Judge: Nick A. Dourbetas, Case: 2022-01240316, Date: 2022-10-28 Tentative Ruling
1. Demurrer to Complaint
2. Case Management Conference
Defendant State of California, acting by and through the Department of Transportation’s (hereinafter, “CalTrans”) demurrer to first amended complaint is OVERRULED.
CalTrans shall answer the first amended complaint within 15 days.
The first amended complaint alleges only the first cause of action for dangerous condition of public property against CalTrans.
The first cause of action is not uncertain and states sufficient facts to constitute a cause of action for dangerous condition of public property. (See Gov. Code, §§ 835, 840.2, 815.2; see also FAC ¶¶ 12-33.)
CalTrans does not dispute Government Code section 835 provides for public entity liability arising from a dangerous condition of public property.
As for Government Code sections 840.2 and 815.2—contrary to CalTrans’ arguments, a public employee can be held liable for creating a dangerous condition as specified in Government Code section 840.2. (See Gov. Code, § 840.2 [“An employee of a public entity is liable for injury caused by a dangerous condition of public property if ...” (listing conditions)]; see also FAC ¶¶ 28-29 [alleging requisite conditions for public employee liability under section 840.2].) And CalTrans can be vicariously liable for the same under section 815.2, subdivision (a). (Gov. Code, § 815.2, subd. (a).)
Government Code section 840 does not provide otherwise. By its very language, the immunity it provides does not apply to the statutory public employee liability provided for in section 840.2. (See Gov. Code, § 840 [“Except as provided in this article, a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.”]; see also id., § 840.2.)
Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383 (Longfellow) also does not provide otherwise, because nothing in Longfellow shows that the plaintiffs in that case alleged public employee liability under section 840.2, as the plaintiff has done here, or that the Longfellow had any need to consider this express statutory exception to section 840 in rendering its opinion.
As for the reference to Government Code section 820, subdivision (a), this merely tacks on to the statutory basis for public employee liability and the public employer’s vicarious liability for the same discussed above. (See Gov. Code, §§ 840.2, 815.2.)
As for the alleged failure to warn (see FAC ¶ 18), this is just generally alleged as a part of the subject dangerous condition of public property at issue, for which sections 840.2, 815.2, and 835 already provide statutory grounds for liability. Nothing in Government Code section 830.8 suggests that the failure to warn must be alleged as a separate cause of action, and the mere reference to section 830.8 does not somehow render this claim uncertain.
As for the passing reference to Government Code section 815.6, this also does not render the claim uncertain, particularly given that the more specific allegations under the first cause of action clearly and conspicuously show it is based on a dangerous condition of public property (see, e.g., FAC ¶¶ 12-30), as opposed to any failure to comply with a mandatory duty imposed by an enactment under section 815.6.
Furthermore, any ambiguities caused by the passing references to sections 840.8 and 815.6 “can be clarified under modern discovery procedures.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) The mere reference to these sections does not render the claim so uncertain that CalTrans cannot reasonably respond.
Moving party shall give notice.