Judge: Margaret L. Oldendorf, Case: 23AHCV02126, Date: 2024-04-29 Tentative Ruling

Case Number: 23AHCV02126    Hearing Date: April 29, 2024    Dept: P

[TENTATIVE] ORDER SUSTAINING DEMURRER TO THE FIRST CAUSE OF ACTION WITH LEAVE TO AMEND

I.        INTRODUCTION

           In this wrongful death action, Plaintiffs James P. Pollerana, Deanna Pollerana  and James D. Pollerana (collectively Plaintiffs) allege that decedent Anna Pollerana was struck and killed by a speeding car on September 8, 2022, while she was crossing the street. The complaint contains three causes of action: (1) wrongful death, dangerous condition of public property; (2) negligence-failure to warn and (3) negligent entrustment.

           The first cause of action is alleged against the government entities, the second and third causes of action are alleged against the individual defendants.

           Pasadena filed the instant demurrer on December 8, 2023. Plaintiffs filed an opposition on April 16, 2024. Pasadena filed a reply on April 22, 2024.

Before the Court are Pasadena’s challenges to the first cause of action. Pasadena alleges that the first cause of action fails for failure to state sufficient facts.

           The demurrer is sustained with leave to amend.

II.       DEMURRER

A. Legal Standard

Code Civ. Proc. Section 430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. (CCP § 430.10(e).) A demurrer tests the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  A demurrer is treated as “admitting all material facts properly pleaded,” but not the truth of “contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The general rule on demurrer is that the pleadings are “deemed to be true, however improbable they may be.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.4th 593, 604.) 

Questions of plaintiff’s ability to prove unlikely allegations are of no concern. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

Allegations need not be accepted as true if they are contradicted by judicially noticeable facts. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474.) 

“We treat the demurrer as admitting all the properly pleaded material facts and consider matters which may be judicially noticed, but we do not treat as admitted contentions, deductions, or conclusions of fact or law. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958 [102 Cal.Rptr.3d 343].) Further, ‘ “ ‘we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ”’ (Ibid.) Because a demurrer tests only the legal sufficiency of the pleading, we accept as true even the most improbable alleged facts, and we do not concern ourselves with the plaintiff's ability to prove its factual allegations. (Ibid.) ‘“Facts appearing in exhibits attached to the first amended complaint also are accepted as true and are given precedence, to the extent they contradict the allegations.”’ (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091.) Although a demurrer does not ordinarily reach affirmative defenses, it ‘“will lie where the complaint ‘has included allegations that clearly disclose some defense or bar to recovery.’ ”’ (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183, Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406. )

           B. Meet and Confer Requirement Met

           The Declaration of Caroline Monroy is offered in support of counsel’s compliance with Code Civ. Proc. Section 430.41. Monroy declares that she met and conferred with plaintiff’s counsel via video conference on November 22, 2023. (Monroy Decl. ¶ 4, referencing Exh. A.) She declares that the parties were unable to reach a resolution. (Monroy Decl. ¶ 5.)

The meet and confer requirement was met.

           C. Demurrer to the First Cause of Action for Dangerous Condition of Public Property

Paragraph 14 of the Complaint provides that Defendants owned, maintained, or otherwise controlled the traffic signs at Marengo Avenue. (Complaint ¶ 14.) ¶ 15 alleges that on September 18, 2022, the intersection was a dangerous condition due to the lack of traffic control measures such as speed bumps and signs and that there was a failure to warn against an non-obvious trap. (¶ 15.) ¶ 15 also alleges that Marengo Avenue is a heavily travelled street where people drive fast. (Complaint ¶ 15.) ¶ 16 provides that Defendants had actual or constructive knowledge of the dangerous condition; ¶ 17 alleges that decedent Anna Pollerana died because of the dangerous condition. (Complaint ¶¶ 16,17.)

Pasadena demurs on the grounds that Plaintiffs’ cause of action for premises liability cannot be asserted as the conditions alleged are not dangerous conditions. (Demurrer p. 7: 7-13.) In support, Pasadena cites Government Code Sections 830.4 and 830.8. Government Code Section 830.4 provides “[a] condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs.” (GC § 830.4, emphasis added.) Government Code Section 830.8 provides “[n]either a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices.” (GC § 830.8.) Pasadena also cites Brenner v. City of El Cajon for the proposition that a demurrer may be sustained without leave to amend if the complaint fails to plead around sign immunity under Government Code Sections 830.4 and 830.8. (See Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 436-437.)

To plead around sign immunity, a Plaintiff must allege that the government entity failed to provide a sign or other device necessary to warn of a non-obvious and concealed trap. (See GC § 830.8.) Such allegations must be specific as to how the specific condition is a dangerous condition and cannot rely on generalized allegations. (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124,131.) “A plaintiff's allegations, and ultimately the evidence, must establish a physical deficiency in the property itself.” (Huerta v. City of Santa Ana (2019) 39 Cal.App.5th 41, 48.) Heavy use of the road at issue is not a physical deficiency by itself. (See Brenner, supra, 113 Cal.App.4th at 440; Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 7; Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483-485.) Here, the complaint alleges “failure to warn against a non-obvious and concealed trap” but does not specify what the alleged trap was. The complaint does not identify a physical deficiency beyond the lack of traffic control measures for which liability is barred by Government Code Sections 830.4 and 830.8, heavy use of the street and improper maintenance. (See GC §§ 830.4, 830.8, Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 436, 440; Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1,7.) These deficiencies are not solved in Plaintiff's opposition. (See Opposition p. 7-8.)

However, the issue of specific factual allegations may be solved on amendment. Indeed, the Complaint has not yet been amended. The demurrer is sustained with leave to amend.

III.     CONCLUSION AND ORDER

 City of Pasadena’s demurrer to the first cause of action is sustained with leave to amend.

Plaintiffs are given 20 days to file a first amended complaint, with respect to the first cause of action only.

           Counsel for City of Pasadena to give notice of this order.

Dated:      4/28/2024                                          _______________________________

                                                                                       JARED D. MOSES

                                                                         JUDGE OF THE SUPERIOR COURT