Judge Jill Feeney, Case 22STCV05005 2022-10-13 Tentative Ruling

This is a subrogation action for negligence arising from a vehicle collision which took place on February 11, 2021. Plaintiff Insurance Company of the West filed its Complaint against California Highway Patrol (“CHP”) on February 9, 2022. The accident involved Plaintiff’s Insured and co-Plaintiff, Christopher Acosta.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Before filing a demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in argued in the demurrer and motion to strike. (See Code of Civ. Proc. §§ 430.41; 435.5.)

California Government Code section 815 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” except as provided by statute. (Govt. Code, § 815, subd. (a); Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[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.) Since the duty of a governmental agency can only be created by statute or enactment, the statute or enactment claimed to establish the duty must at the very least be identified. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)

Pursuant to Government Code section 815.2, “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee....”

“Whether a defendant owes a duty of care to a plaintiff is primarily a question of law to be decided on a case-by-case basis.” (Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492, 498, citing Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46.) “As a general principle, a ‘defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’” (Bartell, supra, 83 Cal.App.3d at p. 498, citing Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434-435.) “However, absent some special relationship, a defendant falls under no duty to control the conduct of another, and incurs no liability to those endangered by such conduct.” (Bartell, supra, 83 Cal.App.3d at p. 498, citing DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 702-703.)

In Lugtu v. California Highway Patrol (2001) 26 Cal. 4th 703, 717, the California Supreme Court explained that “California cases uniformly hold that a police officer who exercises his or her authority to direct another person to proceed to—or to stop at—a particular location, owes such a person a duty to use reasonable care in giving that direction, so as not to place the person in danger or to expose the person to an unreasonable risk of harm.” The issue is not how many members of the public who are affected but rather the nature of the conduct undertaken by the law officer. “Thus, for example, in Williams v. State of California (1983) 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, [the Supreme Court] recognized that although law enforcement officers, like other members of the public, generally do not have a legal duty to come to the aid of a person, in carrying out routine traffic enforcement duties or investigations, a duty of care does arise when an officer engages in “an affirmative act which places the person in peril or increases the risk of harm as in McCorkle v. Los Angeles (1969) 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453, where an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car.’” Id. (emphasis in Lugtu).

Here, Plaintiff’s Complaint states that Acosta, a tow truck operator, was dispatched to an accident on the I-10 westbound freeway by his employer, John’s Towing, after his employer received a call from CHP Officer Gonzalez. (Complaint, ¶9.) Gonzalez “parked his motorcycle in lane number one but made no further effort to secure, block, flag, signal, or otherwise close and/or cordon off the left shoulder to travel.” (Id., ¶12.) When Acosta arrived, he began taking photographs and performing other tasks in preparation for moving the damaged vehicle off of the median divider. (Id., ¶15.) Before Acosta could tow the vehicle, Gonzalez instructed Acosta to wait in a specific location in the number one lane close to the shoulder by Gonzalez. (Id., ¶17.) A vehicle driving in the left shoulder at a high rate of speed then struck Acosta and other vehicles at the scene. (Id., ¶18.)

Plaintiff’s Complaint sufficiently pleads facts which show that Gonzalez’s affirmative conduct of directing Acosta to stand in the number one lane created a special relationship between Acosta and Gonzalez. The case at hand is similar to the facts in McCorkle where a plaintiff was injured after an officer directed the plaintiff into the middle of an intersection. Here, as in McCorkle, Gonzalez directed Acosta to stand and wait for him in the number one lane, thereby creating a special relationship. Thus, the Complaint sufficiently alleges facts that show a special relationship between Gonzalez and Acosta sufficient to impose vicarious liability on CHP.

CHP attempts to distinguish this case from others involving this issue. CHP cites Lugtu and argues the issue of duty depends on whether the officer created a more dangerous situation for the plaintiff. (Opp., p.3.) However, this misstates the holding of Lugtu. Rather, Lugtu states that an officer who exercises his authority to direct another person to proceed or stop at a particular location owes that person a duty of reasonable care so as not to place him in danger. (Lugtu v. California Highway Patrol (2001) 26 Cal. 4th 703, 717.) CHP cites other cases and emphasizes a special relationship was found in those cases where an officer created a more dangerous situation. CHP argues that here Gonzalez did not create a more dangerous situation for Acosta. To the contrary, the Complaint states that Gonzalez directed Acosta to stand in the number one lane. It is reasonable to infer from this fact that Gonzalez created a more dangerous situation because Gonzalez directed Acosta to stand in an active lane of traffic. Additionally, it is not just the creation of danger, but also some affirmative conduct on the officer’s side that determines the special relationship. The Complaint here adequately alleges that Gonzalez’s affirmative conduct placed Plaintiff in the path of the vehicle that struck him.

In Greyhound Lines, Inc. v. Dept. of California Highway Patrol (2013) 213 Cal.App. 4th 1129 the Court of Appeal reiterated the rule that “[n]onfeasance that leaves the citizen in exactly the same position that he or she already occupied cannot support a finding of duty of care. Affirmative conduct or misfeasance on the part of the CHP that induces reliance or changes the risk of harm is required.” (Id. at 1136.) Here, affirmative conduct has been alleged and it has been further alleged that the affirmative conduct induced reliance. (Complaint, ¶¶ 22-24.)