Judge: Lisa R. Jaskol, Case: 22STCV15591, Date: 2023-08-30 Tentative Ruling
Case Number: 22STCV15591 Hearing Date: August 30, 2023 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On May 13, 2022, Plaintiffs Cuauhtemoc Perez (“Perez”), Primia Hernandez, Miguel Perez, and Erica Perez filed this action against Defendants City of Los Angeles, City of Malibu, County of Los Angeles (“County”), and Does 1-20 for general negligence and premises liability.
On August 10, 2022, the County filed an answer.
On August 17, 2022, the Court dismissed the City of Los Angeles without prejudice at Plaintiffs’ request. On September 8, 2022, the Court dismissed the City of Malibu without prejudice at Plaintiffs’ request.
On June 16, 2023, the Court granted the County’s motion for judgment on the pleadings with 30 days leave to amend.
On July 10, 2023, Plaintiffs filed a first amended complaint against the County and Does 1-20 for premises liability, willful failure to warn, maintenance of a nuisance and loss of consortium.
On July 28, 2023, the County filed a demurrer to be heard on August 30, 2023. On August 16, 2023, Plaintiffs filed an opposition. On August 21, 2023, the County filed a reply.
Trial is currently scheduled for November 13, 2023.
PARTIES’ REQUESTS
The County requests that the Court sustain the demurrer.
Plaintiffs request that the Court overrule the demurrer.
LEGAL STANDARD
A. Demurrer
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
“(b) The person who filed the pleading does not have the legal capacity to sue.
“(c) There is another action pending between the same parties on the same cause of action.
“(d) There is a defect or misjoinder of parties.
“(e) The pleading does not state facts sufficient to constitute a cause of action.
“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.
“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
“(h) No certificate was filed as required by Section 411.35.”
(Code Civ. Proc., § 430.10.)
“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).” (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25 (Cal. Practice Guide), emphasis omitted.)
B. Public entity liability for injury caused by dangerous condition of property
Government Code section 835 provides:
“Except as provided by statute, 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.”
Government Code section 835.2 provides:
“(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
“(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
“(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
“(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”
(Gov. Code, § 835.2.)
“‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).) “A condition is not a dangerous condition within the meaning of this chapter 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 . . . was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.)
REQUEST FOR JUDICIAL NOTICE
The Court grants the County’s request for judicial notice. (Evid. Code, § 452, subd. (c).)
DISCUSSION
A. The First Amended Complaint
Plaintiffs allege that Richard Joshua Franck (“Franck”) attacked Perez with a machete while he and his children were at the County’s beach. The complaint alleges that Franck was homeless, lived in a “hidden homeless encampment” at the beach, and had previously attacked other beachgoers and a County Sheriff. Perez suffered serious injuries in the attack and the other plaintiffs (Perez’s family members) experienced compensable harm.
In the first cause of action for “Premises Liability—Negligence,” Plaintiffs allege that Defendants “so negligently owned, controlled, supervised, managed, maintained, and operated the Beach so as to allow the existence of the dangerous condition described above that was not apparent to those using the Beach in reasonably foreseeable manner with due care.” (FAC ¶ 27.) Defendants allegedly “had actual and constructive notice of the dangerous condition in a sufficient time prior to the incident to have taken measures to protect against the dangerous condition.” (FAC ¶ 29.)
In the second cause of action for “Premises Liability—Willful Failure to Warn,” Plaintiffs allege Defendants “had a duty to warn of the dangerous condition described hereinabove because of the County’s negligent allowance of, and failure to remove, the hidden homeless encampment created and/or exacerbated the degree of danger normally associated with walking the well-worn path to use the Beach’s restroom.” (FAC ¶ 35.) Defendants allegedly “had actual and constructive notice of the dangerous condition in a sufficient time prior to the incident to have taken measures to warn or protect against the dangerous condition” but “willfully failed to give warnings or to provide adequate safeguards against the dangerous condition described above that was not apparent to those using the Beach in reasonably foreseeable manner with due care.” (FAC ¶¶ 36-37.)
In the third cause of action for “Maintenance of Nuisance,” Plaintiffs allege: “The defective and dangerous condition of the Premises as alleged hereinabove constitutes a nuisance within the meaning of Civil Code §3479 and Code of Civil Procedure §731 in that they deprived Plaintiffs of the safe, healthy, and comfortable use of the Premises.” (FAC ¶ 43.) Residents near the beach allegedly informed the County of the “dangerous condition and Franck’s violence toward beachgoers,” the County had actual knowledge of the nuisance when a resident of the hidden homeless encampment attacked a County Sheriff a few months prior to the incident involving these Plaintiffs, and “Defendants failed and refused to remove or disband the encampment or relocate it . . . .” (FAC ¶¶ 43-45.)
B. The homeless encampment was not a dangerous condition of public property.
“The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133 (Zelig).)
“A public entity is not, without more, liable under [Government Code] section 835 for the harmful conduct of third parties on its property.” (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1104, citing Hayes v. State of California (1974) 11 Cal.3d 469, 472.) “But if a condition of public property ‘creates a substantial risk of injury even when the property is used with due care’ [citation], a public entity ‘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.’” (Ibid., citing and quoting Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 718-719.)
Plaintiffs’ first amended complaint alleges, in essence, that the “hidden homeless encampment” was a dangerous condition of public property which the County had a duty to protect and warn against. Plaintiffs do not allege that a physical defect of the homeless encampment caused Plaintiffs’ injury; they allege only that it existed, was “hidden,” and provided a place for unhoused people to live. The Court has found no legal authority to support the proposition that a group of unhoused people can turn public property into a dangerous condition by their very presence. Indeed, “ ‘third 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.’ ” (Zelig, supra, 27 Cal.4th at p. 1134, quoting Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810.) The mere presence of third parties who lack housing cannot create a different result.
The Court sustains the County’s demurrer to the first cause of action for premises liability—negligence and the second cause of action for premises liability—willful failure to warn because Plaintiff has failed to allege facts establishing the existence of a dangerous condition of public property.
C. Nuisance claim
The County asks the Court to sustain the demurrer to the third cause of action for nuisance because Franck, not the County, caused Plaintiffs’ injuries.
Plaintiffs' nuisance claim adequately alleges that the homeless encampment was a nuisance for which the County bore responsibility. (See Benetatos v. City of Los Angeles (2015) 235 Cal.App.4th 1270, 1285-1285 [party that fails to take steps to ameliorate a nuisance on its property may be liable for nuisance].) However, Plaintiffs fail to allege facts showing the homeless encampment -- as opposed to Franck -- caused or contributed to Plaintiffs' injuries. Plaintiffs' opposition to the demurrer does not address the nuisance claim.
Therefore, the Court sustains the demurrer to the nuisance claim.
D. Loss of consortium claim
The County argues Plaintiffs’ fourth cause of action for loss of consortium is “moot” because Plaintiffs’ other claims fail to state a cause of action. Plaintiffs argue the loss of consortium claim depends on their premises liability claims.
The Court sustains the demurrer to the loss of consortium claim.
CONCLUSION
The Court SUSTAINS the demurrer of Defendant County of Los Angeles to Plaintiffs’ first amended complaint with 30 days leave to amend.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.