Judge: James L. Crandall, Case: 20-1123267, Date: 2022-10-06 Tentative Ruling

1.    Demurrer to Amended Complaint

2.    Motion to Strike

1.    Defendant Santa Ana Unified School District’s Demurrer is OVERRULED.

The Court GRANTS Defendant’s Request for Judicial Notice.

“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (C.A.) (2012) 53 Cal.4th 861, 872, provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”

Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”

Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]”

C.A. v. William S. Hart Union High School District (C.A.) (2012) 53 Cal.4th 861, 872, provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”

“ ‘ “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” ’ [Citations.] ‘ “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” ’ [Citations.]” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

Gov. Code, § 815, subd. (a) states: “Except as otherwise provided by statute: [¶] (a) 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”

Gov. Code 835 sets forth the exclusive conditions under which a public entity such as defendant may be held directly liable for injuries caused by a “dangerous condition” of public property. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) A plaintiff must establish each of the elements set forth in Gov’t Code 835 to prevail on his claim for dangerous condition of public property. Those elements are: (1) defendant owned the property; (2) the property was in a dangerous condition at the time of the incident; (3) the dangerous condition created a reasonably foreseeable risk of the kind of incident that occurred; (4) the negligent or wrongful conduct of defendant’s employee acting within the scope of his or her employment created the dangerous condition, or defendant had notice of the dangerous condition for a long enough time to have protected against it; (5) causation; (6) damages. (CACI 1100; Gov’t Code 835 [liability of public entity for dangerous condition of property].)

Cordova v. City of Los Angeles, (2015) 61 Cal. 4th 1099, 1105, provides: “The Act defines a “ ‘[d]angerous condition’ ” 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.” (§ 830.) Public property is in a dangerous condition within the meaning of section 835 if it “is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148, 132 Cal.Rptr.2d 341, 65 P.3d 807.) A condition is not dangerous “if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial, or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (§ 830.2.)”

Cole v. Town of Los Gatos, (2012) 205 Cal. App. 4th 749, 768–69 states: “The status of a condition as “dangerous” for purposes of the statutory definition does not depend on whether the plaintiff or other persons were actually exercising due care but on whether the condition of the property posed a substantial risk of injury to persons who were exercising due care. (Morris v. State of California (1979) 89 Cal.App.3d 962, 966, 153 Cal.Rptr. 117, fn. omitted [“a condition of public property is dangerous if it creates a substantial risk of harm when used with due care by the public generally, as distinguished from [a] particular person charged as a concurrent tortfeasor”]; Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 799, 198 Cal.Rptr. 208 [plaintiff's negligence “is a defense which may be asserted by a public entity; it has no bearing upon the determination of a ‘dangerous condition’ in the first instance”]; Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 719–720, 159 Cal.Rptr. 835, 602 P.2d 755 [“if the condition of its property creates a substantial risk of injury even when the property is used with due care, the state gains no immunity from liability simply because, in a particular case, the dangerous condition of its property combines with a third party's negligent conduct to inflict injury”]; 4 Cal.L.Rev.Comm. Reports (1963), p. 849, reprinted at 32 West's Ann. Gov.Code (1995 ed.) foll. § 830, p. 299, italics added [“Although the condition will not be considered dangerous ... unless it creates a hazard to those who foreseeably will use the property or adjacent property with due care, this does not require that the injured person prove that he was free from contributory negligence. Contributory negligence is a matter of defense under subdivision (b) of Section 815.”].)”

There must be evidence that “the risk of injury was not increased or intensified by the condition of the property.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1137.) If a property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care, then the property is not “dangerous” within the meaning of Government Code 830. (Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 754-755.) Regarding "reasonably foreseeable risk", the court applies “an objective standard [that] is measured by the risk posed to an ordinary foreseeable user.” (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 992.)

Whether the property is in a dangerous condition is to be determined without regard to whether the plaintiff exercised or failed to exercise reasonable care in his use of the property. (CACI No. 1102; see also Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131 [comparative fault does not negate the possible existence of a dangerous condition].)

“The existence of a dangerous condition is ordinarily a question of fact but ‘can be decided as a matter of law if reasonable minds can come to only one conclusion.’” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810 [whether “a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.”].))

“In Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734 [139 Cal.Rptr. 876] (Fielder), the court set forth a number of factors to be considered when a court makes a determination of whether a given condition of public property is minor or insignificant as a matter of law. The court should consider both the physical description of the condition, and “whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract [description] would indicate.” (Ibid.) Where appropriate, the court should consider not only the intrinsic nature and quality of the condition, but also other factors such as the time and place of the occurrence. (Ibid.) “Furthermore, the court should see if there is any evidence that other persons have been injured on this same defect.” (Ibid.)” (Sambrano v. City of San Diego (2001) 94 Cal. App. 4th 225, 234.)

Stathoulis v. City of Montebello, (2008) 164 Cal. App. 4th 559, 568 (Stathoulis) states: “Several decisions have found height differentials of up to one and one-half inches trivial as a matter of law. (See, e.g., Barrett, supra, 41 Cal.2d at p. 74, 256 P.2d 977 [in the absence of aggravating conditions, differential of less than half an inch deemed trivial]; Caloroso, supra, 122 Cal.App.4th at p. 927, 19 Cal.Rptr.3d 254 [elevation difference of under half an inch]; Fielder, supra, 71 Cal.App.3d at p. 724, fn. 4, 139 Cal.Rptr. 876 [same]; Nicholson, supra, 5 Cal.2d at p. 367, 54 P.2d 725 [one and one-half inch elevation difference]; Whiting v. City of National City (1937) 9 Cal.2d 163, 165–166, 69 P.2d 990 [elevation difference of a maximum of three-fourths of an inch].) However, it is also true that as “the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.” (Fielder, supra, 71 Cal.App.3d at p. 726, 139 Cal.Rptr. 876.) Moreover, size alone is not determinative of whether a rut presents a dangerous condition. It is just one of several factors—albeit “[t]he most important of these factors”—for determining whether a given defect may be deemed trivial as a matter of law. (See Thomas, et al., Premises Liability in California, supra, § 3:46 at p. 222.) We must also consider the nature and quality of the defect, the time of day and lighting conditions when the accident occurred, and whether there is evidence any one else has been injured by the same defect. (Fielder, supra, 71 Cal.App.3d at p. 734, 139 Cal.Rptr. 876.)”

Gov. Code §910 states: “A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: ¶ (a) The name and post office address of the claimant. ¶ (b) The post office address to which the person presenting the claim desires notices to be sent. ¶ (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. ¶ (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. ¶ (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. ¶ (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.”

“Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.)

The California Supreme Court has stated concerning the government claims statutes in Stockett v. Association of California Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446: “The purpose of these statutes is ‘to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.’ (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701.) Consequently, a claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what [the] entity is alleged to have done.’ (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1426, 4 Cal.Rptr.2d 203; Turner v. State of California (1991) 232 Cal.App.3d 883, 888, 284 Cal.Rptr. 349.) As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 225, 267 Cal.Rptr. 13), the claims statute “should not be applied to snare the unwary where its purpose has been satisfied” (Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal.App.3d 70, 74, 135 Cal.Rptr. 621).”

Turner v. State of Calif. (1991) 232 Cal.App.3d 883, 890-891 provides: “Plaintiff contends the general charge in his claim of ‘dangerous conditions of property’ is broad enough to include an allegation of inadequate lighting and is therefore substantial compliance with the tort claim requirement. (See Elias v. San Bernardino County Flood Control Dist., supra, 68 Cal.App.3d at p. 74.) Plaintiff relies on Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266 [262 Cal.Rptr. 754] and Blair v. Superior Court (1990) 218 Cal.App.3d 221 [267 Cal.Rptr. 13]. In Smith the court held a claim of negligent construction of a roadway which caused a landslide and destroyed the plaintiffs' homes supported a cause of action alleging the landslide was also caused by the clearance of slide debris from and the runoff of water over the new roadway.

The Court of Appeal indicated: “Necessary maintenance of the roadway, such as the clearing of slide debris, and conditions resulting from the presence of the road, such as the channelling of water runoff, are matters closely connected with the construction of the road.” (214 Cal.App.3d at p. 280.) ¶ In Blair we held a claim alleging an automobile accident had been caused by “ '[n]egligent maintenance and construction of highway surface' ” and “ '[f]ailure to sand and care for highway for safetyness of automobile transportation' ” (218 Cal.App.3d at p. 223) was sufficient to support allegations regarding ice on the road, lack of guard rails, improper slope of the road and inadequate warnings. We concluded the general claims regarding road maintenance and construction were sufficient to support the specific allegations of the complaint. (Blair v. Superior Court, supra, 218 Cal.App.3d at p. 226.) ¶ The instant case is distinguishable. In both Smith and Blair the allegations in the claim were broad enough to encompass those in the complaint. The allegations of the complaint merely clarified the allegations of the claim. Here, the allegations plaintiff seeks to introduce are completely different from those contained in the claim. Read in its entirety, the dangerous condition alleged in the claim is known criminal activity, not inadequate lighting. The new allegations constitute a complete shift in theory from what the defendants are alleged to have done to cause plaintiff's injuries. ¶ As we noted in Fall River, any contention of substantial compliance “is unavailing where the plaintiff seeks to impose upon the defendant public entity the obligation to defend a lawsuit based upon a set of facts entirely different from those first noticed. Such an obvious subversion of the purposes of the claims act, which is intended to give the governmental agency an opportunity to investigate and evaluate its potential liability, is unsupportable.” (Fall River Joint Unified School Dist. v. Superior Court, supra, 206 Cal.App.3d at pp. 435- 436, citing Donahue v. State of California, supra, 178 Cal.App.3d at p. 804.) The claim here alleged one factual scenario, i.e., the presence of criminal activity; plaintiff is attempting to introduce another, i.e., inadequate lighting. The trial court was therefore correct in refusing to consider inadequate lighting evidence to defeat summary judgment.”

Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 449 (Stockett) states: “In comparing claim and complaint, ‘we are mindful that ‘[s]o long as the policies of the claims statutes are effectuated, [the statutes] should be given a liberal construction to permit full adjudication on the merits.’ If the claim gives adequate information for the public entity to investigate, additional detail and elaboration in the complaint is permitted.”

All liability against a public entity must be based on the existence of a statute creating liability. (Govt. Code §815; Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)

“[D]irect tort 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, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183; accord Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 (“...our own decisions confirm that section 815 abolishes common law tort liability for public entities”).

For pleading, a statute must be identified that allows for the liability and the statutory elements must be plead with particularity. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802; Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1020.)

Defendant seeks an order sustaining the demurrer to the 1st cause of action for Dangerous Condition of Public Property and 2nd cause of action for Vicarious Liability because they Defendant contends the causes of action fail to state facts sufficient to state a cause of action, they are vague, ambiguous, uncertain, and unintelligible, and the alleged facts are not fairly represented in the Government Claim.

Plaintiff alleges the following facts in the Second Amended Complaint:

“Plaintiff is informed and believes, and thereon alleges that SAUSD and its agents and employees owned, controlled, managed, supervised and inspected the premises at Segerstrom High School, including the area underneath bleachers of the football stadium where Plaintiff was injured (hereinafter referred to as “Injury Area”).” (¶ 5.)

“Plaintiff is informed and believes, and thereon alleges in the years leading up to the incident and up to and including the date of incident described herein, SAUSD and its agents and employees changed, modified, improved or altered the Injury Area by arranging, storing, or placing workout equipment such as weight benches, hurdles, tractor tires, and other exercise equipment in such a reckless, dangerous, negligent manner it was foreseeable the general public would be drawn to and attempt to use this area. Use of the Injury Area was foreseeable risk of substantial injury to the general public.” (¶ 6.)

“Plaintiff is informed and believes, and thereon alleges that in the years leading up to the incident and up to the date of incident described herein, the area underneath the bleachers where Plaintiff was injured at the football stadium lacked sufficient lighting for one to safely traverse the area at night. The insufficient lighting in the Injury Area had been know to SAUHD for many years prior to the injury to Plaintiff.” (¶ 7.)

“For years prior to and including the date Plaintiff was injured and thereafter, Defendant SAUHD and its agents and employees were aware the foreseeable risk of substantial injury to the general public the Injury Area presented. In fact Defendants employee Security Officers have given prior sworn testimony they have known the Injury Area posed a substantial risk of injury to the general public and it was their duty to prevent use and or secure that area.” (¶ 8.)

“At the time of the Event, the area under the football stadium's bleachers contained low, overhead metal support beams for the bleachers. These beams were below person’s head level, and could cause severe substantial injury to an adult or child even if they moved about the area in a normal and reasonable manner. SAUSD and its agents and employees including their security guards also knew the lighting under the bleachers in the Injury Area was deficient thus aggravating and making much harder for the general public to ascertain or become aware of the risk of substantial injury. These actions and the Injury Area constituted a dangerous condition of public property at the time Plaintiff was injured there.” (¶ 9.)

“Plaintiff is informed and believes, and thereon alleges that in the years leading up to the incident and up to the date of the Event, SAUSD and its agents and employees including its security officers knew the area was unsafe for the general public including to reasonably use.” (¶ 10.)

“Plaintiff is informed and believes the Defendants and its agents and employees changed, modified, altered or improved the Injury Area underneath the bleachers from its original construction. Even though Defendant and its employees were aware of the insufficient lighting, they placed workout equipment in such a reckless, haphazard, negligent and thoughtless manner throughout the Injury Area underneath the bleachers so that it created a latent substantial risk of substantial injury to the general public including children. The serious risk of substantial injury was present even if the Injury Area was used in a reasonable and normal manner by the general public including children.” (¶ 11.)

“Plaintiff is informed and believes, and thereon alleges on or about September 19, 2019 the date Plaintiff was injured, Defendant SAUSD provided its employee security officers to provide public safety for an Orange Unified School District ("OUSD"), football game which was being held at Segerstrom Stadium.” (¶ 12.)

“Plaintiff is informed and believes, and thereon alleges in the years leading up to the injury to Plaintiff, including the date Plaintiff was injured, despite being fully aware of the Injury Area posed a substantial risk of serious injury, SAUSD failed to prevent, fix, guard against, fence off or secure the Injury Area.” (¶ 13.)

“On September 19, 2019, Plaintiff attended a high school football game (“the Event”) at Segerstrom High School and was injured in the Injury Area underneath the bleachers at Segerstrom High School Stadium.” (¶ 14.)

“Defendants and employees created the dangerous condition because despite being aware of the insufficient lighting, they placed workout equipment in such a reckless, haphazard and negligent manner throughout the Injury Area underneath the bleachers so that it created a latent substantial risk of substantial injury to the general public including children. The serious risk of substantial injury was present even if the Injury Area was used in a reasonable and normal manner by the general public including children.” (¶ 27.)

The foregoing is sufficient to state a cause of action for Dangerous Condition of Public Property and the allegations are not uncertain. Thus, those are not grounds to sustain the demurrer.

The Court turns to the contention that the Government Claim does not contain the factual allegations alleged in the Second Amended Complaint. Request for Judicial Notice, Ex. 1 is the Government Claim that states “Ms. Castaneda struck her head on the metal supports of the football stadium bleachers causing injuries.” In response to “What particular action by the school district or its employees caused the alleged damage or injury? (Include names of employees, if known, what equipment, unsafe situation, etc.)” Plaintiff responds: “Failure to warn, maintain, and inspect a dangerous condition.”

Defendant contends: “The Claim referred to only the metal support of the bleachers, not the surrounding location or items therein. The Claim never referred to purported inadequate lighting.” (Demurrer, 6:17-19.)

The Government Claim is sufficient to support the allegations given that it identified the football stadium bleachers based on the liberal construction required by Stockett. Furthermore, adequate lighting is a consideration the court takes into account when determining whether a condition is trivial or dangerous based on Stathoulis.

Based on the foregoing, the Demurrer to the first cause of action is OVERRULED.

Regarding the Second cause of action for Vicarious Liability, Defendant contends: “The new allegations against the DISTRICT employees are similarly barred. If the action against the public entity is barred by failure to file a timely claim, suit against a public employee for causing injury in the scope of his or her employment is also barred. [Gov.C. § 950.2]” (Demurrer, 12:5-7.) Based on the ruling on the first cause of action, Plaintiff is not barred from bringing her claim against the public entity and, therefore, is not barred for bringing the claim based on vicarious liability.

The Second Amended Complaint makes the following allegations regarding Vicarious Liability:

“SAUSD, and its employees including Juan Quezada and Oscar Hernandez and DOES 1-10, had the authority and it was their responsibility to take adequate measures to protect against the dangerous condition at the expense of SAUSD and the funds and other means for doing so were immediately available to them, and they had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (¶ 34.)

“SAUSD, and its employees including Juan Quezada and Oscar Hernandez and DOES 1-10 owed a duty of care to attendees of the event, including Plaintiff, to properly manage, inspect, supervise and/or control the Injury Area during the Event.” (¶ 35.)

“SAUSD’s employees, including Juan Quezada and Oscar Hernandez and DOES 1-10, breached their duty of care to Plaintiff, in that they negligently and carelessly failed to manage, inspect, supervise and/or control the Injury Area during the Event, by permitting the general public including children to congregate and play in the Injury Area unsupervised.” (¶ 36.)

“SAUSD’s employees, including Juan Quezada and Oscar Hernandez and DOES 1-10, breached their duty of care to Plaintiff by failing to take adequate measures to protect against the dangerous condition.” (¶ 37.)

Plaintiff’s theory of “Failure to warn, maintain, and inspect a dangerous condition” adequately includes the acts and omissions alleged.

Based on the foregoing, the Demurrer to the second cause of action is OVERRULED.

Accordingly, the Court OVERRULES Defendant Santa Ana Unified School District’s Demurrer. Defendant to file an Answer within 10 days.

Plaintiff to give notice.

2.Defendant Santa Ana Unified School District’s Motion to Strike is DENIED.

Defendant’s Request for Judicial Notice is GRANTED.

Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out 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 of Civil Procedure section 437 states: “(a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. ¶ (b) Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.”

Code of Civil Procedure section 435.5 states, in part: “(a) Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.”

Plaintiff seeks an order striking the following allegations:

1. Paragraph 6, page 2, lines 22 through 28, in their entirety, stating as follows: "6. Plaintiff is informed and believes, and thereon alleges, that in the years leading up to and including the date of the incident herein, SAUSD and its agents and employees changed, modified, improved or altered the Injury Area by arranging, storing, or placing workout equipment such as weight benches, hurdles, tractor tires, and other exercise equipment in such a reckless, dangerous, negligent manner it was foreseeable the general public would be drawn to and attempt to use this area. Use of the Injury Area was a forseeable risk of substantial injury to the general public."

2. Paragraph 7, page 3, lines I through 5, in their entirety, stating as follows: "7. Plaintiff is informed and believes, and thereon alleges, that in the years leading up to the date of the incident described herein, the area underneath the bleachers where Plaintiff was injured at the football stadium lacked sufficient lighting for one to safely traverse the area at night. The insufficient lighting in the Injury Area had been known to SAUSD for many years prior to the injury to Plaintiff."

3. Paragraph 11, page 3, lines 22 through 28, in their entirety, stating as follows: "11. Plaintiff is informed and believes the Defendants and its agents and employees changed, modified, altered or improved the Injury Area underneath the bleachers from its original construction. Even though Defendant and its employees were aware of the insufficient lighting, they placed workout equipment in such a reckless, haphazard, negligent and thoughtless manner throughout the Injury Area underneath the bleachers so that it created latent substantial risk of substantial injury to the general public including children. The serious risk of substantial injury was present even if the Injury Area was used in a reasonable and normal manner by the general public including children."

4. Paragraph 20, page 5, lines 12 through 21, in their entirety, stating as follows: "20. Plaintiff is informed and believes, and based thereon alleges that, at all times herein relevant and material, Defendants, and each of them were the agents, principles, servants, employers, employees, partners, joint venturers, predecessors in interest, successors in interest, and authorized representatives of each of the other Defendants, and were at all times relevant herein acting within the purpose, course and scope of their agency, service, employment, partnership, joint ventures and/or representation, and with the knowledge, permission and consent of their principal, employer, partners, joint venturers and co-Defendants, and each of them, and that each and every Defendant was negligent and tortuously liable in the selection and hiring of each and every other Defendant as his/her/its agent, servant employee, consultant, assistant, representative, partner and/or joint venturer, and/or authorized, directed or ratified the acts and omissions of their co-defendants."

5. Paragraph 21, page 5, lines 22 through 24, in their entirety, stating as follows: "21. At all times relevant hereto, Plaintiff was lawfully, legally and carefully using the premises including the Injury Area in a reasonably foreseeable manner, in a manner in which it was reasonably foreseeable it would be used."

6. Paragraph 22, page 5, line 25 through page 6, line 2, in their entirety, stating as follows: "22. Plaintiff is informed and believes, and based thereon alleges that, at all times relevant, Defendants SAUSD and Does 1-10 inclusive, designed, built, changed, created, modified, repaired, owned, leased, controlled, operated, managed, inspected, supervised, and/or repaired and used the public property in question, and specifically the Injury Area at the bleachers under the football stadium and the equipment stored under it, and were therefore responsible for the creation of, and the condition of the area with regard to the events, incidents and occurrences as alleged herein."

7. Paragraph 27, page 6, lines 16 through 21, in their entirety, stating as follows: "27. Defendants and employees created the dangerous condition because despite being aware of the insufficient lighting, they placed workout equipment in such a reckless, haphazard, and negligent manner throughout the Injury Area underneath the bleachers so that it created a latent substantial risk injury (sic) to the general public including children. The serious risk of substantial injury was present even if the Injury Area was used in a reasonable and normal manner by the general public including children."

8. Paragraph 34, page 7, lines 16 through 20, in their entirety, stating as follows: "34. SAUSD, and its employees including Juan Quezada and Oscar Hernandez, and DOES 1-10, had the authority and it was their responsibility to take adequate measures to protect against the dangerous condition at the expense of SAUSD and the funds and other means for doing so were immediately available to them, and they had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."

9. Paragraph 35, page 7, lines 21 through 23, in their entirety, stating as follows: "35. SAUSD, and its employees including Juan Quezada and Oscar Hernandez and DOES 1-10 owed a duty of due care to attendees of the event, including Plaintiff, to properly manage, inspect, supervise and/or control the Injury Area during the Event."

10. Paragraph 36, page 7, lines 24 through 27, in their entirety, stating as follows: "36. SAUSD, and its employees including Juan Quezada and Oscar Hernandez and DOES 1-10, breached their duty of due care to Plaintiff, in that they negligently and carelessly failed to manage, inspect, supervise, and/or control the Injury Area during the Event, by permitting the general public including children to congregate and play in the Injury Area unsupervised."

Taking all of the allegations as true, and for the reasons stated in the concurrent ruling of the Demurrer, the Court finds the preceding allegations are proper.

Based on the foregoing, the Court DENIES Defendant Santa Ana Unified School District’s Motion to Strike.

Plaintiff to give notice.

Future hearing dates

5/22/23 – Jury Trial