Judge: Nathan Vu, Case: 30-2022-01251120, Date: 2022-10-31 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Demurrer
Defendant State of California, Department of Transportation’s demurrer to the third cause of action of the Second Amended Complaint is SUSTAINED, with leave to file an amended complaint on or before 11/30/2022.
Defendant State of California, Department of Transportation’s (State) demurs to the third cause of action of Plaintiff Guy Sumrall’s Second Amended Complaint (SAC).
Standard for Demurrer
In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)
Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)
Although courts should take a liberal view of inartfully drawn complaints, (see Civil Proc. Code, § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Civil Proc. Code, § 425.10, subd. (a).)
3rd Cause of Action
Plaintiff’s third cause of action makes out a claim for public entity liability based on a known dangerous condition of public property, pursuant to Government Code section 835(a).
Under the Government Claims Act (Act), “’[a] public entity is not liable for an injury,’ ‘[e]xcept as otherwise provided by statute.’” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347, citing Gov’t Code, § 815, subd. (a); see Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897 [“Under the Government Claims Act, there is no common law tort liability for public entities in California; instead such liability must be based on statute.”], citation omitted.) The Act declares a general rule of immunity, contained in Civil Procedure Code section 815, and then sets out exceptions to that rule. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757.)
As the Supreme Court explained:
The Government Claims Act [] provides for direct liability on the part of public entities for injuries caused by maintaining dangerous conditions on their property when the condition “created a reasonably foreseeable risk of the kind of injury which was incurred” and either an employee’s negligence or wrongful act or omission caused the dangerous condition or the entity was on “actual or constructive notice” of the condition in time to have taken preventive measures. A dangerous condition is one that “creates a substantial . . . risk of injury” when the property is “used with due care in a manner in which it is reasonably foreseeable that it will be used.”
(Hampton v. County of San Diego, supra, 62 Cal.4th at pp. 347–348, citations omitted.) “Property is not ‘dangerous’ within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.)
Plaintiff alleges that the State “negligently designed, constructed, controlled, maintained and managed the traffic flow, signing, sidewalks and crosswalks within the mandated routes for pedestrian and bicycle operation, at The Location on Doheny Park Road, in the northbound directions, and in opposition to the direction of traffic on Doheny Park Road, creating a highly dangerous condition . . . .” (SAC, ¶ 28.) The SAC further alleges that the State should have installed traffic signs, warning signs, and/or regulatory signs and controls and that its failure to do so resulted in an inherent highly dangerous condition that caused damage to Plaintiff. (SAC, ¶¶ 28, 31.)
As a matter of law, the absence of a traffic signal or flashing beacon does not create a dangerous condition. Under Government Code section 830.4, “[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, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.” (Gov’t Code, § 830.4.)
A public entity may be liable, however, where a dangerous condition “exists for reasons other than or in addition to the ‘mere[ ]’ failure to provide such controls or markings.” (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 135, italics original, quoting Washington v. City and County of San Francis co (1990) 219 Cal.App.3d 1531, 1535.) The State is immune from liability based on the absence of traffic signs, warning signs, and/or regulatory signs and controls unless the signs were “necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.” (Gov’t Code, § 830.8.)
Plaintiff has not pled facts sufficient to make out a hidden, dangerous condition. Further, the SAC does not allege that any State employee, whether known or unknown, acted in negligent or wrongful manner, or that the State had actual or constructive notice of the dangerous condition with sufficient time to take measures to protect against the dangerous condition. (See Gov’t Code, § 835.) The demurrer must be sustained.
Motion to Strike Portions of Second Amended Complaint
Defendant State of California, Department of Transportation motion to strike a portion of the Second Amended Complaint is GRANTED.
The Court orders that any amended complaint filed shall not include reference to “and 840.2(a)” and “Gardner v. City of San Jose (1967 1st Dist. 248 Cal.App.2d 798)”.
The State moves to strike the portion of the SAC that states “and 840.2(a)” and “Gardner v. City of San Jose (1967 1st Dist. 248 Cal.App.2d 798)”. (See SAC at p. 9:9-10.)
Standard for Motion to Strike
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Civil Proc. Code, § 436.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Civil Proc. Code, § 431.10, subd. (b).)
Striking Irrelevant Matters
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.” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.)
Plaintiff concedes that the SAC’s reference to “840.2(a)” and “Gardner v. City of San Jose (1967 1st Dist. 248 Cal.App.2d 798)” are errors because Section 840.2(a) is irrelevant to the third cause of action and Gardner v. City of San Jose (1967) 248 Cal.App.2d 798 does create a basis for public entity liability. The court will therefore grant the motion to strike.
Defendant State of California, Department of Transportation shall give notice of this ruling.