Judge: Melvin D. Sandvig, Case: 24CHCV02606, Date: 2025-02-14 Tentative Ruling

Case Number: 24CHCV02606    Hearing Date: February 14, 2025    Dept: F47

Dept. F47

Date: 2/14/25

Case #24CHCV02606

 

DEMURRER TO THE ORIGINAL COMPLAINT

 

Demurrer filed on 11/15/24.

 

MOVING PARTY: Defendant State of California, acting by and through the California Highway Patrol (CHP)

RESPONDING PARTY: Plaintiff Christopher Jordan Gouveia

NOTICE: ok

 

Demurrer is to the 2nd cause of action:

            1.  Negligence – Motor Vehicle (against Walter Roosevelt Young and Nu Way Auto Dismantling, Inc. and Does 1-50)

            2.  Vicarious Liability, Respondeat Superior, Negligence (Pursuant to Government Code 820(a), 815.2, et seq.) (against State of California, Acting by and through the California Highway Patrol (CHP))

 

RULING: The demurrer is sustained without leave. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of a motor vehicle collision that occurred on 7/12/23 on the Antelope Valley Freeway at approximately 12:05 a.m.

 

On 7/11/23, in the Antelope Valley Freeway (SR-14), Defendant Walter Roosevelt Young (Young) was involved in a traffic collision with an unknown vehicle.  (Complaint ¶12).  The accident left Roosevelt’s vehicle disabled in the number 3 and 4 lanes of the freeway.  (Id. ¶13).  Plaintiff Christopher Jordan Gouveia (Plaintiff) alleges that a California Highway Patrol (CHP) officer was dispatched to investigate the traffic collision and the CHP officer left Young’s disabled vehicle in the road without warning signs (i.e., hazard lights, flares, or cones) to caution the public until a tow truck removed Young’s vehicle.  (Id. ¶¶22-24).  Just after midnight on 7/12/23, while riding a Suzuki motorcycle, Plaintiff collided with Young’s disabled vehicle.  (Id. ¶14).  The CHP officer remained at the scene from the time of arrival at the scene of Young’s initial collision through the conclusion of the investigation involving Plaintiff and Young.  (Id. ¶25).

 

On 7/18/24, Plaintiff filed this action against Young for Negligence - Motor Vehicle and against Defendant State of California, acting by and through the California Highway Patrol (CHP) for Vicarious Liability, Respondeat Superior, Negligence (Pursuant to Government Code 820(a), 815.2, et seq.).  Defense counsel called Plaintiff’s counsel on 11/14/24 to meet and confer regarding the issues the CHP has with Plaintiff’s complaint.  (See Da Silva Decl.).  Without being able to meet and confer, on 11/15/24, the CHP filed and served the instant demurrer to the 2nd cause of action in Plaintiff’s complaint.  Id.; (See also Reply).  Plaintiff has opposed the demurrer and the CHP has filed a reply to the opposition. 

 

ANALYSIS

 

Meet and Confer

 

The Court finds it questionable whether defense counsel adequately attempted to meet and confer before filing and serving the instant demurrer.  Attorney Da Silva indicates that the first and only effort to meet and confer was made on 11/14/24 and without discussing the matter, the CHP filed and served the demurrer the next day.  (See Da Silva Decl.; Reply).  Since the failure to meet and confer is not a basis to overrule a demurrer and since Plaintiff does not indicate that he would have been willing and/or able to amend the complaint to address the deficiencies noted in the demurrer, the Court will rule on the merits of the demurrer.  See CCP 430.41(a)(4); (Opposition, generally).

 

Standard for Demurrer

 

Among others, a demurrer may be based on the ground that a complaint fails to state facts sufficient to constitute a cause of action.  CCP 430.10(e).

 

All tort liability against public entities, such as the CHP, must be based on statute.  Government Code 815; Miklosy (2008) 44 C4th 876, 899.  Such statutory liability must be pled with factual particularity, including facts showing that no statutory immunity applies.  See City of Los Angeles (2021) 62 CA5th 129, 139; Nealy (2020) 54 CA5th 594, 602; Brenner (2003) 113 CA4th 434, 440. 

 

A demurrer may be sustained without leave to amend where the nature of the defect in the complaint, including the application of immunity, cannot be cured by amendment.  See Banis Restaurant Design, Inc. (2005) 134 CA4th 1035, 1044; Nealy (2020) 54 CA5th 594; Astenius (2005) 126 CA4th 472, 477.

 

2nd cause of action - Vicarious Liability, Respondeat Superior, Negligence (Pursuant to Government Code 820(a), 815.2, et seq.)

 

Plaintiff’s claim against the CHP arises from purported negligence on the part of the CHP officer who responded to and investigated the scene of Young’s initial accident. 

 

Duty is an essential element of any negligence based cause of action.  See Mikialian (1978) 79 CA3d 150, 158; Minch (2006) 140 CA4th 895, 900.  The existence of such a duty is a question of law for the court to decide.  Tarasoff (1976) 17 C3d 425, 434; Benavidez (1999) 71 CA4th 853, 859; Minch, supra at 900-901.

 

“[A]  public employee is liable for injury caused by his act or omission to the same extent as a private person,” except as otherwise provided by statute.  Government Code 820(a).  “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would have given rise to a cause of action against that employee,” unless "the employee is immune from liability.”  Government Code 815.2(a), (b).    

 

Generally, a person does not have a duty to control the conduct of another or to warn those endangered by such conduct.  Minch, supra at 901.  Additionally, a person who has not created a peril has no duty to come to the aid of another.  Williams (1983) 34 C3d 18, 23.  California courts have declined to find that police, or any public employee, owe a duty of care to unidentified members of the general public.  See Williams, supra at 23-24. Like the general public, CHP officers, are not responsible for stopping to help, for the initial problem that they chose to deal with and can only be held liable for creating a peril or increasing the risk of harm.  Minch, supra at 902.

 

For nonfeasance of a public employee to be negligent, the plaintiff must allege a special relationship between the alleged tortfeasor and the injured party.  Lugtu (2001) 26 C4th 703, 716; Mikialian, supra at 159; Williams, supra at 27-28; Minch, supra at 904, 906.  In the complaint, Plaintiff does not allege facts to support the existence of a special relationship between Plaintiff and the officer.  Nor does Plaintiff argue in the opposition that such a relationship existed.  Rather, although not alleged in the complaint, Plaintiff contends that the CHP and its employee/officer owed a duty based on the purported requirements in CHP POST Training and CALTRANS guidelines to secure the scene that the officer came upon.  (See Complaint ¶24 and generally; Opposition, p.4:6-7).  However, it has been held that guidelines are not law and do not create a duty.  See Lugtu, supra at 720.  Plaintiff further contends that the officer’s failure secure the scene increased the danger to the public traveling on SR-14 and created a dangerous condition for motorists.  (Opposition, p.4:7-9).  However, Plaintiff fails to explain how not securing the scene increased the risk created by the initial collision and Young’s disabled vehicle which was already in the roadway when the officer arrived.

 

Immunities

 

Even if Plaintiff could establish that the CHP officer who responded to the scene owed Plaintiff and duty, the CHP has established that it is immune from liability.  Where a public employee is immune from liability, the public employer is also immune from vicarious liability.  Government Code 815.2(b). 

 

A public employee is not liable for an injury resulting from the employee’s act or omission where the act or omission was the result of the exercise of discretion vested in the employee, regardless of whether that discretion was abused.  Government Code 820.2.  Discretionary immunity has been applied to decisions that officers make in the field.  Conway (2014) 231 CA4th 1005; Bonds (1982) 138 CA3d 314, 322 (“A decision to remove or not to remove a stranded vehicle, without more, is thus a discretionary action and comes within the immunity described in government code section 820.2.”); Posey (1986) 180 CA3d 836, 850.

 

Additionally, pursuant to Government Code 845, “[n]either a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.”  Plaintiff alleges that the officer failed to “provide an adequate ‘zone of safety’ around the prior accident involving [Young] . . . thereby causing a hazard to oncoming motorists and subsequently causing the subject incident involving Plaintiff.”  (Complaint ¶24).  Plaintiff fails to adequately explain why this immunity does not apply (i.e., immunity for failure to provide sufficient police protection).  Rather, Plaintiff merely argues, without citing any authority, that raising this immunity is “nonsensical in this matter” because the “immunity relates to the creation and establishment of police protection – i.e. a department, sub-station, or patrol route – not the failure of specific officers in their conduct.”  (See Opposition, p.5:16-19).

 

CONCLUSION

 

The demurrer is sustained without leave to amend.  While Plaintiff requests leave to amend, if the demurrer is sustained, Plaintiff fails to indicate how he can cure the defects in the complaint which appear to be fatal to the claim against the CHP based on the lack of duty and/or applicable immunities.