Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC 354188, James R. Dunn, Judge.
Steve Kessler, in pro. per., for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Janet G. Bogigian, Assistant City Attorney, and Amy Jo Field, Deputy City Attorney, for Defendant and Respondent.
ROTHSCHILD, J.
Plaintiff Steve Kessler suffered severe injuries when he was struck by a hit-and-run driver. City of Los Angeles paramedics responded to the scene. In his suit against the City of Los Angeles (city), Kessler contends that the paramedics were negligent in failing to obtain the license number of the car that struck him. The trial court sustained the city’s demurrer to Kessler’s first amended complaint without leave to amend and entered a judgment dismissing the action against the city. We affirm.
FACTS AND PROCEEDINGS BELOW
Kessler’s first amended complaint against the city for negligence alleges as follows. Kessler was crossing Fairfax Avenue on his bicycle when a car making a right hand turn struck him and knocked him to the ground causing him severe injuries. The city paramedics arrived at the accident site, administered first aid to Kessler and transported him to a hospital. The car that struck Kessler was parked approximately 20 yards beyond the ambulance. Kessler asked the paramedics to write down the license plate number of the car as they drove past it on the way to the hospital, but they told him “that’s not our job.” The driver of the vehicle left the scene before the police arrived.
The city demurred to Kessler’s complaint on the grounds (1) the paramedics had no duty to assist Kessler to secure information or preserve evidence for civil litigation against a third party and (2) Kessler’s claim against the city failed to comply with the provisions of the Tort Claims Act. The trial court sustained the demurrer without leave to amend on the ground the city owed no duty to Kessler. The court did not consider the argument based on the Tort Claims Act. Following entry of judgment for the city, Kessler filed a timely appeal.
DISCUSSION
I. STANDARD OF REVIEW.
“When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Under that standard, we must “determine whether the complaint states facts sufficient to state a cause of action.” (Ibid.) If it does not, we must determine “whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.]” (Ibid.) The burden is on the plaintiff to show that an amendment can cure the defect. If the plaintiff can prove that the defect can be cured, then we must find that the trial court abused its discretion and reverse the judgment. (Ibid.) Here, the complaint does not state a cause of action and plaintiff has not shown that it can be amended to do so.
II. THE PARAMEDICS’ DUTY OF CARE.
Kessler contends that the paramedics breached their duty of care by failing to obtain the license number of the car that struck him. Based on Williams v. State of California (1983) 34 Cal.3d 18, we disagree.
The plaintiff in Williams was a passenger in car when a piece of a heated brake drum flew off a passing truck, crashed through the car’s windshield and struck the plaintiff in the face. Plaintiff sued the State of California alleging that the Highway Patrol officers who arrived at the scene were negligent in their “‘failure to attempt any investigation or pursuit of the owner or operator of the truck whose brake drum broke and caused plaintiff’s injuries.’” (Williams v. State of California, supra,34 Cal.3d at p. 22, fn. omitted.) The court held that the officers did not owe plaintiff a duty of care because “there is no indication that they voluntarily assumed any responsibility to protect plaintiff’s prospects for recovery by civil litigation; and there are no allegations of the requisite factors to a finding of special relationship, namely detrimental reliance by the plaintiff on the officers’ conduct, statements made by them which induced a false sense of security and thereby worsened her position.” (Id. at pp. 27-28, fn. omitted.)
Like the Highway Patrol officers in Williams, the paramedics in this case had no duty to assist Kessler in obtaining information that would identify the driver of the car that struck him.
In his brief on appeal, Kessler argues Williams is distinguishable because in this case the paramedics created a “special relationship” with him when they agreed to write down the vehicle’s license plate number. According to Kessler, as the ambulance taking him to the hospital passed the car that struck him he asked the paramedics to write down the license number and the driver responded “Alright,” “OK,” or “Yeh.” Kessler states that he relied on the paramedics to get the license number and that their failure to perform their agreement worsened his position because he now has no way of identifying the driver who struck him in the crosswalk.
The statements in Kessler’s brief contradict the allegation in his complaint that the paramedics told him it was “not [their] job” to obtain the license plate number. We need not decide whether the city could be held liable if its paramedics agreed to assist Kessler by writing down the license number and then failed to do so. Kessler cannot amend his complaint to assert facts that contradict the facts he pled in the existing complaint without a satisfactory explanation for the inconsistency. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384.) In his first amended complaint Kessler alleges that the paramedics told him “that’s not our job” when he asked them to write down the license plate number. He now claims that the paramedics told him “OK,” “Alright,” or “Yeh,” when he asked them to write down the license plate number. Kessler offered no explanation for this inconsistency in his briefs on appeal or at oral argument when he was given the opportunity to do so. We conclude, therefore, that the trial court did not err in sustaining the city’s demurrer without leave to amend.
DISPOSITION
The judgment is affirmed.
We concur MALLANO, P. J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.