Judge: Nathan Vu, Case: 30-2022-01251120, Date: 2022-11-07 Tentative Ruling

Please Note: The hearing on this matter has been scheduled for 8:30 A.M.

Demurrer

Defendant County of Orange’s demurrer to the second cause of action of the Second Amended Complaint is SUSTAINED, with leave to file an amended complaint on or before 11/30/2022.

Defendant County of Orange demurs to the second 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 Code Civ. Proc., § 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 Code Civ. Proc., § 425.10, subd. (a).)

2nd Cause of Action

Plaintiff’s second 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.)

Therefore, to establish a dangerous condition of public property claim, Plaintiff must prove a dangerous condition on public property at the time of the injury; the condition proximately caused the injury; the condition created a reasonably foreseeable risk of the kind of injury sustained; and the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it. (See Gov. Code, § 835; Brenner v. City of El Cajon, supra, 113 Cal.App.4th at p. 439.) Every fact essential to establish statutory liability must be pleaded. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.)

In the second cause of action, Plaintiff alleges:

The County . . . negligently designed, constructed, controlled, maintained and managed the traffic flow, signing, bike lanes and mandated routes for pedestrian and bicycle operation, adjacent to The Location on Doheny Park Road, forcing bikes and pedestrians to use only the sidewalk and crosswalk of "The Location", in both directions, and in opposition to the direction of traffic on Doheny Park Road when traveling northbound, at The Location. This condition creates a substantial and inflated risk and highly dangerous condition for all persons crossing the entrances to California SR-1 from Doheny Park Road at The Location.

(SAC, ¶ 18.) Plaintiff further alleges that the County’s negligence in connection with the mandatory crosswalk route forced Plaintiff to operate his electric bicycle in the crosswalk in a direction opposite to the direction of vehicular traffic on the roadway, and that Defendants David Darby Raber and Kame Evonne Kanengieter did not expect Plaintiff to be riding opposite traffic, leading to Plaintiff’s damages. (SAC, ¶¶ 19-20.)

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.)

In addition, the SAC fails to plead, with the requisite specificity, in what manner the County’s negligent design, construction, control, maintenance, and management of the traffic flow, bike lanes and mandated routes for pedestrian and bicycle operation created a dangerous condition. (See Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [“to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity”]; see also Brenner v. City of El Cajon, supra, 113 Cal.App.4th at p. 439 [cause of action for dangerous condition of public property may not rely on generalized allegations but must specify in what manner the condition constituted a dangerous condition]; People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484–1486 [“we must not so liberally construe the allegations of the complaint so as to deny the defendant adequate notice to defend the case”].)

Additionally, Plaintiff does not allege that a County employee, whether known or unknown, negligently or wrongfully created a dangerous condition or that the County had actual or constructive notice of the dangerous condition with sufficient time to take measures to protect against the dangerous condition. The demurrer to the second cause of action must be sustained.

Defendant County of Orange shall give notice of this ruling.