Judge: Lisa R. Jaskol, Case: 23STCV26581, Date: 2024-09-17 Tentative Ruling
Case Number: 23STCV26581 Hearing Date: September 17, 2024 Dept: 28
Having considered the demurring, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On October 31, 2023, Plaintiff Isiah Montgomery (“Plaintiff”) filed this action against Defendants California Department of Transportation, Serapio Jaramillo, and Does 1-100 for negligence, dangerous and defective condition of public property, negligence of employees of public entity, public employee and agent liability (Gov. Code, §§ 815.4, 840, et seq.), vicarious liability for the wrongful acts or omissions by public entity employees and/or retention of unfit employee (Gov. Code, § 815.2), and negligent hiring, supervision, and retention of employee.
On June 14, 2024, Plaintiff filed a first amended complaint against Defendants California Department of Transportation, Jaramillo Sarapio, and Does 1-100 for negligence, dangerous and defective condition of public property, and vicarious liability for the wrongful acts or omissions by public entity employees and/or retention of unfit employee (Gov. Code, § 815.2).
On July 10, 2024, Defendant Serapio Jaramillo (erroneously sued as Jaramillo Serapio) (“Jaramillo”) filed an answer to the first amended complaint. On July 17, 2024, Jaramillo filed a first amended answer.
On August 12, 2024, Defendant The People of the State of California, acting by and through the Department of Transportation, erroneously sued as California Department of Transportation (“Caltrans”) filed a demurrer to the second cause of action in the first amended complaint. The demurrer was set for hearing on September 17, 2024. On September 4, 2024, Plaintiff filed an opposition. On September 10, 2024, Caltrans filed a reply.
Trial is currently scheduled for April 29, 2025.
PARTIES’ REQUESTS
Caltrans asks the Court to sustain the demurrer to the second cause of action for dangerous and defective condition of public property.
Plaintiff asks the Court to overrule the demurrer.
LEGAL STANDARD
A. Demurrer
Code of Civil Procedure section 430.10 provides in part:
“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:
* * *
“(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. (See 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 2024) ¶ 7:43, p. 7(l)-25, emphasis omitted (Cal. Practice Guide).)
"A demurrer may be filed to one of several causes
of action in the complaint, without answering the other causes of
action." (Cal. Practice Guide, supra,
¶ 7:34.1, p. 7(l)-19.)
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 first amended complaint
The first amended complaint includes the following allegations:
Caltrans owned, controlled, operated, managed, designed, evaluated, constructed, maintained, built, oversaw, repaired, inspected, patrolled and supervised a landscaping project worksite, including but not limited to a designated portion of the U.S. 101 Freeway, the vegetation, foliage, shrubbery, and trees on the side of the freeway near Grand Avenue, in downtown Los Angeles, California (“worksite”).
On or about November 20, 2022, Plaintiff was collecting debris associated with fallen tree branches at the worksite while in the course and scope of his employment for Center for Employment Opportunities, Inc.
Jaramillo
was trimming trees directly above Plaintiff while in the course and scope of Jaramillo’s
employment for Caltrans. Jaramillo did
not warn Plaintiff to move and did not wait for Plaintiff to move before
trimming a tree branch which fell and hit Plaintiff on his head, injuring him.
B. Demurrer
To plead a claim for a dangerous condition of public property, a plaintiff must allege facts demonstrating the existence of “some defect in the property itself and the existence of a causal connection between that defect and the plaintiff's injury.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1138, original emphasis [trial court properly sustained demurrer against public entity defendants where “plaintiffs are unable to point to any defective aspect of the purely physical condition of the property”].)
Plaintiff’s first amended complaint does not allege facts demonstrating the existence of a dangerous condition of public property for purposes of Government Code section 830.2. The Court therefore sustains the demurrer to the second cause of action.
CONCLUSION
The Court SUSTAINS the demurrer filed by Defendant The People of the State of California, acting by and through the Department of Transportation, to the second cause of action for dangerous and defective condition of public property in Plaintiff Isiah Montgomery’s first amended complaint with 30 days leave to amend.
Moving party is ordered to give notice of the Court’s ruling.
Moving party is ordered to file the proof of service of this ruling within five days.