Judge: Lisa R. Jaskol, Case: 22STCV15991, Date: 2023-08-30 Tentative Ruling

Case Number: 22STCV15991    Hearing Date: December 7, 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 August 30, 2023, the Court sustained the County’s demurrer to the first amended complaint with leave to amend. 

On October 13, 2023, Plaintiff filed a second amended complaint against the County and Does 1-20 alleging premises liability, willful failure to warn, and loss of consortium. 

On November 13, 2023, the County filed a demurrer to the second amended complaint.  On November 27, 2023, Plaintiff filed an opposition.  On November 30, 2023, the County filed a reply. 

Trial is currently scheduled for March 29, 2024. 

PARTIES’ REQUESTS 

The County requests that the Court sustain the demurrer without leave to amend. 

Plaintiff requests 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: 

* * * 

“(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. . . .” 

(Code Civ. Proc., § 430.10, subds. (e), (f).) 

In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].) 

“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, emphasis omitted (Cal. Practice Guide).) 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 (Doe).) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135 (Lickiss).) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Lickiss, supra, 208 Cal.App.4th at p. 1135, citing Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

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.” 

(Gov. Code, § 835.) 

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.) 

          Government Code section 830.2 provides: 

“‘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.)  

DISCUSSION 

A.   The second amended complaint 

The second amended complaint alleges the following:         

On August 29, 2021, Perez and his children Miguel Perez and Erica Perez were at the County’s beach when Richard Joshua Franck (“Franck”) attacked them while they were walking along the path from the public restrooms to the beach.  For more than two years prior to March 2021, Franck had lived in an illegal encampment at the beach, where he stored a lethal weapon. The encampment was hidden within the brush directly adjacent to the well-worn path to the restroom facilities. 

The County knew about the illegal encampment but allowed it to remain at the beach without posting warnings or signs to alert the public. The County knew that the placement of the encampment adjacent to the well-worn path constituted a dangerous condition.  Nonetheless, the County allowed the encampment and its occupants to remain on the beach. 

  The County had dozens of encounters with Franck and Franck’s co-occupant before August 29, 2021.  Five months before the incident, the County had determined that Franck’s residence at the beach was illegal and told Franck he needed to leave the encampment.  One month later, when a Sheriff’s deputy again asked Franck to leave, Franck pulled a knife on the deputy.  A month after that, the County again told Franck to leave because his residence at the beach was illegal.  The following month, the County served a warrant for Franck’s arrest because the County knew that he was a danger to beach-goers. 

On August 18 and 26, 2021, Sheriff’s deputies again told Franck to leave.  On August 27, 2023, the Sheriff’s Department received a report that Franck was still living in his encampment. 

The first cause of action for “Premises Liability—Negligence” alleges 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.” (SAC ¶ 39.)  “Specifically, the well-worn path to the restroom facilities was rendered dangerous by the negligence of the County of permitting a known violent and dangerous individual, armed with weapons stored on the Beach, to establish his residence in dangerous proximity to the well-worn path regularly traversed by beach-goers to access to the Beach’s restroom facilities.”  (SAC ¶ 40.) 

The second cause of action for “Premises Liability—Willful Failure to Warn” alleges that 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, the weapon(s) stored in the encampment, and the dangerous individuals who illegally established their residence on the Beach, and created and/or exacerbated the degree of danger normally associated with walking the well-worn path to use the Beach’s restroom.” (SAC ¶ 48.) Defendants “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.” (SAC ¶¶49-50.) 

The third cause of action for “Loss of Consortium” incorporates the preceding allegations of the complaint. 

B.   Analysis 

          “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 (Cordova), citing Hayes v. State of California (1974) 11 Cal.3d 469, 472 (Hayes); see Zelig, supra, 27 Cal.4th at p. 1134 [“‘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’ ”].) “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; see Avedon v. State of California (2010) 186 Cal.App.4th 1336, 1342–1344 (Avedon) [where plaintiffs whose homes were burnt after individuals built fire inside cave located in state park claimed that State created dangerous condition by allowing public parking within quarter mile of cave and keeping entrance to cave open, court found no defect in cave or vehicular access to support claim].) 

However, “[i]n appropriate circumstances, a public entity may owe members of the public a . . . duty not to maintain public premises in a dangerous condition and, specifically, not to maintain its premises in a condition that will increase the reasonably foreseeable risk that criminal activity will injure such individuals. [Citations.]” (Avedon, supra, 186 Cal.App.4th at p. 1342, quoting Zelig, supra, 27 Cal.4th at p. 1133.)  “For example, [the Supreme Court] held in [Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799] that the condition of a community college campus may be dangerous if the presence of trees with thick foliage near a parking lot and stairway facilitated criminal activity against students. The risk of crime was reasonably foreseeable in that case because the district was aware of prior assaults.”  (Zelig, supra, 27 Cal.4th at p. 1135.) 

“In other cases, too, courts have concluded that plaintiffs could establish that a public entity maintained property in a dangerous condition within the meaning of Government Code section 835 although the injury to the plaintiff was caused by the criminal activity of third persons. Such a dangerous condition may exist, for example, when an entity with notice of criminal activity provides inadequate lighting in an airport parking lot, thereby foreseeably increasing the risk that members of the public will be attacked.”  (Zelig, supra, 27 Cal.4th at p. 1135, citing Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 488; Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82.) 

The Supreme Court “emphasize[d], however, that liability is imposed only when there is some defect in the property itself and a causal connection is established between the defect and the injury.  In many cases, courts have rejected the claim that an injury caused by the criminal activity of a third person was attributable to a dangerous condition of the property within the meaning of Government Code section 835, because the claims lacked an adequate showing that the property itself was in a defective condition.”  (Zelig, supra, 27 Cal.4th at p. 1135; see Hayes, supra, 11 Cal.3d at p. 472 [“courts have consistently refused to characterize harmful third party conduct as a dangerous condition—absent some concurrent contributing defect in the property itself”].) 

Like Plaintiffs’ first amended complaint, the second amended complaint alleges that Franck’s hidden encampment was a dangerous condition of public property.  (SAC ¶ 36.)  The second amended complaint also alleges that the placement of the encampment adjacent to the well-worn path and the path itself constituted dangerous conditions.  (SAC ¶¶ 11, 40.)  However, the only danger resulting from the encampment, its placement, or the path which the complaint identifies was the potential for bringing members of the public into contact with Franck. Plaintiffs do not allege that a defect in the encampment, its placement, or the path caused Plaintiffs’ injuries. 

In short, Plaintiffs have not pleaded facts which demonstrate that “a condition of public property ‘create[d] a substantial risk of injury even when the property [was] used with due care . . . .’”  (See Cordova, supra, 61 Cal.4th at p. 1104.)  It was only because a third party – Franck – carried out harmful conduct on the property by attacking Perez and his children that Plaintiffs suffered injuries. Therefore, the County cannot be liable under Government Code section 835 for Franck’s harmful conduct on the County’s property.  (See ibid.) 

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.  The Court sustains the demurrer to the third cause of action for loss of consortium because it depends on the first two claims. 

Plaintiffs have not shown that they can amend their complaint to state a claim for relief.  Therefore, the Court denies leave to amend. 

CONCLUSION 

The Court SUSTAINS Defendant County of Los Angeles’s demurrer to the second amended complaint of Plaintiffs Cuauhtemoc Perez, Primia Hernandez, Miguel Perez, and Erica Perez without 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 of the date of the hearing.