Superior Court of California

County of Los Angeles

North Central District

Department B

siranush aklyan, et al.,

Plaintiffs,

state of california, et al.,

Defendants.

Case No.: 23BBCV01986

Hearing Date: July 26, 2024

[TENTATIVE] order RE:

motion to strike

BACKGROUND

A. Allegations

Plaintiffs Siranush Aklyan, Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan (“Plaintiffs”) allege that on February 25, 2023 at approximately 1:30 a.m., Siranush Aklyan was operating her vehicle in the number 1 of 5 lanes on the I-5 northbound freeway. Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan were passengers int the vehicle. Plaintiffs allege that they became trapped underwater following a heavy rainfall on the Golden State I-5 freeway. Plaintiffs allege that a “vehicle maneuvering the number two (2) lane initiated the passage adjacent to their vehicle, precipitating the generation of a wave, thereby inducing a hydrodynamic disturbance. This perturbation induced an unintended rotational motion of the Plaintiffs' vehicle in a counter-directional manner, leading to its eventual submersion. In a bid to evacuate the vehicle, the Plaintiffs made several unsuccessful attempts to unlatch the doors due to the exerted hydrostatic pressure, rendering them inoperable. Subsequently, the Plaintiffs successfully extricated themselves from the vehicle by manipulating one of the windows and effecting their exit through said window.” (Compl., ¶7.) Plaintiffs allege that the roadway was dangerous for drivers as the surface had insufficient traction and friction, had improper grooving and treatment of the pavement, used improper materials in the design/construction/maintenance/repair of the roadway, etc.

Plaintiffs allege that Defendants State of California and Caltrans District 7 owned, occupied, leased, used, regulated, controlled, managed, maintained, operated, supervised, repaired, and possessed the portion of the freeway at issue.

The complaint, filed August 25, 2023, alleges causes of action for: (1) statutory liability/dangerous condition of public property; and (2) negligence.

B. Motion on Calendar

On June 14, 2024, Defendant the People of the State of California, acting by and through the Department of Transportation (“Defendant”) (erroneously named as State of California and Caltrans District 7) filed a motion to strike portions of the complaint.

On July 15, 2024, Plaintiffs filed an opposition brief.

On July 24, 2024, Defendant filed a reply brief.

DISCUSSION

Defendant moves to strike portions of the complaint at paragraph 24 (page 9, line 5). The specific language includes references to Government Code, §§ 815.2(a), 820(a), and 840.2. They argue that they do not dispute that Plaintiffs properly plead a cause of action for dangerous condition of public property, but that the allegations for vicarious liability and negligence by referencing the aforementioned sections is improper. (Reply at p.5.)

First, Defendant argues that sections 815.2(a) and 820(a) regarding vicarious liability are improper. Government Code, § 815.2(a) states: “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 or his personal representative.” Government Code, § 820(a) states: “Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” Defendant argues that Plaintiffs have not specifically identified any employee of Defendant for which Defendant could be vicariously liable and that, even if Plaintiffs were able to identify employees, its employees are immune such that Defendant cannot be vicariously liable. Defendant cites to Yee v. Superior Court (2019) 31 Cal.App.5th 26, 40:

A public entity cannot be held vicariously liable for actions of its employees that are actually acts of the entity itself, albeit performed by necessity by employees or agents. Vicarious liability depends on the employee being independently liable for the act, the entity becoming liable because the employee's act was taken within the scope of his or her employment.

(Yee, supra, 31 Cal.App.5th at 40.) Defendant argues that a claim for dangerous condition of public property can only lie pursuant to Government Code, §§ 830 to 835.4.

Second, Defendant argues that section 840.2 for direct employee liability does not govern dangerous conditions of public property actions. Government Code, § 840.2 states:

An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity 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) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or

(b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

(Gov’t Code, § 840.2.) Again, Defendant argues that Plaintiffs have not identified any specific individual against whom a section 840.2 claim could be brought.

Plaintiffs argue that they are not required to plead the name of the specific individuals prior to undergoing discovery. Plaintiffs rely on C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872, wherein the California Supreme Court stated:

The complaint, it is true, does not identify by name or position the District's “employees, administrators and/or agents” who allegedly failed to “properly hire, train and supervise Hubbell.” But the District cites no statute or decision requiring a plaintiff to specify at the pleading stage which of the defendant's employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2. 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.]

(C.A., supra, 53 Cal.4th at 872; see Perez v. City of Huntington Park (1992) 7 Cal.App.4th 817, 820–821 [“The plaintiff may be unable to identify which employee committed the wrongful act, but this is not fatal to the employer's liability, if the evidence establishes that some employee in the scope of employment committed the wrongful act.”].)

Although the complaint does not name specific individuals who were employed by Defendant, the complaint alleges that Defendant and Does 1-100 knew of the dangerous and defective conditions of the roadway, knew that the plan or design of the roadway had become dangerous due to the change in the conditions of the roadway, failed to warn drivers or take other actions, etc. (Compl., ¶¶14-19.) Plaintiffs allege that the dangerous conditions and acts/omissions of Defendant and Does 1-100 and their management, administrators, designers, planners, engineers, maintenance personnel, inspectors, and/or other employees, staff, agents, or contractors were done within the course and scope of their duties. (Id., ¶21.) At this time, the Court will not preemptively strike references to section 815.2(a) and 820 for vicarious liability as there may be a basis for independent liability against Defendant’s employee(s) and their actions that were undertaken during the scope of their employment. The Court finds that the allegations are sufficiently particular for the cause of action to go forward. Similarly, section 840.2 is for direct liability against an employee of a public entity for a dangerous condition of public property. Whether Plaintiff is able to discover the names of such employees later, amend the Doe designations, and prove this will have to be determined beyond the pleading stage. As currently alleged, Plaintiffs have alleged sufficient facts against Defendant and specifically alleged the code sections that are at issue in this action; the identity of the particular individuals employed by Defendant is better left to be determined during the discovery process.

Finally, Defendant argues that public employees are immune from discretionary acts under Government Code, § 820.2, such that it cannot be vicariously liable for the actions or inactions of its employees. Section 820.2 states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” While such an exception may exist, at this time, the Court will not prematurely determine if the exception applies to the facts of this case based on the pleadings alone. Again, this is better addressed upon the consideration of evidence at the motion for summary judgment or trial stage.

The motion to strike is overruled.

CONCLUSION AND ORDER

Defendant the People of the State of California, acting by and through the Department of Transportation’s motion to strike is overruled. Defendant is ordered to answer.

Defendant shall give notice of this order.

DATED: July 26, 2024 ___________________________

John Kralik

Judge of the Superior Court