Judge: Matthew C. Braner, Case: 37-2022-00040854-CU-PO-CTL, Date: 2024-06-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00040854-CU-PO-CTL LISA CHANG AS SUCCESSOR IN INTEREST OF DONALD WHITE JR VS CALIFORNIA DEPARTMENT OF PARKS AND RECREATION [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant State of California by and through the California Department of Parks & Recreation's motion for judgment on the pleadings is GRANTED in part, and DENIED in part.

Defendant's request for judicial notice of the emails referenced in the first amended complaint is granted.

However, the court treats these emails the same as it does every other allegation in the complaint, giving both the emails and the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff Lisa Chang's request for judicial notice of various excerpts of deposition testimony (nos. 1, 7, 8), of email correspondence (nos. 5-6, 12), an incident report (no. 2), and a news article (no. 4) is denied. Plaintiff's remaining requests for judicial notice are granted.

'A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.' (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) Here, Defendant contends the first amended complaint of Plaintiff Lisa Chang, as successor in interest of Decedent Donald White, Jr. is barred by immunities set forth under Government Code sections 831.2 ('Section 831.2') and 831.4 ('Section 831.4') and that Plaintiff has failed to plead all the elements of a cause of action for either negligence or a dangerous condition of public property under Government Code section 835 ('Section 835').

Negligence First, Defendant contends the immunities provided by Sections 831.2 and Section 831.4 bar Plaintiff's claim for negligence. Under Section 831.2, '[n]either a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property.' A public entity establishes the applicability of this immunity by showing the plaintiff's injury was: (1) caused by (2) a natural condition (3) of unimproved (4) public property. (See Fuller v. State of Cal. (1975) 51 Cal.App.3d 926, 937.) The immunity applies regardless of the public entity's knowledge of the condition or its failure to warn. (Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184, 194; Goddard v. Dept. of Fish & Wildlife (2015) 243 Cal.App.4th 350, 360.) Section 831.4 provides immunity for any injury 'caused by a condition of' any unpaved road, trail, or path 'which provides access to fishing, hunting, camping, hiking, riding Calendar No.: Event ID:  TENTATIVE RULINGS

3135907  21 CASE NUMBER: CASE TITLE:  LISA CHANG AS SUCCESSOR IN INTEREST OF DONALD WHITE JR  37-2022-00040854-CU-PO-CTL including animal and all types of vehicular riding, water sports, recreational or scenic areas' or which is 'used for the above purposes.' It is broadly applied to defeat liability. (Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1083.) According to the FAC, Decedent's death was the result of extreme weather conditions that Defendant's employees could and should have prevented by halting or postponing the 2021 Bighorn Sheep Count.

(FAC, ¶¶ 1-4.) Defendant contends Sections 831.2 and 831.4 apply because the extreme weather was a 'condition of' the unimproved land and trail on which Decedent's death occurred. The court disagrees. In each of the authorities cited by Defendant, the 'condition' at issue was part of the land or trail. Weather (and by extension, excessive heat) is at best a fluctuating geographic feature that does not fall within the scope of either immunity. The court is unaware of any legal authority that supports Defendant's novel contention that weather is a 'condition of' property. As such, the Sections 831.2 and 831.4 immunities do not apply.

Second, Plaintiff's claim for negligence is grounded on both a direct liability theory, and a vicarious liability theory. (FAC, ¶¶ 61-62.) To allege a direct liability theory against a government agency, a plaintiff must identify a 'specific statute either declaring the entity to be liable or creating a specific duty of care apart from the general tort principles embodied in Civil Code section 1714.' (Marie De Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 251.) As to the direct liability theory, Plaintiff alleges Defendant owed duties to Decedent created by the following statutes: (1) Government Code sections 3118 and 3119; (2) sections 4301 and 4326 of Title 14 of the California Code of Regulations; (3) Public Resources Code sections 5003 and 5008; and (4) Labor Code section 6300. (FAC, ¶¶ 18-25, 64.) However, none of these statutes create the kind of duty or liability necessary to bring a negligence claim on a direct liability theory, and such a duty cannot be created by regulation.

However, sufficient facts have been alleged for the negligence claim to survive a pleading challenge on the basis of a vicarious liability theory. The law imposes a general duty of care on a defendant 'only when it is the defendant who has 'created a risk' of harm to the plaintiff, including when 'the defendant is responsible for making the plaintiff's position worse.'' (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214.) But this no-duty-to-protect rule has exceptions; for example, 'a defendant may have an affirmative duty to protect the plaintiff from harm at the hands of a third party, even though the risk of harm is not of the defendant's own making.' (Id. at p. 215.) Such an affirmative duty to protect the victim from third-party harm can be triggered 'if that person is in what the law calls a 'special relationship' with either the victim or the person who created the harm.' (Id.) The kind of 'special relationship' between the defendant and the victim 'is one 'that gives the victim a right to expect' protection from the defendant.' (Id. at p. 216 [quoting Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619].) 'Special relationships also have defined boundaries. They create a duty of care owed to a limited community, not the public at large.' (Regents of University of California v. Superior Court, supra, 4 Cal.5th at p. 621.) Although relationships in general have advantages for each participant, 'many special relationships benefit the party charged with a duty of care.' (Id.) Here, as stated above, the court considers the extreme weather alleged in the FAC to be analogous to third-party harm. Based on the facts alleged in the FAC as a whole, the court concludes a special relationship of the kind that triggers an affirmative duty to protect, between Decedent and one or more of Defendant's employees, was likely created in connection with Decedent's participation in the sheep count, particularly his efforts to cache water. This duty obligated Defendant's employees to protect Decedent from the extreme heat, at a minimum by providing him with all the relevant information before permitting him to cache water on a day that would reach 120+ degree weather.

The court emphasizes the special relationship was not simply by virtue of Decedent's status as a volunteer. Rather, it is the specific facts of this case that triggers the duty, including the reliance Defendant's employees placed on Decedent to cache water, the expectation that Decedent would be treated like an employee pursuant to its own policies, and Decedent's age. The court also finds highly Calendar No.: Event ID:  TENTATIVE RULINGS

3135907  21 CASE NUMBER: CASE TITLE:  LISA CHANG AS SUCCESSOR IN INTEREST OF DONALD WHITE JR  37-2022-00040854-CU-PO-CTL relevant, both as to the special relationship and as to causation, the knowledge of Defendant's employees (withheld from Decedent) that extreme weather in the area of the sheep count had caused a death only weeks before Decedent's death, and that this death had triggered a DSO to be issued by Defendant's employee Ray Lennox, which closed late morning and afternoon use of the trail by the public from June 8, 2011 to September 30, 2021.

Thus, Plaintiff's allegations that Defendant's employees breached duties to Decedent by, among other things, failing to implement the DSO, failing to disclose the existence of the DSO to Decedent, and failing to make a determination on the exception request despite the DSO never being rescinded, are sufficient to survive a pleadings challenge on her negligence claim. (FAC, ¶¶18-26, 61-64.) Accordingly, the motion is denied as to the first cause of action for negligence.

Premises Liability To state a claim for premises liability under Government Code section 835, Plaintiff must plead and prove: (1) the State owned or controlled the property, (2) the property was in a dangerous condition at the time of the injury, (3) the dangerous condition created a reasonably foreseeable risk of the type of harm that occurred, (4) the State had notice of the condition for a long enough time to repair the condition, (5) the plaintiff was harmed, and (6) the condition was a substantial factor in causing Plaintiff's harm. (Gov. Code, § 835; see also CACI No. 1100.) A 'dangerous condition' is defined as 'a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent 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).) Here, Plaintiff alleges the 'dangerous condition' of the property and trail controlled by Defendant was 'the increased risk of heat-related injury and death to users of the Park and the Trail, as known to Defendant, created by the Excessive Heat Advisory in effect, the June 6 fatality, the need for the DSO, and the decision to issue the DSO.' (FAC, ¶ 70.) In effect, the alleged dangerous condition was extreme heat. But weather is not a condition 'of property' for purposes of Government Code section 835, just as it is not a 'condition' within the meaning of the Section 831.2 and 831.4 immunities. At best, it may be viewed in a similar way as third-party criminal conduct, which 'by itself, unrelated to the condition of the property, does not constitute a 'dangerous condition' for which a public entity may be held liable.' (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810.) Although a public entity may owe members of the public a duty 'not to maintain its premises in a condition that will increase the reasonably foreseeable risk that criminal activity will injure such individuals,' (Zelig v. City of Los Angeles (2002) 27 Cal.4th 1112, 1133.), '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.' (Id. at p. 1135.) None of the alleged causes of the increased risk of heat injury are defects 'in the property itself.' Thus, Plaintiff has not alleged a basis for liability under Government Code section 835.

Accordingly, the motion is granted as to the second cause of action for premises liability. Plaintiff has leave to amend.

The minute order is the order of the court.

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