the same grounds it had asserted in the prior demurrer.
Ndizeye complained the City was prejudicially delaying the case by filing
demurrers and urged the court to proceed to discovery.
The trial court was unable to hear arguments on the demurrer on April
5, 2024, and continued the hearing to April 22. On April 18, Ndizeye filed a
statement of disqualification against the judge assigned to the case on the
ground that a person aware of the way the judge had handled the case “might
reasonably entertain a doubt that the judge would be able to be impartial.”
(Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) On April 19, the court
continued the hearing on the demurrer to May 2. By order filed on April 25,
the court struck the statement on the grounds it was not properly served and
stated no legal grounds for disqualification. (Id., §§ 170.3, subd. (c)(1), 170.4,
subd. (b).) On the same day, Ndizeye filed a first amended statement of
disqualification. On May 1, the court ordered that statement stricken on the
grounds it was not properly served, was repetitive, and stated no legal
grounds for disqualification. (Id., §§ 170.3, subd. (c)(1), 170.4, subds. (b),
(c)(3).)
The trial court heard the demurrer to the second amended complaint on
May 2, 2024. The court granted the City’s request for judicial notice of the
claim Ndizeye submitted to the City in June 2023. It granted Ndizeye’s
request for judicial notice of the Government Claims Act, and denied another
request that sought judicial notice of photographs and other documents that
were not attached to the request, because it was unclear to the court what
Ndizeye wanted it to notice. The court found the City satisfied the meet-and-
confer requirement before filing the demurrer. It ruled the second amended
complaint failed to state a cause of action because it did not allege facts
showing or excusing compliance with the claim presentation requirement of
7
the Act, and the judicially noticed claim showed it was late. The court noted
Ndizeye impliedly conceded the validity of the grounds the City raised in the
demurrer by failing to respond to them on the merits. (Super. Ct. S.D.
County, Local Rules, rule 2.1.19(B).) It also noted he had neither requested
leave to amend nor articulated what facts he could add to cure the defects in
his pleading. The trial court therefore sustained the demurrer without leave
to amend. A judgment of dismissal followed.
II.
DISCUSSION
Ndizeye contends he stated causes of action for negligence and
dangerous condition of public property, and the trial court erroneously
sustained the City’s demurrer on grounds of noncompliance with the claim
presentation requirement of the Act and discretionary act immunity under
the Act. He also contends the court erred by striking his statements of
disqualification and by proceeding while the statements were pending; and
such errors, he says, deprived him of the right to amend the pleading and the
due process right to an impartial judge. Ndizeye asks us to reverse the order
sustaining the demurrer without leave to amend, to set aside all rulings the
trial court made while the disqualification statements were pending, and to
remand the matter for further proceedings before a different judge and with
directions to grant him leave to amend.2
2 In support of his opening brief, Ndizeye filed a request for judicial
notice of: (1) photographs of the street and sidewalks in his neighborhood
and in another neighborhood; (2) unauthenticated copies of reports and an e-
mail to the City about alleged defects in the street and sidewalks; (3) a letter
from the City acknowledging receipt of Ndizeye’s June 2023 claim; (4) an
unauthenticated copy of a petition demanding repairs; and (5) various
federal, state, and local statutes, regulations, ordinances, and guidelines. We
deny the request. The documents in category Nos. 1, 2, and 4 are not subject
8
A. Order Sustaining Demurrer Without Leave to Amend
We first address the trial court’s ruling on the City’s demurrer. “ ‘ “Our
standard of review is de novo, i.e., we exercise our independent judgment
about whether the complaint states a cause of action as a matter of law.” ’
[Citation.] In reviewing the complaint, ‘we must assume the truth of all facts
properly pleaded by the plaintiff[ ], as well as those that are judicially
noticeable.’ [Citation.] We may affirm on any basis stated in the demurrer,
regardless of the ground on which the trial court based its ruling.”
(Krolikowski v. San Diego City Employees’ Retirement System (2018)
24 Cal.App.5th 537, 549; accord, Hacala v. Bird Rides, Inc. (2023)
90 Cal.App.5th 292, 304.) We review the denial of leave to amend when a
demurrer is sustained for abuse of discretion. (Greenwood v. City of Los
Angeles (2023) 89 Cal.App.5th 851, 857.) Such an abuse occurs if there is a
reasonable possibility the defect in the pleading can be cured by amendment.
(K.M. v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th 717, 751.)
“Plaintiff 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.) The burden of proving a reasonable
possibility of curing the defect by amendment “is squarely on the plaintiff.”
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
One ground the City raised in its demurrer was Ndizeye’s
noncompliance with the claim presentation requirement of the Act. When a
to judicial notice. (In re Gary F. (2014) 226 Cal.App.4th 1076, 1079, fn. 2
[photographs]; LaChance v. Valverde (2012) 207 Cal.App.4th 779, 783 [e-
mails]; Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1700
[unauthenticated documents of government agency].) Although the
documents in category Nos. 3 and 5 are subject to judicial notice (Evid. Code,
§§ 451, subd. (a), 452, subds. (a)–(c), 459, subd. (a)), their consideration is
neither necessary nor helpful to resolution of this appeal (Atempa v.
Pedrazzani (2018) 27 Cal.App.5th 809, 819).
9
claim is required to be presented to a public entity, which includes a city
(Gov. Code, § 900.4), “no suit for money or damages may be brought against
[the] public entity” until the claim has been presented to and acted upon or
deemed acted upon by the entity (id., § 945.4). A claim must be presented
within six months of accrual of the cause of action if it is for injury to person
or personal property and within one year after accrual if it is for any other
cause of action. (Id., § 911.2, subd. (a).) “[T]he claims statutes require timely
filing of a proper claim as a condition precedent to the maintenance of the
action.” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454 (City of
San Jose).) “[F]ailure to allege facts demonstrating or excusing compliance
with the claim presentation requirement subjects a claim against a public
entity to a demurrer for failure to state a cause of action.” (State of
California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)
Ndizeye’s action is subject to the claim presentation requirement. In
his second amended complaint, he sought $100 million from the City as
“compensation for physical injuries, emotional distress, property damage, and
other consequential losses that the Plaintiffs have suffered as a direct result
of [the City’s] negligence and discriminatory practices.” This qualifies as “a
suit for money or damages . . . against a public entity” for which presentation
of a claim is required by the Act. (Gov. Code, § 945.4; see id., § 905 [“claims
for money or damages against local public entities” must be presented except
in cases listed in statute]; Hart v. Alameda County (1999) 76 Cal.App.4th
766, 778 (Hart) [“A suit for ‘money or damages’ includes all actions where the
plaintiff is seeking monetary relief, regardless whether the action is founded
in ‘ “tort, contract or some other theory” ’ ”].)3 Ndizeye’s failure to allege
3 Ndizeye’s additional requests for declaratory and injunctive relief do
not exempt his action from the claim presentation requirement.
10
compliance with the claim presentation requirement or excuse therefrom
subjected the second amended complaint to demurrer. (State of California v.
Superior Court, supra, 32 Cal.4th at p. 1239.)
Moreover, judicially noticeable facts showed Ndizeye did not present a
claim in compliance with the Act. In ruling on the demurrer, the trial court
could, and did, take judicial notice of the claim he submitted to the County.
(Code Civ. Proc., § 430.30, subd. (a); Evid Code, § 452, subd. (c); Gong v. City
of Rosemead (2014) 226 Cal.App.4th 363, 368, fn. 1, 376.) The claim listed
“07/2007” as the date of the incident for which Ndizeye sought more than
$25,000 for “[e]motional distress” caused by the City’s “negligence” and
“neglect of duty” in maintaining public roads and sidewalks. Because the
claim was based on an alleged “injury to person,” it had to be presented “not
later than six months after accrual of the cause of action.” (Gov. Code,
§ 911.2, subd. (a); see Baillargeon v. Department of Water & Power (1977)
69 Cal.App.3d 670, 682 [§ 911.2’s former 100-day deadline applied to claim
for infliction of emotional distress because it sought damages for personal
injury].) Ndizeye did not present his claim until June 2023, nearly 16 years
after he suffered the alleged emotional distress, and he offered no
explanation for the delay. “The failure to timely present a claim to the public
entity bars the claimant from filing a lawsuit against that public entity.”
(California Restaurant Management Systems v. City of San Diego (2011)
195 Cal.App.4th 1581, 1591.)
Ndizeye argues he complied with the Act by timely presenting a claim
to the City. He asserts that although his second amended complaint “clearly
(TrafficSchoolOnline, Inc. v. Clarke (2003) 112 Cal.App.4th 736, 741; Gatto v.
County of Sonoma (2002) 98 Cal.App.4th 744, 762; Hart, supra,
76 Cal.App.4th at p. 782; Loehr v. Ventura County Community College Dist.
(1983) 147 Cal.App.3d 1071, 1081.) Nor does his inclusion of class
allegations. (City of San Jose, supra, 12 Cal.3d at p. 457.)
11
alleges that the City’s negligence in maintaining road safety has been
ongoing for over 57 years,” the trial court “erroneously focused on a single
reference date of 2007, which was included only to provide historical context.”
Without providing any dates or other circumstances, Ndizeye alleges for the
first time in his opening brief that he sustained several injuries as a result of
“the City’s ongoing failure to repair hazardous road conditions.” He claims
that: (1) “[d]ue to the narrow road,” he “missed classes, failed courses, and
suffered financial losses”; (2) he “tripped and sustained an injury” that left “a
permanent and debilitating scar”; (3) his “vehicle has sustained recurring
damage, including scratches and accumulation of debris,” which “necessitates
frequent maintenance and costly cleanings” and “has substantially increased
his utility bills”; and (4) his “inability to receive regular waste
collection . . . due to road conditions has led to uncollected trash, poor air
quality, and diminished property value.” Ndizeye contends “[t]he nature of
the alleged wrongful conduct” by the City “supports the application of the
continuing violation doctrine and continuous accrual doctrine”4 to make his
claim timely. We disagree.
4 Under the continuing violation doctrine, “[a]llegations of a pattern of
reasonably frequent and similar acts may, in a given case, justify treating the
acts as an indivisible course of conduct actionable in its entirety,
notwithstanding that the conduct occurred partially outside and partially
inside the limitations period.” (Aryeh v. Canon Business Solutions, Inc.
(2013) 55 Cal.4th 1185, 1198 (Aryeh).) “Generally speaking, continuous
accrual applies whenever there is a continuing or recurring obligation: ‘When
an obligation or liability arises on a recurring basis, a cause of action accrues
each time a wrongful act occurs, triggering a new limitations period.’
[Citation.] Because each new breach of such an obligation provides all the
elements of a claim—wrongdoing, harm, and causation [citation]—each may
be treated as an independently actionable wrong with its own time limit for
recovery.” (Id. at p. 1199.) “[U]nlike the continuing violation doctrine, which
renders an entire course of conduct actionable, the theory of continuous
12
Ndizeye has identified no recurring contractual, statutory, or other
legal obligation breached by the City in the six months before he presented
his claim in June 2023. All the cases he cites as support for applying the
continuous accrual doctrine involved such an obligation. (See Howard Jarvis
Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 812 [monthly
collection of tax]; Green v. Obledo (1981) 29 Cal.3d 126, 141 [monthly welfare
payments]; Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336,
1343 [periodic royalty payments under contract]; Armstrong Petroleum Corp.
v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1378 [monthly
payments and deliveries under contract].) Absent “a continuing or recurring
obligation” the breach of which “provides all the elements of a claim—
wrongdoing, harm, and causation”—the continuous accrual doctrine does not
apply. (Aryeh, supra, 55 Cal.4th at p. 1199.)
Ndizeye also has identified no wrongful act that the City committed in
the six months before he presented his claim and that was “part of a
continuous course of conduct without clear end.” All the cases he cites as
support for applying the continuing violation doctrine involved a series of
similar acts that harmed the plaintiff. (See Richards v. CH2M Hill, Inc.
(2001) 26 Cal.4th 798, 823 [employer’s “continuing course of unlawful conduct
under the FEHA by refusing reasonable accommodation of a disabled
employee or engaging in disability harassment”]; Komarova v. National
Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 345 [creditor’s “pattern of
unreasonably frequent calling” of debtor at work]; Pugliese v. Superior Court
(2007) 146 Cal.App.4th 1444, 1453–1454 [“continual domestic abuse over 15-
year period”].) The second amended complaint identifies no “pattern of
reasonably frequent and similar acts” by the City that harmed Ndizeye.
accrual supports recovery only for damages arising from those breaches
falling within the limitations period.” (Ibid.)
13
(Aryeh, supra, 55 Cal.4th at p. 1198.) His opening brief “identifies a series of
discrete, independently actionable alleged wrongs” (ibid.), including financial
losses from failed courses, a tripping injury, scratches to his vehicle, and poor
air quality from irregularly collected trash. “Nor is this a case in which a
wrongful course of conduct became apparent only through the accumulation
of a series of harms . . . .” (Ibid.) Ndizeye contends “the City’s negligence in
maintaining road safety has been ongoing for over 57 years.” The continuing
violation doctrine does not apply.
Another ground the City raised in its demurrer was nonliability for
negligence. “Except as otherwise provided by statute: [¶] (a) A public entity
is not liable for an injury, whether such injury arises out of an act or omission
of the public entity or a public employee or any other person.” (Gov. Code,
§ 815.) Under this statute, “there is no such thing as common law tort
liability for public entities.” (Quigley v. Garden Valley Fire Protection Dist.
(2019) 7 Cal.5th 798, 803.) Rather, “direct tort liability of public entities
must be based on a specific statute declaring them to be liable, or at least
creating some specific duty of care, and not on the general tort provisions of
Civil Code section 1714.” (Eastburn v. Regional Fire Protection Authority
(2003) 31 Cal.4th 1175, 1183 (Eastburn); see Gov. Code, § 815.6 [public entity
liable for breach of mandatory duty imposed by enactment designed to
protect against risk of particular kind of injury when breach causes that kind
of injury].) Civil Code section 1714, subdivision (a) provides: “Everyone is
responsible, not only for the result of his or her willful acts, but also for an
injury occasioned to another by his or her want of ordinary care or skill in the
management of his or her property or person, except so far as the latter has,
willfully or by want of ordinary care, brought the injury upon himself or
herself.” If that statute could be used to impose direct liability on a public
14
entity, “the general rule of immunity for public entities would be largely
eroded by the routine application of general tort principles.” (Eastburn, at
p. 1183.)
The primary theory of liability Ndizeye asserted in the second amended
complaint was negligence. He repeatedly mentioned the City’s “neglect” and
“negligence” regarding maintenance of public roads and sidewalks. He
labeled one of his causes of action “negligence,” and sought $100 million in
damages “for physical injuries, emotional distress, property damage, and
other consequential losses that the Plaintiffs have suffered as a direct result
of [the City’s] negligence.” Ndizeye alleged in the second amended complaint
that the City breached its duty of care, but he did not identify in his pleading
or in his appellate briefs any statute “creating some specific duty of care” the
City allegedly breached. (Eastburn, supra, 31 Cal.4th at p. 1183.) “Duty
cannot be alleged simply by stating ‘defendant had a duty under the law’ . . . .
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 v. Hemet Unified School Dist. (1986)
177 Cal.App.3d 792, 802; see Lopez v. Southern Cal. Rapid Transit Dist.
(1985) 40 Cal.3d 780, 795 (Lopez) [claims under Act “must be pleaded with
particularity”].) “Unless the applicable enactment is alleged in specific
terms, a court cannot determine whether the enactment relied upon was
intended to impose an obligatory duty to take official action to prevent
foreseeable injuries or whether it was merely advisory in character.”
(Sullivan v. County of Sacramento (1987) 190 Cal.App.3d 1070, 1080.) By
failing to identify a specific statute or other enactment imposing the duty on
which he based his negligence claim, the second amended complaint failed to
state facts sufficient to constitute a cause of action.
15
Ndizeye did cite Government Code section 835 in his second amended
complaint as a potential basis for imposing liability on the City “for any
injuries caused by a dangerous condition on its property,” and also cited the
statute throughout his appellate briefs. “The sole statutory basis for
imposing liability on public entities as property owners is Government Code
section 835.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347;
accord, City of Los Angeles v. Superior Court (2021) 62 Cal.App.5th 129, 139.)
A cause of action under the statute must allege: (1) a dangerous condition of
public property; (2) a proximate causal connection between the dangerous
condition and the injury sustained; (3) a reasonably foreseeable risk the
injury sustained is of a kind that would result from the dangerous condition;
and (4) the public entity created the dangerous condition or had actual or
constructive notice of its existence in enough time to have taken remedial
action before the injury occurred. (§ 835; People ex rel. Dept. of
Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484–1485.)
“Because recovery is based on a statutory cause of action, the plaintiff must
set forth facts in his complaint sufficiently detailed and specific to support an
inference that each of the statutory elements of liability is satisfied. General
allegations are regarded as inadequate.” (Mittenhuber v. City of Redondo
Beach (1983) 142 Cal.App.3d 1, 5 (Mittenhuber).)
The second amended complaint does not contain the required detailed
and specific allegations. Ndizeye generally alleged the “hazardous conditions
of the roads and sidewalks” in his neighborhood “increase the risk of
accidents, limit access to emergency services, and hinder daily commute and
transportation.” The only allegations of actual personal injuries or property
damage concerned two unidentified drivers whose vehicles collided at a
“dangerous” intersection in Ndizeye’s neighborhood and unidentified
16
“[c]hildren” whose bicycles “tripped on uneven sidewalks.” “Generally
speaking, a party lacks standing to assert a claim that belongs to another
person.” (Limon v. Circle K Stores Inc. (2022) 84 Cal.App.5th 671, 691.)5
Nowhere in the second amended complaint did Ndizeye describe a dangerous
condition of the street or sidewalk that proximately caused him to suffer
personal injury or property damage, or allege the City had notice of the
dangerous condition in time to prevent the harm.
In his opening brief, Ndizeye alleged he suffered “financial losses” by
missing classes and failing courses because of the narrowness of the street, “a
debilitating scar” from a tripping injury, “increased utility bills” for
maintenance and cleaning required by “scratches and accumulation of debris”
on his vehicle, and “poor air quality” and “diminished property value” from
irregular trash collection. Such allegations, even if added to Ndizeye’s
pleading, would not satisfy the requirement that he specifically allege:
(1) the dangerous condition (e.g., what did he trip on?); (2) a proximate causal
connection between the condition and the alleged injury (e.g., how did the
narrowness of the street cause him to fail courses?); (3) the dangerous
condition created a reasonably foreseeable risk of the kind of injury he
suffered (e.g., how were increased utility bills or poor air quality reasonably
foreseeable?); and (4) the City had notice of the dangerous condition in time
to prevent his injuries (e.g., when and how did the City have notice of
whatever dangerous condition caused him to trip?). Because Ndizeye’s
5 Ndizeye, purporting to act on behalf of himself “and all others similarly
situated,” included class allegations in the second amended complaint. It
appears from the record he is not licensed to practice law in California.
Hence, he may represent himself but not other persons in this action. (Bus.
& Prof. Code, § 6125; Birbrower, Montalbano, Condon & Frank v. Superior
Court (1998) 17 Cal.4th 119, 127; Estate of Sanchez (2023) 95 Cal.App.5th
331, 339.)
17
general allegations did not state a cause of action under Government Code
section 835 and the new facts he asserts in his opening brief do not provide
the necessary detail and specificity, the trial court properly sustained the
demurrer to the second amended complaint without leave to amend.
(Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 443–444;
Mittenhuber, supra, 142 Cal.App.3d at p. 5.)
Ndizeye also listed “discrimination” in the section of the second
amended complaint where he purported to identify his causes of action. He
alleged the City’s “apparent maintenance disparity” involved “discrimination
against people of color, low-income, [and] disabilities, as the [C]ity seems to
be non-compliant with the necessary accessibility standards and
regulations. . . . §504 of the Rehabilitation Act of 1973.” Earlier in the
pleading, Ndizeye alleged the “hazardous conditions of the roads and
sidewalks” in his neighborhood “stand[ ] in stark contrast to the well-
maintained and spacious roads observed in predominantly white
neighborhoods,” and suggested such “an alarming disparity in the
distribution in public resources and services . . . based on race, color, or
national origin” would violate the equal protection clause of the 14th
Amendment and Title VI of the Civil Rights Act of 1964 “if there’s no justified
reason for unequal resource allocation.” Ndizeye nowhere described how the
City discriminated against him in violation of the cited laws or what injury
he suffered as a result. His general allegations do not meet the
particularized pleading requirements for a claim against a public entity.
(Lopez, supra, 40 Cal.3d at p. 795; Mittenhuber, supra, 142 Cal.App.3d at
p. 5; Sussman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.)
Furthermore, in the claim Ndizeye presented to the City in June 2023, he
mentioned only negligence and neglect of duty by the City; he made no
18
reference to any discrimination by the City. Where, as here, the facts
underlying a cause of action asserted in a complaint against a public entity
were not fairly reflected in the claim presented to the public entity, the cause
of action is subject to dismissal. (Hernandez v. City of Stockton (2023)
90 Cal.App.5th 1222, 1231; Donohue v. State of California (1986)
178 Cal.App.3d 795, 802–803.)
For the reasons discussed above, we conclude the second amended
complaint “does not state facts sufficient to constitute a cause of action.”
(Code Civ. Proc., § 430.10, subd. (e).) We further conclude Ndizeye has not
met his burden to show there is a reasonable possibility he could cure the
defects by further amendment. (Zelig v. County of Los Angeles (2002)
27 Cal.4th 1112, 1126; Herron v. San Diego Unified Port Dist. (2025)
109 Cal.App.5th 1, 7.) The trial court thus properly sustained the City’s
demurrer without leave to amend.6
B. Orders Striking Statements of Disqualification
We next address Ndizeye’s challenge to the trial court’s orders striking
his statements of disqualification. He complains the court’s procedural errors
in handling the statements deprived him of his due process right to an
impartial tribunal and resulted in prejudice by denying him leave to amend.
We are not persuaded.
6 Our conclusion the trial court correctly ruled on the City’s demurrer
makes it unnecessary for us to consider Ndizeye’s claim the City has no
immunity for discretionary acts (Gov. Code, §§ 815.2, subd. (b), 820.2). (See
Caldwell v. Montoya (1995) 10 Cal.4th 972, 985 [“an immunity provision need
not even be considered until it is determined that a cause of action would
otherwise lie against the public employee or entity”]; Rodriguez v. Inglewood
Unified School Dist. (1986) 186 Cal.App.3d 707, 722–723 [no need to discuss
immunity when no statutory basis for liability].)
19
Ndizeye forfeited the challenge to the trial court’s orders striking his
disqualification statements to the extent the challenge is based on statutory
grounds for disqualification. As he acknowledged in his opening brief, “[t]he
determination of the question of the disqualification of a judge is not an
appealable order and may be reviewed only by a writ of mandate from the
appropriate court of appeal sought only by the parties to the proceeding.”
(Code Civ. Proc., § 170.3, subd. (d).) Section 170.3, subdivision (d) “specifies
the exclusive appellate remedy with regard to a statutory claim that the
superior court erred in granting or denying a motion to disqualify a judge.”
(Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.) Ndizeye never sought
writ review of the trial court’s orders striking his statements of
disqualification. His failure to do so bars him from obtaining review of the
orders on this appeal. (People v. Freeman (2010) 47 Cal.4th 993, 1000
(Freeman); Rivera v. Hillard (2023) 89 Cal.App.5th 964, 976.)
Ndizeye’s failure to seek writ review does not bar review on this appeal
of his claim that the orders striking the disqualification statements violated
his right to due process of law (U.S. Const., 14th Amend., § 1; Cal. Const.,
art. I, § 7, subd. (a)). (People v. Peoples (2016) 62 Cal.4th 718, 787; Brown v.
American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 673 (Brown).) Our
Supreme Court has cautioned that “the due process clause should not be
routinely invoked as a ground for judicial disqualification. Rather, it is the
exceptional case presenting extreme facts where a due process violation will
be found.” (Freeman, supra, 47 Cal.4th at p. 1005.) Exceptional cases involve
a probability of actual bias on the part of the judge (Peoples, at p. 787), such
as where the judge had a pecuniary interest in the outcome of the case, tried
defendants he had decided to charge with contempt, or received a large
20
campaign contribution from a party with a case pending before the judge
(Freeman, at pp. 1001–1006).
Ndizeye has identified no similar “extreme facts” in this case that
would establish a probability the trial judge was actually biased against him.
(Freeman, supra, 47 Cal.4th at p. 1005.) He complains the trial judge did not
“refer the [disqualification statements] to another judge for consideration.”
But a judge against whom a disqualification statement is filed may strike the
statement “if on its face it discloses no legal grounds for disqualification,” as
the trial judge did in this case. (Code Civ. Proc., § 170.4, subd. (b).) Ndizeye
also complains “the trial court proceeded to conduct hearings . . . and issue
substantive rulings” while the statements were pending. The only action the
trial judge took in the case while the disqualification statements were
pending, however, was to continue the hearing on the demurrer. A judge
against whom a disqualification statement has been filed may “[s]et
proceedings for trial or hearing.” (Id., subds. (a)(5), (d).) Ndizeye further
complains “the trial court’s denial of leave to amend . . . coupled with its
procedural error regarding the disqualification [statements] . . . resulted in
substantial prejudice to [him].”7 We already determined the trial court did
not prejudicially err by denying leave to amend. In any event, a ruling
against a party, even if erroneous, does not establish a probability of bias
7 In his reply brief, Ndizeye challenges additional rulings that
purportedly showed the trial court’s actual bias against him and “further
compounded the prejudice flowing from” the court’s improper handling of the
disqualification statements. He complains that the court denied one of his
requests for judicial notice, even though it granted the City’s request, and
that the court continued the hearing on the demurrer without a showing of
good cause by the City or proper notice to him. “These reply arguments are
forfeited as tardy, because appellant[ ] must give the other side fair notice
and an opportunity to respond.” (Schmidt v. Superior Court (2020) 44
Cal.App.5th 570, 592.)
21
requiring disqualification. (McEwen v. Occidental Life Ins. Co. (1916)
172 Cal. 6, 11; Rab v. Weber (2023) 91 Cal.App.5th 1337, 1353; Brown, supra,
224 Cal.App.4th at p. 674.) “In short, the circumstances of this case, as we
view them, simply do not rise to a due process violation . . . because,
objectively considered, they do not pose ‘ “such a risk of actual bias or
prejudgment” ’ [citation] as to require disqualification.” (Freeman, at
p. 1006.)
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III.
DISPOSITION
The judgment is affirmed. The City is entitled to recover its costs on
appeal.
IRION, Acting P. J.
WE CONCUR:
BUCHANAN, J.
CASTILLO, J.
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