Judge Cynthia A Freeland, Case 37-2023-00037538-CU-PA-NC 2023-12-15 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00037538-CU-PA-NC, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 14, 2023

12/15/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited PI/PD/WD - Auto Demurrer / Motion to Strike 37-2023-00037538-CU-PA-NC SMITH VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/05/2023

Defendant City of Escondido ('Defendant')'s demurrer to Plaintiffs Scott Lawrence Smith and the Estate of Jacob Smith (collectively, 'Plaintiffs')'s Complaint is sustained in part and overruled in part.

Defendant's request that the court take judicial notice of: (1) the existence of SANDAG as the San Diego Association of Governments and the 'Parcel Lookup Tool and Geographical Boundary Viewer' on SANDAG's website, and (2) Plaintiffs' June 9, 2023 claim submitted to Defendant, is granted. As to Plaintiffs' government claim, the court can only take judicial notice of the filing and contents of the claim, but not the truth of the claim. See Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 379, fn. 1.

Defendant's request that the court take judicial notice of: (1) images from SANDAG's parcel lookup tool purporting to show that 2646 Mary Lane is outside of Defendant's city limits, and (2) the lack of any resolution or public record accepting 2646 Mary Lane as a public work is denied. To start, Defendant has failed to properly authenticate the results of the parcel lookup tool attached as Exhibit 1 to its initial request for judicial notice. Nor has Defendant laid a proper foundation for those results. Moreover, while the court may take judicial notice of facts and propositions that cannot reasonably be the subject of dispute (see Cal. Evid. Code §§ 452(g), (h)), such is not the case here as there is presently a factual dispute as to the location of the City boundary line.

To the extent Plaintiffs have objected to evidence submitted as part of Mr. Phillips' and Mr. Brickley's declarations (aside from what is set forth in Defendant's request for judicial notice), those objections are sustained because, as set forth below, the court's analysis in ruling on the demurrer is limited to the Complaint, exhibits attached to the Complaint and incorporated by reference, and matters properly subject to judicial notice.

Factual Background and Procedural History This is a personal injury action arising from the death of Mr. Smith's son, Jacob Smith ('Jacob'). The Complaint alleges that on December 17, 2022, Defendant Jonathan Emilio Rosas was driving west on Mary Lane and turning left out of a driveway located at 2646 Mary Lane, Escondido, CA 92025. Jacob was driving north on Mary Lane approximately 110 feet north of Orangewood Drive. Mr. Rosas failed to yield the right of way to Jacob and entered the highway from the private driveway. Jacob broke hard, causing him to overturn and be ejected from his vehicle. Jacob subsequently collided with the road and the side of Mr. Rosas' vehicle, which resulted in Jacob's death. The Complaint describes the accident as having occurred at 'Mary Lane, 2600 Block, 110 Feet North of Orangewood Drive, Escondido, California.' Calendar No.: Event ID: TENTATIVE RULINGS

3032506 CASE NUMBER: CASE TITLE: SMITH VS COUNTY OF SAN DIEGO [IMAGED] 37-2023-00037538-CU-PA-NC On August 29, 2023, Plaintiffs commenced this action by filing a Judicial Council Form PLD-PI-001 Complaint against Defendant and various entities and individuals. See ROA No. 1. In relevant part, the second cause of action for premises liability alleges three counts against Defendant: (1) count one for negligence; (2) count two for willful failure to warn; and (3) count three for dangerous condition of public property. The fourth cause of action states a separate negligence claim against Defendant for failure to meet: (1) its own standard with respect to corner sight distance at the intersection of the accident; (2) Caltrans Standards with respect to corner sight distance at the intersection of the accident; and (3) Caltrans Standards along Mary Lane with respect to stopping distance over a crest vertical curve.

Defendant now demurs to all causes of action/counts alleged against it.

Legal Analysis A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.

The demurrer to the second cause of action (count one – negligence) and the fourth cause of action for negligence is sustained. California Government Code ('CGC') § 815(a) provides that '[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.' Cal. Gov't Code § 815(a). CGC § 815 'abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.' Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405, 409 (emphasis in original). '[S]ince all California governmental tort liability flows from the California Government Claims Act, the plaintiff must plead facts sufficient to show his or her cause of action lies outside the breadth of any applicable statutory immunity. He or she must plead with particularity, every fact essential to the existence of statutory liability.' City of Los Angeles v. Sup. Ct.

(2021) 62 Cal. App. 5th 129, 148. Accordingly, Plaintiffs' negligence claims fail as a matter of law because public entities such as Defendant cannot be found liable for non-statutory, common law negligence. See Eastburn v. Regional Fire Protection Authority (2003) 31 Cal. 4th 1175, 1183; Gibson v. Pasadena (1978) 83 Cal. App. 3d 651, 655. Plaintiffs cite no authority for the proposition that a general negligence claim can stand against a public entity merely because the claims were stated on an approved Judicial Council Form. Nor do Plaintiffs cite authority permitting them to, in essence, bootstrap their general negligence claims to their dangerous condition of public property claim.

Accordingly, the court sustains the demurrer to the second cause of action (count one – negligence) and the fourth cause of action for negligence without leave to amend as Plaintiffs have failed to demonstrate a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.

The demurrer to the second cause of action (count two – willful failure to warn) is sustained. California Civil Code § 846(a) provides that '[a]n owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose[.]' Cal. Civ. Code § 846(a).

However, Civil Code § 846 does not limit liability which otherwise exists for '[w]illful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.' Cal. Civ. Code § 846(d)(1). In Calendar No.: Event ID: TENTATIVE RULINGS

3032506 CASE NUMBER: CASE TITLE: SMITH VS COUNTY OF SAN DIEGO [IMAGED] 37-2023-00037538-CU-PA-NC this case, the Complaint alleges that Defendant, along with the County of San Diego, owned the subject property and willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity. However, California courts have held that Civil Code § 846 does not apply to public entities.

See Delta Farms Reclamation Dist. v. Sup. Ct. (1983) 33 Cal. 3d 699; Avila v. Citrus Community College Dist. (2006) 38 Cal. 4th 148. Consequently, the court must sustain the demurrer.

Accordingly, the court sustains the demurrer to the second cause of action (count two – willful failure to warn) without leave to amend as Plaintiffs have failed to demonstrate a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry, 2 Cal. 4th at 967.

The demurrer to the second cause of action (count three – dangerous condition of public property) is overruled. CGC § 835 provides that: Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Cal. Gov't Code § 835.

For purposes of CGC § 835, a 'dangerous condition' is defined as 'a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.' Cal. Gov't Code § 830(a). Determining what constitutes a dangerous or defective condition depends upon a case's particular facts and circumstances and requires an analysis of an amalgam of factors. See Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal. App. 4th 1466, 1476.

'A dangerous condition of public property may arise from its damaged or deteriorated condition, from 'the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.'' Salas v. Department of Transportation (2011) 198 Cal. App. 4th 1058, 1069 (quoting Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal. 4th 139, 149). A public entity has 'actual notice' under CGC § 835(b) 'if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.' Cal. Gov't Code § 835.2(a). A public entity has 'constructive notice' under CGC § 835(b) 'only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of duty care, should have discovered the condition and its dangerous character.' Cal. Gov't Code § 835.2(b).

Finally, for purposes of CGC § 835, '[a]djacent property' means 'the area that is exposed to the risk created by a dangerous condition of the public property.... [¶] ... A public entity may be liable only for dangerous conditions of its own property. But its own property may be considered dangerous if it creates a substantial risk of injury to adjacent property or to persons on adjacent property; and its own property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury.' Bonanno, 30 Cal. 4th at 148 (quoting Cal. Law Revision Com.

com., reprinted at 32 West's Ann. Gov.Code (1995 ed.) foll. § 830, p. 299.).

In this case, Defendant contends that it cannot be liable under CGC § 835 because it does not own or control the location of the subject accident. However, there is presently a factual dispute as to whether the particular section of the highway, i.e., 2646 Mary Lane, was part of Defendant at the time. See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113-114 ('A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.'). Moreover, as set forth above, the court cannot take judicial notice of the truth of the matters contained within Plaintiffs' Calendar No.: Event ID: TENTATIVE RULINGS

3032506 CASE NUMBER: CASE TITLE: SMITH VS COUNTY OF SAN DIEGO [IMAGED] 37-2023-00037538-CU-PA-NC government claim form. For purposes of the present demurrer, it is sufficient for the Complaint to allege, as it does, that Defendant owned or controlled both Mary Lane and adjoining properties.

Accordingly, the court overrules the demurrer as to the second cause of action (count three – dangerous condition of public property).

Conclusion In light of the foregoing, the court: (1) sustains the demurrer to second cause of action (count one – negligence), the second cause of action (count two – willful failure to warn), and the fourth cause of action for negligence without leave to amend, and (2) overrules the demurrer as to the second cause of action (count three – dangerous condition of public property). Defendant shall file and serve an answer or otherwise plead to the Complaint within ten (10) days of this hearing. See Cal. R. Ct. 3.1320(j).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, December 15, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 15, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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