Judge David S. Cunningham, Case Number: 21STCV38929, Date: 2023-05-24 Tentative Ruling

Judge: David S. Cunningham, Case: 21STCV38929, Date: 2023-05-24 Tentative Ruling

Moving Party: County of Los Angeles, Los Angeles County Flood Control District, and City of Carson (collectively “Government Defendants”)

This is a toxic tort action. The second amended master complaint (“SAMC”) alleges:

1. Plaintiffs allege herein that they were exposed to elevated levels of hydrogen sulfide in their homes and communities for an extended period of time, causing them harm, as a direct and proximate result of Defendants’ conduct as follows: (i) Defendant Marathon Petroleum Corporation illicitly discharged sulfur-containing wastewater (a byproduct of the oil refining process) from its Carson Refinery into the Dominguez Channel on or around September 16, 2021; (ii) Defendants Prologis, Inc., Prologis, LP, Liberty Property, LP, Virgin Scent, Inc. d/b/a Art Naturals, Day to Day Imports, Inc., Gordon Laboratories, Inc., Farzad Nourollah, and the Nourollah Defendants illicitly and dangerously stockpiled, and/or permitted the stockpiling of, millions of pounds of highly flammable and toxic materials (including hand sanitizer, anti-bacterial wipes, and other commercial flammable products) surrounding its warehouse, resulting in a massive fire and firefighting effort on September 30, 2021, and sending runoff of chemicals and debris into nearby storm drains which entered the Dominguez Channel; and (iii) Government Defendants failed to safely maintain the Dominguez Channel and associated storm drains, as described in more detail throughout this Complaint. Defendants’ collective wrongful conduct created a perfect environment for hydrogen sulfide to form in the Channel at dangerous levels for a prolonged period of time during the fall of 2021. Each Defendant’s wrongful conduct was a significant contributing factor to the formation of hydrogen sulfide in the Channel.

2. Hydrogen sulfide is a highly toxic and malodorous environmental contaminant most commonly associated with sewage. Throughout the fall of 2021, thousands of individuals – including Plaintiffs herein – experienced and complained of exposure to elevated levels of hydrogen sulfide formed in the Dominguez Channel for weeks on end.

3. Hydrogen sulfide is known to cause headaches, nausea, respiratory issues, and other illnesses.

4. Plaintiffs bring this action to recover compensatory damages associated with their exposure to noxious chemicals from the Dominguez Channel, for punitive damages, and for injunctive relief.

Here, Government Defendants demur to the eighth cause of action for dangerous condition of public property.[1]

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

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.

352. Plaintiffs incorporate and re-allege each of the paragraphs above as though fully set forth herein.

353. Defendant Los Angeles County Flood Control District owns, and with the Defendant Los Angeles County Department of Public Works operated and maintained, the Channel as a flood protection channel, a repository for discharge from adjacent commercial and industrial operations, and as a receptacle for run-off from its Municipal Separate Storm Sewer System (“MS4”).

354. Each Permittee for the portion of the MS4 for which it is an owner or operator shall prohibit non-stormwater discharges through the MS4 to receiving waters. NPDES No. CAS004004.

355. At all relevant times herein, the City of Carson owned and maintained Catch Basins 1702292, 1702292, and 1702294, which emptied directly into the storm drain system that acted as a conduit to the Channel.

356. On information and belief, the City of Carson operates all storm drains within the City. The Warehouse tenants and/or owners operate storm drains on their premises only under Defendant City of Carson’s coverage.

357. On information and belief, chemical runoff from the Warehouse entered the Channel through catch basins and storm drains operated by the City of Carson, among via other pathways.

358. BI 1206 is a storm drain system built, owned, and operated by the Los Angeles County Flood Control District. The BI 1206 is a storm drain system which empties into the Channel.

359. On information and belief, chemical runoff from the Warehouse entered the Channel through the BI 1206 storm drain system operated by the Los Angeles County Flood Control District and/or County of Los Angeles Public Works Department, among via other pathways.

360. The EWMP requires Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson to identify sources of pollutants in MS4 discharges, monitor the aquatic toxicity of receiving waters and conduct bioassessments to ensure that the water quality meets the standards of the Receiving Water Monitoring Program of the EWMP, and investigate non-storm water discharges to determine if the discharge is a persistent and significant non-permitted discharge that affects the quality of the downstream receiving water.

361. Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson are required to identify sources of pollutants in MS4 discharges and investigate non-storm water discharges to determine if the discharge is a persistent and significant non-permitted discharge that affects the quality of the downstream receiving water, among other things.

362. According to the CIMP, Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson are responsible for non-storm water outfall screening and monitoring. Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson are responsible for identifying non-storm water discharges that affect the quality of downstream receiving water. Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson are responsible for investigating both the sources of the discharge and the effects of the discharge on the Channel.

363. As an owner and operator of MS4s, the LACFCD is required to control pollutant discharges into and from its MS4, including the ability to control through interagency agreements among co-permittees and other owners of a MS4 the contribution of pollutants from one portion of the MS4 to another portion of the MS4.

364. Los Angeles County Code, Title 20 (Utilities), Division 5 (Flood Control District Property and Facilities) states that the owner of any natural watercourse, swale or man-made drainage channel shall maintain the same free of any vegetation, tin cans, rubbish or other obstructions to the extent necessary so that the natural flow will not be impeded at any time. (See Ord. 9556 § 1, 1968: Ord. 9533 § 1, 1968: Ord. 1549 § 5, 1928.) Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson were the owners and operators of a natural watercourse, swale, and/or man-made drainage channel and had the obligation, but failed to, maintain the drainage free of rubbish, pollutants, and other obstructions.

365. In the months and years leading up to September and October of 2021, there were changed conditions (including but not limited to Channel eutrophication and discharge from the Marathon refinery) in the Dominguez Channel which led to overgrown and decayed vegetation (e.g. algae) in the Channel. Because of testing requirements, Government Defendants and DOES 51-75 were aware of these conditions for long enough to remediate them, but instead did nothing.

366. The Los Angeles County Fire Protection District began issuing Notices of Violation to the Warehouse tenants months prior to the fire and was well aware of the fire risk. Notices of Violation were issued on May 19, 2021, and July 27, 2021, citing the tenants for storing and stockpiling millions of pounds of flammable materials near the exterior walls of the building and posing a severe fire risk. On September 29, 2021, the day before the fire, the Los Angeles County Fire Department issued a Notice of Potential Filing of an Administrative Enforcement Order to Yaakov Nourollah and Virgin Scent. Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson had actual knowledge of the Notices of Violation referenced herein.

367. As of September 16, 2021, the date that Plaintiffs allege Marathon began discharging sulfur-containing wastewater into the Dominguez Channel, the marine vegetation in the Channel estuary was overgrown and decayed, leading to declining oxygen levels in the Channel. Government Defendants knew or should have known, as a result of their water and sediment testing and reporting requirements, that oxygen levels were depleted and that the eutrophication process in the Channel was well underway. As of September 16, 2021, Government Defendants were responsible for monitoring the water quality in the Dominguez Channel, including sediment testing. As of September 16, 2021, Government Defendants knew or should have known that the illicit discharge of sulfur-containing wastewater was reasonably certain to cause elevated levels of hydrogen sulfide levels in and around the Channel. On September 16, 2021, Marathon’s fence line monitoring confirmed a spike of 290 ppb of hydrogen sulfide in ambient air (nearly ten times the California Ambient Air Quality Standard of 30 ppb over a one-hour exposure period), which continued at varying levels hovering at around 100 ppb for the following weeks.

368. Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson had actual and constructive notice of the dangerous condition through their knowledge of the hazardous conditions that existed at the Warehouse preceding the Warehouse fire and their failure to take earlier corrective action to abate those hazardous conditions, as well as their failure to properly maintain the Channel and associated storm drains to ensure it was free of vegetation, rubbish and other obstructions to the extent necessary per Los Angeles County Code, Title 20 (Utilities), Division 5 (Flood Control District Property and Facilities).

369. Further, as of September 30, 2021, the date of the Warehouse fire, Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson had actual knowledge that debris and chemical runoff from the Warehouse fire was reasonably certain to enter the Channel through storm drains and result in the formation of elevated levels of hydrogen sulfide in the Dominguez Channel.

370. Further, Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson knew, or through the exercise of reasonable care would have discovered, that the Channel was prone to eutrophication and biological decomposition of organic matter.

371. Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson had knowledge of a dangerous condition and failed to take measures to protect against it, resulting in millions of pounds of toxic waste entering the Channel and causing a horrific environmental disaster.

372. Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson knew that a massive Warehouse fire broke out on September 30, 2021 requiring millions of gallons of firefighting liquid and/or foam. The Los Angeles County Fire Department responded to the massive fire on September 30 at 2:12 p.m.

373. On September 30, 2021, the Los Angeles County Fire Department – Health Hazardous Materials Division issued a Notice of Violation / Order to Comply to Art Naturals and Yaakov Nourollah directing them to clean the areas affected by the waste and obtain an authorized clean up contractor to transport the waste.

374. On October 1, 2021, after the fire was out, the Los Angeles County Fire Department – Health Hazardous Materials Division visited the Warehouse and took photographs of the dangerous and disastrous conditions created by the fire and subsequent firefighting efforts.

375. At the time the fire was extinguished, a dangerous condition existed in the public property in and/or surrounding the Channel and associated storm drains and catch basins operated by Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson. At the time the fire was extinguished, Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson knew that millions of gallons of toxic chemical runoff (involving millions of pounds of man-made chemical-containing household products mixed with millions of gallons of man-made firefighting liquid and foam, to form millions of gallons of debris and chemical runoff) was reasonably certain to enter the Channel through its public storm drain system and result in an environmental disaster.

376. As of the time the fire was extinguished on October 1, 2021, there were no more fire suppression activities and no imminent “emergency.” The City of Carson did not proclaim the odor emanating from the Channel to be an “emergency” until October 25, 2021. The County of Los Angeles Board of Supervisors did not proclaim the odor emanating from the Channel to be an “emergency” until November 2, 2021.

377. While Defendants Los Angeles County and City of Carson issued warning and evacuation orders to nearby residents in connection with the Warehouse fire, neither Defendants Los Angeles County or Los Angeles County Flood Control District or the City of Carson warned residents about the impending and foreseeable harm resulting from pollutant discharges and chemical runoff entering the Channel.

378. Days later, beginning on or around October 3, 2021, elevated levels of hydrogen sulfide were detected around the Dominguez Channel in the area adjacent to the Marathon refinery. Water sampling and testing performed by the County in mid-October confirms that debris and chemical runoff from the Warehouse fire did, in fact, enter the Channel.

379. On October 14 and 15, 2021, two weeks following the fire, the County of Los Angeles Department of Public Works visited the Warehouse to collect water samples from storm drains and maintenance holes in the streets surrounding the Warehouse. Debris, rubbish, and fluid from nonstormwater discharge (including, to a large degree, chemical runoff from the extinguished Warehouse products) was observed within catch basins in the areas surrounding the Warehouse.

380. On October 19, 2021, the Los Angeles County Fire Department – Health Hazardous Materials Division issued a Notice of Violation / Order to Comply to Art Naturals and Yaakov Nourollah directing them to submit for approval a comprehensive clean-up/mitigation plan for fire damaged goods and to cover and contain all rainwater runoff within the facility.

381. While the Warehouse tenants and/or Warehouse owners had the responsibility to clean up and manage waste on private property, Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson had the responsibility, duty, and obligation to ensure that the massive quantity of toxic waste did not enter the Channel. Entry of the massive quantity of toxic waste into the Channel through storm drains owned and operated by Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson was foreseeable absent mitigation efforts.

382. In the days and weeks following the Warehouse fire, massive quantities of toxic chemical runoff entered the Channel through storm drains and catch basins owned and operated by Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson.

383. The Los Angeles County Fire Department – Health Hazardous Materials Division, with the assistance of the Los Angeles County Department of Public Works, continued to take photographs and obtain water samples throughout October and November of 2021.

384. Throughout October and November of 2021, Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson failed to safely operate the Channel and associated discharge pathways to protect Plaintiffs from known, foreseeable, and imminent harm.

385. Despite actual knowledge that chemical runoff was likely to enter the Channel through storm drains, Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson took no action whatsoever to stop the flow of chemical runoff into the Channel in the days, weeks or months following the fire, when they knew chemical runoff into the Channel was reasonably likely to occur.

386. Although feasible to have done so and squarely within their responsibilities to safely maintain the Channel, Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson failed to take any measures to protect against the dangerous condition including but not limited to (i) plugging storm drains, maintenance holes, and/or catch basins, (ii) cutting off flow to the Channel from known risks at and surrounding the Warehouse, and/or (iii) cutting off flow at discharge point(s) into the Channel.

387. It was not until December of 2021 (according to a report issued by the Los Angeles Regional Water Quality Control Board on December 21, 2021) that Los Angeles County Department of Public Works did in fact effectively plug multiple storm drains, culverts, pipes, maintenance holes, and/or catch basins surrounding the Warehouse to prevent stormwater from entering the Channel.

388. Notably, the Government Defendants had unique and unparalleled access to all of the pertinent information of the pre-incident dangerous condition – namely (i) unfettered access to water and sediment sampling, monitoring, and testing throughout the water column (i.e. from surface to floor), (ii) information about permitted and unpermitted discharges from local refineries including Marathon, and (iii) specific information about the hazardous materials improperly stored in and around the Warehouse in the months leading up to the Toxic Exposure Event.

389. In the months and years leading up to the Toxic Exposure Event, the Government Defendants could have and should have remediated the known hazards by any number of various measures, including but not limited to, (i) conducting a bioassessment of the sediment in the channel; (ii) thinning overgrown vegetation from the Channel; (iii) removing decayed vegetation from the Channel; (iv) dredging and removal of contaminated and/or aging sediment from the Channel; (v) insertion of dissolved oxygen, aeration and/or nanobubbling in the Channel to increase oxygen levels; and (vi) taking action to ensure that chemicals and debris did not make their way into the Channel via storm drains.

390. Beginning in September and October of 2021, Government Defendants DOES 51-75 were aware that a strong and pervasive odor was emanating from the Dominguez Channel. At all relevant times, the odor was known by Government Defendants DOES 51-75 to be from the release of hydrogen sulfide in the Channel. Despite knowledge of the impending disaster of chemical runoff entering the Channel through storm drains, Defendants Los Angeles County Flood Control District, County of Los Angeles, and City of Carson failed to take any action whatsoever until months after the fire when The Los Angeles County Department of Public Works plugged multiple storm drains, culverts, pipes, maintenance holes, and/or catch basins surrounding the Warehouse to prevent further stormwater from entering the Channel.

391. Government Defendants DOES 51-75 had actual or constructive knowledge of the preincident dangerous condition of the Channel, as described herein, leading to low levels of oxygen in the Channel and high levels of hydrogen sulfide in the communities surrounding the Channel because of ongoing odor complaints to the AQMD and handheld air monitoring showing levels highest near the Channel.

392. As a direct and proximate result of the Government Defendants and DOES 51-75’s negligent, reckless, and wrongful conduct as alleged in paragraphs 352-392 herein, Plaintiffs, and each of them, have incurred and will continue to suffer economic and noneconomic damages.

Government Defendants contend the demurrer should be sustained because the allegations fail to identify a defect in the public property that caused Plaintiffs’ injuries. They cite Zelig v. County of Los Angeles (2002) 27 Cal.4^th 1112 and Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5^th 292 as support. (See Demurrer, pp. 14-16; see also Reply, pp. 8-11.)

Plaintiffs contend Zelig and Hacala involved distinguishable facts. They claim “a public entity may be liable for injuries that result from a combination of the condition of the public property and negligent conduct by third persons on or about the property.” (Opposition, pp. 7-8, emphasis deleted.) They assert that the SAMC alleges such a combination:

. . . it was the condition of the public property (decay in the Channel) combined with third party conduct (known illicit runoff) which made the Channel dangerous. While the Warehouse Defendants had the responsibility to clean up and manage the waste on their property, because of the decayed condition of the Channel and the unsealed and unplugged storm drains and catch basins that lead to it, LACFCD, County, and Carson had the responsibility to ensure that the massive quantity of toxic waste did not enter the Channel through their public property (i.e., to take protective measures). [Citation.] Though Government Defendants did ultimately plug the multiple storm drains, culverts, pipes, maintenance holes, and catch basins surrounding the Warehouse, they did not do so until December, months after the toxic waste had continuously entered the Channel, exacerbating the dangerous condition and Plaintiffs’ injuries. [Citation.] Further, the Private Plaintiffs did not fail to use due care when living and breathing in proximity to the Channel.

(Id. at p. 8 [citing Peterson v. San Francisco Community College District (1984) 36 Cal.3d 799 and Sambrano v. City of San Diego (2001) 94 Cal.App.4^th 225].)

Plaintiffs also claim a physical defect in the public property is not required. They contend they only need to show that “some characteristic” of the property “contributed” to their injuries. (Id. at p. 9 [quoting Pekarek v. City of San Diego (1994) 30 Cal.App.4^th 909: “Although there need not be a physical defect in the property, there must be something about its physical condition that increased the risk of harm to the plaintiff”], emphasis deleted.)

It is true that Zelig and Hacala are distinguishable facts-wise. Zelig concerned a fatal shooting at a courthouse. In Hacala, the plaintiff tripped over a scooter parked on a sidewalk.

Zelig is a California Supreme Court decision. The opinion “emphasize[s] . . . that liability is imposed only when there is some defect in the property itself and a causal connection is established between the defect and the injury.” (Zelig, supra, 27 Cal.4^th at 1135.)

[t]o plead a dangerous condition existed, a complaint's allegations “must establish a physical deficiency in the property itself” – that is, the property must be “‘physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,’ or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users.” [Citation.] While a “public entity may be liable for a dangerous condition of public property even where the immediate cause of a plaintiff's injury is a third party's negligent or illegal act,” there must be “some physical characteristic of the property [that] exposes its users to increased danger from third party negligence or criminality.” [Citation.] “[I]t is insufficient to show only harmful third party conduct. . . . ‘“[T]hird party conduct by itself, unrelated to the condition of the property, does not constitute a ‘dangerous condition’ for which a public entity may be held liable.”’” [Citation.]

(Hacala, supra, 90 Cal.App.5^th at 307, emphasis in original; see also id. at 308 [requiring “the existence of ‘some physical characteristic of the property [that] expose[d]” the plaintiff “to increased danger from third party negligence”], emphasis in original.)

[a] public entity may be liable under Government Code section 835 for failing to take protective measures to safeguard the public from a dangerous condition of the property itself; however, when the danger at issue is third-party conduct, liability attaches only if the alleged physical condition of the property “increased or intensified” the risk of misconduct.

(Id. at 308, emphasis in original; see also Peterson, supra, 36 Cal.3d at 812-814 [college student attacked on a stairway by a man who had been hiding in foliage stated a claim by alleging that “defendants were aware of the condition” – which “increase[d] the risk of crime” – “and failed to take reasonable protective measures, including trimming the foliage or warning her of the danger”].)

These rules control here despite the factual differences and do not contradict with Plaintiffs’ authorities – Peterson, Sambrano,[3] and Pekarek.[4] [5]

On balance, the rules favor Plaintiffs’ position at this stage. The alleged third-party conduct was the generation of toxic runoff from the Warehouse Defendants’ property. Government Defendants’ alleged contributions were their failures to (1) “monitor (through sampling and testing, or by any other means) eutrophication indicators, vegetation decay, potential contaminants (including but not limited to sulfur compounds), or dissolved oxygen levels in the Channel” prior to September 16, 2021, (2) plug storm drains, catch basins, and the Channel, and (3) “cut[] off flow to the Channel[.]” (Opposition, pp. 2, 6; see also, e.g., SAMC, ¶¶ 367-391.) It is a question of fact whether Government Defendants’ actual or constructive knowledge of unremoved contaminated sediment, and lowered oxygen levels, caused the Channel to be in a decayed state, pre-fire, creating a dangerous condition during and after the fire. And, though storm drains, catch basins, and the Channel are not per se defective or dangerous, it is a question of fact whether keeping them open and failing to cut off flow for months, post-fire, “increased or intensified” the risk of the Warehouse Defendants’ conduct. (Hacala, supra, 90 Cal.App.5^th at 308.) At minimum, reasonable minds could differ in answering these questions. (See Zelig, supra, 27 Cal.4^th at 1133 [instructing that “[t]he existence of a dangerous condition [] is a question of fact” unless “reasonable minds can come to only one conclusion”].)

Government Defendants claim they cannot be liable for failing to close the storm drains, catch basins, and Channel. They contend Plaintiffs’ “failure to plug” theory involves affirmative inaction, not a defect in the property. (See Demurrer, pp. 16-17.)

The argument amounts to a partial demurrer, and, regardless, the Court disagrees. In Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, a car crash occurred at an intersection owned by a city. The driver died. The evidence showed that the driver’s view had been hindered by a sign near the intersection. Another defendant owned the sign and had erected it. On appeal, the California Supreme Court held that the city could be liable. Why? Because a public entity’s “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.” (Carson, supra, 36 Cal.3d at 841.) Similarly, keeping the storm drains, catch basins, and Channel open with actual or constructive knowledge of toxic runoff from an adjacent property may have made the drains, basins, and Channel dangerous. It at least raises a question of fact.

This distinction also suffices to defeat Government Defendants’ “reasonable use” argument. (See Demurrer, pp. 17-18 [citing, for example, Bartell v. Palos Verdes Peninsula School District (1978) 83 Cal.App.3d 492 and arguing that “property is not ‘dangerous’ within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care”], emphasis deleted; see also Reply, p. 11.) Nothing in Carson suggests that, independent of the adjacent sign, the intersection was unsafe when used with due care or that it would have made a difference.

Next, Government Defendants cite four immunity statutes. They claim they are entitled to absolute immunity under Government Code sections 850.4 (firefighting), 8655 (emergency services), 818.6 (inspection), and 831.2 (natural condition of public property). (See Demurrer, pp. 18-24.)

The immunity issues cannot be resolved via demurrer. None of the four immunities appears to cover the entirety of the eighth cause of action. The arguments act as partial demurrers. They need to be analyzed in relation to Government Defendants’ motion to strike.

[1] This is Government Defendants’ second demurrer. The first demurrer – to the eighth cause of action in the first amended master complaint – was sustained with leave to amend in June 2023.

[2] Case law describes the elements this way:

(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.

(Toeppe v. City of San Diego (2017) 13 Cal.App.5^th 921, 925-926 [quoting Cole v. Town of Los Gatos (2012) 205 Cal.App.4^th 749, 757-758].)

[3] In Sambrano, a minor climbed into a fire ring at a beach owned by the City of San Diego. She suffered burns from hot coals in the fire ring. The Court of Appeal held that the fire ring did not qualify as a dangerous condition.

[4] In Pekarek, a child bought ice cream from a truck parked on a city street. Then she ran across the street and was hit by a van. The Court of Appeal found that (1) the city street was not maintained in a dangerous condition, and (2) the plaintiffs failed to show that changes to the street would have diminished the risk of injury.

[5] Plaintiff also cites unpublished decisions, which is improper. (See, e.g., Opposition, p. 9.) The Court should decline to consider them.

[6] Overall, it is a close call whether the demurrer should be overruled or sustained. Government Defendants are correct that Plaintiffs fail to allege either an actual defect in the property (storm drains, catch basins, and the Channel) or that the property was unsafe when used reasonably. The Court leans toward overruling because Carson is a Supreme Court decision and seems to allow liability for defects on adjacent private property that raise the risk of injury relative to the public property.