Judge: Michael E. Whitaker, Case: 22STCV23955, Date: 2023-03-01 Tentative Ruling

Case Number: 22STCV23955    Hearing Date: March 1, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Raquel Boyadjian (Plaintiff) sued Defendant City of Monrovia (Defendant) based on injuries Plaintiff alleges she sustained when her foot got caught on a pothole causing her to trip and fall while jogging on a walking path in a park. 

Defendant demurs to the first amended complaint (FAC) which states a cause of action of dangerous condition of public property under Government Code section 835 against Defendant.  Plaintiff opposes the demurrer.  Defendant replies.  

JUDICIAL NOTICE

            The Court grants Defendant’s requests for judicial notice.

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute.  (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)  “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)  To state a claim against a public entity, “every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.”  (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) 

Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.) A “dangerous condition” is a condition of public property that “create[s] 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 was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.)

Per Section 835, “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 . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.)

Here, Defendant argues it is immune from liability under Government Code section 831.4, otherwise known as trail immunity. 

A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of:

(a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a (1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways.

(b) Any trail used for the above purposes.

(Gov. Code, § 831.4, subds. (a)-(b).)  “The trail immunity provided in subdivision (b) of the statute extends to trails that are used for the activities listed in subdivision (a), and to trails that are used solely for access to such activities.  The immunity applies whether or not the trail is paved.”  (Reed v. City of Los Angeles (2020) 45 Cal.App.5th 979, 982.)  

Defendant argues that the path which Plaintiff allegedly tripped on would be considered a trail subject to the immunity of Section 831.4.  Defendant highlights the following portion of Plaintiff’s FAC in support of its contention:

• “On or about November 18, 2020 at approximately 5:00 p.m., Plaintiff was jogging on walking path in the PARK, when her foot got caught on a pot hole and she tripped and fell . . . .”

(FAC, ¶ 9.)  Defendant argues that Plaintiff’s allegations she was participating in the activity of jogging, on a trail used for recreational activity of jogging, within a recreational park, establish as a matter of law Defendant is immune under Section 831.4.

            At this stage of the litigation, the Court disagrees with Defendant’s contention.  In particular, the Court finds that the allegations set forth in the FAC do not indicate whether the “walking path” provided “access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas.”  “Whether the property is a trail depends on a number of considerations, including accepted definitions of the property, the purpose for which the property is designed and used, and the purpose of the immunity statute.”  (Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1078–1079 [cleaned up].) 

            In particular, the Court is unable to determine if the park (with the “walking path”) in question is a recreational area.  Thus, without any further allegations describing the nature and characteristics of the subject park and walking path, the Court cannot determine, based on the face of the FAC, that the path at issue is a trail which qualifies for immunity under Section 831.4 as a matter of law.  

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to Plaintiff’s FAC and orders Defendant to file and serve an answer to the FAC within 10 days of the hearing.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.