Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant The People of the State of California 

 

RESPONDING PARTY: Plaintiffs Jonathan Pople and April Kent 

 

BACKGROUND 

This action arises from a bicycle accident on a road maintained by Defendant the People of the State of California (“State”).  Plaintiff Jonathan People suffered serious and permanent personal injuries while riding his bicycle southbound on Decker Road (CA-23) in Malibu, California.  (Compl. ¶¶ 23-24.)  His bicycle got stuck in a deep hole in the surface of the roadway, causing Pople to lose control of his bike and to fall.  (Compl. ¶ 23.)  Pople filed a complaint against a number of entities, including the State alleging a dangerous condition of public property, i.e., the dilapidated condition of the roadway surface.  The Complaint also includes a cause of action for loss of consortium on behalf of Pople’s wife, April Kent.   

This hearing is on the State’s motion to strike Kent’s loss of consortium claim and prayer for relief.  The State argues that loss of consortium is a common law cause of action for which a government entity cannot be liable, and all the damages Kent seeks in her prayer for relief stem from her loss of consortium claim.   

LEGAL STANDARD 

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (Code Civ. Proc., § 436.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

DISCUSSION 

The State argues that loss of consortium is a common law cause of action, and the California Supreme Court has held a public entity cannot be liable for common law claims.  The Court agrees. 

The California Supreme Court has characterized loss of consortium as a common law cause of action.  (See Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 795-796; accord Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 392-393.)  Further, the California Supreme Court has held that a public entity cannot be liable for common law claims: The Government Claims Act ¿(§ 815, subd. (a)) “abolishes all common law or judicially declared forms of liability for public entities except for such liability as may be required by the state or federal constitution e.g., inverse condemnation … ”  (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 (italics in original); see also McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, 961 (“Under the Government Claims Act (Gov. Code, § 810 et seq.), there is no common law tort liability for public entities in California; such liability is wholly statutory.” (internal citations and quotations omitted).) 

“Public entities in California are not liable for tortious injury unless liability is imposed by statute.  [S]overeign immunity is the rule in California; government liability is limited to exceptions specifically set forth by statute … This means that the 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 to the plaintiff.  The law’s clear purpose was not to expand the rights of plaintiffs in suits against governmental entities but to confine potential governmental liability to rigidly delineated circumstances.”  (San Mateo Union High School Dist. v. City of San Mateo (2013) 213 Cal.App.4th 418, 428.) 

Plaintiffs argue that Gov’t Code § 835 provides the statutory basis for Kent’s loss of consortium claim.  Section 835 provides a basis for liability against a governmental entity for a dangerous condition of public property.  But Kent’s loss of consortium claim does not refer to §  835.  (Compl. ¶¶ 34-35.)  “A plaintiff must plead with ‘particularity,’ ‘[e]very fact essential to the existence of statutory liability,” including the statute that gives rise to the liability.  (City of Los Angeles v. Superior Court (Wong) (2021) 62 Cal.App.5th 129, 148 (citations omitted).)  Regardless, public entities only owe duties to those using the allegedly dangerous property where the purported injury occurred.  (Id. at 133.) 

In Wong, the wife of a police officer sought damages after she contracted typhus through her husband who had been exposed to the disease on a public property (a police station).  The wife sued the City of Los Angeles (City), alleging negligence and a dangerous condition of public property under¿Government Code § 835.  The City filed a demurrer, arguing that the wife could not maintain a suit under § 835 because she was not using the property at the time of the injury.  The trial court overruled the City’s demurrer, and the appellate court granted a writ of mandate instructing the trial court to sustain the demurrer.  The Court of Appeal held that: “A public entity’s liability must be based on statute, and section 835 does not extend liability to members of the public whose alleged injuries do not arise from use of the property at issue or any adjacent property.”  (Id. at 133.)  The Court of Appeal continued: “Because [the wife] had no contact with the subject property and she has not alleged exposure to any condition of the subject property, [the wife] has not alleged facts to support a finding that the City had a duty to her.”  (Id. at 144.)           

As in Wong, here, Kent was not using the property at issue where her husband’s accident occurred.  Therefore, she cannot state a claim under Gov. Code § 835.   

Plaintiffs’ reliance on Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699 is unavailing.  Delta Farms involved a wrongful death action stemming from the drownings of two 15 year old girls, which was observed by the plaintiffs (parents and a sister of the decedents).  The plaintiffs in Delta Farms had actual physical contact with the allegedly dangerous property.  (Id. at 702.)  This is an important fact that distinguishes Delta Farms from this case.  Kent had no contact with the allegedly dangerous property and was not present at the property at the time of her husband’s accident.       

Plaintiff’s citation to Shelton v. Superior Court (1976) 56 Cal.App.3d 66 is also misplaced.  The case dealt solely with the statute of limitations and did not address the common law nature of a loss of consortium claim.  The case¿cannot be¿considered authority for a¿proposition it did not¿consider.  (Ginns¿v.¿Savage¿(1964) 61 Cal.2d 520, 524, fn. 2; Bates v. John Deere Co. (1983) 148 Cal. App. 3d 40, 53-54.) 

CONCLUSION 

Based on the foregoing, the Court GRANTS Defendant State of California’s motion to strike.  The Court will strike page 12:4-18 (including paragraphs 33-35) and page 13:24-14:10.  

 

IT IS SO ORDERED. 

 

DATED: May 17, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court