Judge: Randall J. Sherman, Case: 2023-01314680, Date: 2023-07-21 Tentative Ruling

Defendant T-Mobile USA, Inc.’s Demurrer to Plaintiffs Dylan Van Iwaarden and Phi Le’s Complaint for Damages is sustained with 10 days leave to amend.

The common law firefighter’s rule bars claims by firefighters against a person who negligently causes a fire, because that person does not owe a legal duty of care to firefighters who are injured in responding to the fire.  The California Supreme Court explained, “Where the defendant's negligence, whether active or passive, creates an apparent risk, which is of the type usually dealt with by firemen, and which is the cause of the fireman’s presence, and which is the direct cause of the fireman’s injury, the defendant is not liable to the fireman.”  Lipson v. Superior Court (1982) 31 Cal. 3d 362, 367.  Plaintiffs contend that the firefighter’s rule does not bar recovery for independent acts of misconduct which were not the cause of the plaintiff’s presence on the scene, citing Donohue v. San Francisco Housing Authority (1993) 16 Cal. App. 4th 658, 663.  Plaintiffs contend that their injuries were caused by defendants’ improper design, construction and control of their equipment.  However, that alleged negligence was precisely the reason the fire allegedly occurred and the reason plaintiffs were at the scene of the fire.  Thus, plaintiffs do not allege any independent act by defendant T-Mobile as the cause of plaintiffs’ injuries separate and apart from the alleged negligence that caused the fire.  Plaintiffs also rely on Vasquez v. North County Transit Dist., 292 F.3d 1049 (9th Cir. 2002).  There, however, a police officer was injured by a railroad crossing gate while responding to a traffic jam.  The court explained, “The main rationale behind the independent cause exception is that a fireman does not assume every possible risk he may encounter while engaged in his occupation.  A police officer stands in the same posture as any citizen venturing onto the land of another; his occupation compels him to face felons or fires, not rickety roofs or faulty fences.”  Id. at 1055.  Here, plaintiffs allege their injury was caused by the exact thing to which they responded, not some unexpected risk.  For example, the Complaint asserts in ¶55, “Because Defendants, and each of them, negligently set the Silverado Fire and/or negligently allowed the Silverado Fire to be set and cause the harm alleged in this complaint, Defendants, and each of them, are liable for the Plaintiffs’ serious bodily injuries, scarring, disfigurement, pain and suffering, anxiety, emotional anguish, loss of enjoyment of life and other damages.”  Accordingly, plaintiffs fail to allege facts constituting any exception to the bar of the firefighter’s rule.

Defendant T-Mobile also argues that plaintiffs’ claims are barred by the two-year statute of limitations set forth in CCP §335.1 for personal injury claims.  Plaintiffs’ claims accrued on October 26, 2020, the day of the Silverado Fire, but plaintiffs filed their Complaint more than two years later, on March 21, 2023.  Plaintiffs contend the delayed discovery doctrine applies.  To invoke that doctrine, a plaintiff must plead facts which show (1) the time and manner of discovery of the fact of plaintiff’s injury or its cause, and (2) the inability to have made an earlier discovery despite reasonable diligence.  Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal. App. 3d 292, 297.  Plaintiffs’ Complaint here fails to do this.  Thus, plaintiffs fail to allege facts that could give rise to the delayed discovery exception to the statute of limitations defense.

Defendant T-Mobile is ordered to give notice of the ruling unless notice is waived.