Judge: Christian R. Gullon, Case: 24PSCV02207, Date: 2025-02-10 Tentative Ruling

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Case Number: 24PSCV02207    Hearing Date: February 10, 2025    Dept: O

Tentative Ruling

DEFENDANT, CITY OF WEST COVINA’S NOTICE OF DEMURRER AND DEMURRER TO FIRST, SECOND, THIRD AND FOURTH CAUSES OF ACTION OF PLAINTIFF’S FIRST AMENDED COMPLAINT is SUSTAINED in part and OVERRULED in part. The court SUSTAINS the 1^st COA on the grounds that the location is uncertain AND the court sustains the 1^st COA as Plaintiff is to REMOVE ALL ADDITIONAL THEORIES OF LIABILITY aside from the lifted/uneven pavement; the court OVERRULES the demurrer as to the 2^nd COA as Defendant has not presented authority that a duty to warn of a dangerous condition can NOT be presented as a separate COA; the court SUSTAINS the third COA with leave to amend to plead the requisite statute; and the court SUSTAINS the demurrer as to the 4^th COA WITHOUT leave to amend as the COA is not predicated upon a statute.

Background

This is a slip and fall case that occurred in September 2023.

On July 10, 2024, Plaintiff STEPHANIE CAMONTE filed suit against Defendant the City of West Covina (“Defendant” or “City”).[1]

On September 11, 2024, Plaintiff filed a first amended complaint (FAC) asserting the following causes of action (COAs):

1.     DANGEROUS CONDITION OF PUBLIC PROPERTY (GOV. C. § 835)

2.     FAILURE TO WARN OF DANGEROUS CONDITION OF PUBLIC PROPERTY (GOV. C. §§ 830 AND 835)

3.     VICARIOUS LIABILITY (GOV. C. §§ 815.4 AND 815.2(A))

4.     NEGLIGENCE

On July 10, 2024, the court filed an OSC for failure to file proof of service (POS). (According to the docket, as of 1/27/25, no POS has been filed.)

On October 15, 2024, Defendant filed the instant demurrer.

On November 22, 2024, Plaintiff filed her opposition.

On December 3, 2024, Defendant filed its reply.

The parties also have a CMC set for 2/10/25.[2]

Discussion

The FAC alleges, in pertinent part, the following:

On or about September 21, 2023, plaintiff [] was lawfully walking on the sidewalk westbound on Casad Avenue at [1004 W Casad Avenue, West Covina, CA 91790 (“Subject Location”)] in a reasonably foreseeable manner.  Unbeknownst to Plaintiff [], on W. Casad Ave., there was a lifted sidewalk. As plaintiff traveled on W. Casad Ave., due to the unreasonably dangerous condition of SUBJECT LOCATION, including but not limited to inadequate and/or lack of warning lights, inadequate and/or lack of signage, and inadequate and/or deficient conspicuity, and due to Defendants’ failure to adequately warn pedestrians of said dangerous conditions, Plaintiff came into contact with the uneven sidewalk causing her to trip and fall over. As a result, Plaintiff [] suffered severe and permanent injuries, including hand, wrist, and back injury. (FAC P5.)

According to Plaintiff’s Government Claim submitted on 3/20/24 that was denied on 4/4/24, Plaintiff stated that “tripped on an uneven sidewalk.” (FAC, Ex. A, p. 20 of 32 of PDF.)

The City demurs to all four COAs on the grounds that they fail to set forth sufficient facts and are uncertain, ambiguous and unintelligible pursuant to Code of Civil Procedure §430.10(e) and (f).[3] Additionally, the City argues that the FAC fails to comply with the claim presentation requirement of the Government Claims Act.

For reasons to be discussed below, the demurrer is sustained and overruled in part.

Overview of Actions Against Public Entity

A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute.  (See Government Code §815(a).) While negligence may be pleaded in general terms, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Accordingly, “every fact material to the existence of its statutory liability must be pleaded with particularity.”  (Demurrer p. 7, quoting Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Moreover, “the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.” (Demurrer p. 7, quoting Nelson v. State of California (1982) 139 Cal.App.3d 72, 79.)

1.     1^st COA for Dangerous Condition of Public Property (Gov. Code §835)

The elements for a dangerous condition of public property are as follows: “(1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff's injuries; and (5) compensable damage sustained by the plaintiff.” (Demurrer p. 7, quoting Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921, 925–926, citing Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757-758.)

A.     Condition (Demurrer p. 8)

To establish a qualifying condition, the plaintiff must point to at least one “physical characteristic” of the property. (Plaintiff’s Opp. p. 5, citing Song X. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 118; see also Opp. p. 5, citing Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1348 [“There must be a defect in the physical condition of the property….”].)

Here, the court disagrees with Defendant that the allegation of a “lifted sidewalk” is insufficient. (Demurrer pp. 8-9.) The FAC is not stating that Plaintiff merely tripped on a sidewalk or that Plaintiff tripped on a dangerous sidewalk. The FAC is stating what about the sidewalk was purportedly dangerous: it was uneven/lifted. To the extent that Defendant require dimensions of sorts, they have offered no case that requires such specificity; Defendant’s citations to Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434 and Suman v. City of Los Angeles (1969) 269 Cal.App.2d 803 do not support its proposition. Brenner is inapposite as there the plaintiff did not allege “any aspect or condition of the roadway itself that was dangerous and instead merely reiterated her claims that it was the absence of traffic safety or control devices that was the dangerous condition for which City was liable.” (Brenner, supra, 113 Cal.App.4th at p. 438.) Susman is irrelevant as it did not involve a slip and fall/dangerous physical aspect of property but the city’s purported liability for allegedly failing to control a mob.

Therefore, the FAC does allege a sufficient condition for dangerous condition of public property.

B.     Causation (Demurrer p. 9, header B)

Defendant argues that “[n]o particular detail is provided as to any of the defects alleged in the FAC.” (Demurrer p. 9.)

Here, as with above, Defendant does not provide a citation to a slip and fall case involving a sidewalk that requires an even more heightened level of particularity.

Therefore, the FAC does sufficiently plead causation.

C.    Location

Notwithstanding, the court agrees with Defendant that the FAC is uncertain in that the location of the injury changes keeps changing.

The FAC alleges that the injury happened 1004 W Casad Avenue, the Opposition states the injury happened at 599 Vincent Avenue (Opp. p. 1), while the government tort claim provides a map with a 621 N. Vincent Avenue address. (FAC p. 21 of 32 of PDF.) A trial court is bound by the allegations in the complaint and “cannot consider the outré-judicial statements of counsel nor the additional facts found in the briefs.” (Melikan v. Truck Ins. Exchange (1955) 133 Cal.App.2d 113, 114.) Effectively, as the FAC governs the allegations, the court SUSTAINS the demurrer WITH leave to amend to plead the correct address.

D.    The Presented Claim

The Governmental Tort Claim states that the basis of liability is an uneven sidewalk (as did the original complaint). The FAC, however, adds MORE theories of liability: warning lights, signage, “conspicuity,” or any type of gate.

The opposition does not genuinely and squarely address the issue. As noted by Plaintiff’s own citation to Stockett v. Assoc. Of Cal. Water Agencies Joint Powers Ins. Auth. (2004) 34 Cal.4th 441, 447, “[w]here the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, Courts have generally found the claim fairly reflects the facts pled in the complaint.” (emphasis added.) Here, however, the alleged failure was an uneven sidewalk whereas now the FAC alleges more defects.

Additional theories aside, California cases “reject the idea that an intersection on a heavily travelled thoroughfare is made dangerous by the type or existence of crosswalk markings, the lighting conditions, or the lack of traffic signals or other devices.” (Demurrer p. 8, quoting Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 763; see also Cerna, supra, 161 Cal.App.4th at p. 1351-1352 [“The lack of a traffic signal at the intersection does not constitute proof of a dangerous condition. ‘A condition is not dangerous ... merely because of the failure to provide regulatory traffic control signals....[internal citations omitted]. Nor does the lack of crossing guards prove a dangerous condition. The presence or absence of crossing guards is not a physical characteristic of the intersection and thus not actionable as a dangerous condition. A lack of human supervision and protection is not a deficiency in the physical characteristics of public property.”].) Thus, Plaintiff’s additional theories are unavailing as a matter of law.

Therefore, the court SUSTAINS IN PART the demurrer in that Plaintiff is to amend her complaint to remove all theories aside from the uneven sidewalk.

2.     Second COA for Failure to Warn of Dangerous Condition of Public Property Pursuant to Government Code §§830 and 835

Plaintiff grounds this second COA on Government Code § 830 and 835 and points to Defendants’ “inadequate design of the sidewalk ... inadequate alignment of the sidewalk to allow adequate site and stopping distance for users of the sidewalk, including ... pedestrians; the concealed and hidden nature of said dangerous conditions, which ... due to defendants’ failure to adequately warn pedestrians of said dangerous conditions.”  (FAC ¶26.)

It appears Defendant is arguing that the failure to warn is not an independent COA. (Reply p. 6:15-17 [“Neither of the cases, nor any existing case law provides for a plaintiff to bring a separate cause of action based on a public entity’s failure to warn of a dangerous condition. The sole basis in case law and in the instant case is to plead a cause of action based on Government Code §835, Dangerous Condition of Public Property.”].)

The City relies upon Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal. 5th 639 and Cameron v. State (1972) 7 Cal. 3d 318 to support its proposition that there is no legal authority to support a separate failure to warn of a dangerous condition of public property COA. (Demurrer p. 11; Reply p. 6.) However, it is unclear how on the one hand Defendant argues “the Courts held [the defendants] were liable for failure to warn of the condition” but on the other hand argues that “[n]either of the cases, nor any existing case law provides for a plaintiff to bring a separate cause of action based on a public entity’s failure to warn of a dangerous condition.” (Reply p. 6:5-6.) To the contrary, Tansavatdi DID involve separate causes of action. In Tansavatdi, the mother of a bicyclist sued the city for a dangerous condition AND the failure to warn of said dangerous condition. (Id. at p. 649 [“The decedent's mother…filed a complaint against the City for “[d]angerous [c]ondition of [p]ublic [p]roperty pursuant to Government Code section 835…The complaint FURTHER alleged the City had provided inadequate warning of dangerous conditions….”], emphasis and capitalization added; see also fn. 3.) The Tansavatdi court in another section of the opinion noted that TWO causes of action were at issue. “Citing Cameron, Tansavatdi separately argued that even if the City had demonstrated it was entitled to design immunity, that immunity did not apply to her claim that the City should have ‘warned of the dangerous condition ... since it [was] not reasonably apparent to a bicyclist’ and thus ‘create[ed] a concealed trap.’ Tansavatdi noted that the City's motion acknowledged the complaint had “pled THIS separate, independent theory [of dangerous conditions liability], negating any claimed design immunity.” (Id. at p. 650, emphasis and capitalization added.) In fact, the city in Tansavatdi “did not challenge [the plaintiff’s] assertion that Cameron had held that design immunity DOES NOT preclude a claim for failure to WARN of a dangerous traffic condition.” (Id. at pp. 650-651, emphasis and capitalization added.)

All in all, the court in Tansavatdi made unequivocally clear that it was “[r]elying upon] Cameron” to support its holding (id. at p. 647)—a case that held that “even if ‘design immunity’ ... immunize[d] the state for negligence in the creation of the dangerous condition, the concurrent negligence by the state in failing to warn of the dangerous condition provides an INDEPENDENT BASIS for recovery” (id. at p. 656)—and if the failure to warn was not a separate viable cause of action, the Legislature could have abrogated Cameron, but it did not. (Tansvatdi, supra, 14 Cal.5th at p. 669.)  

Therefore, the court OVERRULES the demurrer as to the 2^nd COA as the City has not set forth authority that the COAs are duplicative.

3.     Third COA for Vicarious Liability Pursuant to Government Code §§815.4 and 815.2(a)

The City argues that Liability for a dangerous condition of public property is not governed by the rules of vicarious liability set forth in California Government Code section 815.2, nor is it governed by California Government Code section 815.4.  A public employee is not liable for injury caused by a condition of public property that exists because of an act or omission during his or her scope of employment. (Govt. Code §840; Van Kempen v. Hayward Area Park Etc. Dist. (1972) 23 Cal.App.3d 822, 825.)  

Plaintiff doesn’t appear to dispute the City’s authority but states that she has asserted Government Code §§ 830 and 835. (Opp. p. 9.) The FAC, which governs, explicitly states that the COA is predicated upon Code sections 815.2 and 815.4. To the extent that other statutes incorporated reference, that is improper use of the pleading method. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. (Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101.) Here, however, Plaintiff is attempting to plead the statute by incorporating unidentified allegations from other portions of her FAC. This imposes the burden on the court and Defendant to search through the FAC to identify critical aspects of the claim.

Therefore, the court SUSTAINS the demurrer WITH leave to amend as to the 3^rd COA.

4.     Fourth COA for Negligence

According to Defendant’s, Government Code §835 is the sole statutory basis for bringing an action for premises liability against a governmental entity. (Demurrer p. 12, citing Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121; Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820; see also Cerna, supra, 161 Cal.App.4th at pp. 1346-1347.) Though Plaintiff appears to dispute otherwise, Plaintiff’s own citation to Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 supports Defendant’s position as it discussed liability under Government Code section 835 and did it involve a cause of action for negligence.

Therefore, the court SUSTAINS the demurrer as to the 4^th COA WITHOUT leave to amend as it fails as a matter of law. Should Plaintiff seek leave to amend, at the hearing, Plaintiff is to present binding authority indicating otherwise.

Conclusion

Based the foregoing, the demurrer is sustained in part and overruled in part. The court SUSTAINS the demurrer as to 1^st COA on the grounds that the location is uncertain and Plaintiff is to remove additional theories of liability; the court OVERRULES the demurrer as to the 2^nd COA as Defendant has not presented authority that a duty to warn of a dangerous condition can not be presented as a separate COA; the court SUSTAINS the third COA with leave to amend to plead the requisite statute; and the court SUSTAINS the demurrer as to the 4^th COA WITHOUT leave to amend as it is not predicated upon a statute.