Judge: Stephen Morgan, Case: 23AVCV00591, Date: 2023-08-22 Tentative Ruling
Case Number: 23AVCV00591 Hearing Date: August 22, 2023 Dept: A14
Background
This is a personal injury action.
Plaintiff Brian Gonzalez (“Plaintiff”) alleges that on July 26, 2022 at
approximately 4:30 pm, he was driving westbound on Avenue M in the City of
Palmdale, when he was struck by a vehicle driven by Defendant Marina Edna Sabia
(“Sabia”) causing sever injuries to Plaintiff. Plaintiff believes that, at the
time of the incident, Sabia was employed by or were the agents of Defendants
County of Los Angeles (“COLA”), City of Palmdale (“COP”), and/or the State of
California.
On June 01, 2023, Plaintiff filed
his Complaint, alleging four causes of action for: (1) Negligence/Negligence
Per Se against Sabia; (2) Negligence/Negligence Per Se, Violation of Cal. Gov.
Code § 820(a) against Sabia; (3) Negligence/Negligence Per Se; Violation of
Cal. Gov. Code § 815.2(a) against COLA, COP, and State of California; and (4)
Negligence – Dangerous Condition of Public Property against COLA, COP, and
State of California.
On July 07, 2023, the People of
the State of California, acting by and through the Department of Transportation
Erroneously Sued as STATE OF CALIFORNIA, a governmental entity (“CA DOT”) filed
its Answer.
On July 21, 2023, two documents
were filed: (1) an Answer by COLA, and (2) this Demurrer by COP.
On August 08, 2023, Plaintiff
filed his Opposition.
On August15, 2023, COP filed its
Reply.
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I.
Legal
Standard
Standard for Demurrer – A demurrer for sufficiency tests whether the complaint states a cause of
action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal. App. 4th 740, 747.) ¿When
considering demurrers, courts read the allegations liberally and in context.¿ (Taylor
v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th
1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the
face of the pleading or by proper judicial notice.¿ (Cal. Code Civ. Proc. §
430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal. App. 3d
902, 905.)¿ Therefore, it lies only where the defects appear on the face of the
pleading or are judicially noticed.¿¿(Ibid.)¿¿The only issue involved in
a demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147
Cal.App.4th at 747.)¿¿¿¿¿¿¿¿¿¿
¿¿¿¿¿¿¿¿¿¿
A general demurrer admits the truth of all
factual, material allegations properly pled in the challenged pleading,
regardless of possible difficulties of proof.¿¿(Blank v. Kirwan (1985)
39 Cal.3d 311, 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s
allegations must be accepted as true for the purpose of ruling on the
demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123
Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations
expressing mere conclusions of law, or allegations contradicted by the exhibits
to the complaint or by matters of which judicial notice may be taken.¿¿(Vance
v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿A general
demurrer does not admit contentions, deductions, or conclusions of fact or law
alleged in the complaint; facts impossible in law; or allegations contrary to
facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39
Cal.3d at p. 318.)¿¿¿¿¿¿¿¿¿¿¿
¿¿¿¿¿¿¿¿¿¿¿
Pursuant to¿Code Civ. Proc.¿§430.10(e), the
party against whom a complaint has been filed may object by demurrer to the
pleading on the grounds that the pleading does not state facts sufficient to
constitute a cause of action.¿ It is an abuse of discretion to sustain a
demurrer without leave to amend if there is a reasonable probability that the
defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003)
31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿
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Discussion
Application – COP
demurs to the Third Cause of Action (Negligence/Negligence Per Se; Violation of
Cal. Gov. Code § 815.2(a)) and Fourth Cause of Action (Negligence – Dangerous
Condition of Public Property).
As an initial matter, counsel for
COP, Peter H. Crossin (“Crossin”), has included a footnote on the Third Cause
of Action stating: “Counsel for COP and Plaintiff are meeting and conferring on
this cause of action. COP will be providing Plaintiff with a declaration
attesting to the fact that Marina Edna Sabia was and is not an employee of COP.
Once provided, Plaintiff’s counsel agreed that COP will be dismissed from the
Third Cause of Action.” (Demurrer 6 fn. 1.) Plaintiff’s counsel, CaVone N.
Moore (“Moore”), has declared that her colleague, Randi Thompson (“Thompson”),
is to review the declaration from COP and, if Thomspon finds it sufficient, he
will dismiss the Third Cause of Action. (Decl. Moore ¶ 4.) Though the opposing
papers state (1) the Third Cause of Action may be sustained and (2) Plaintiff
stipulates to the dismissal of the Third Cause of Action against COP an directs
the Court and Plaintiff to Moore’s declaration, there is no presentation of
whether Thompson has determined the declaration to be sufficient in the
declaration. The Court inquires at the hearing.
Regarding the Fourth Cause of
Action, COP presents that public entity liability for property defects is not
governed by negligence, but by the specific provisions of the Government Code
regarding a dangerous condition of public property; Plaintiff’s sole remedy is
a claim for a dangerous condition of public property under Cal. Gov. Code §
835, and Plaintiff’s reliance on generalized allegations do not suffice.
Plaintiff’s Complaint does not
allege a statutory basis for the Fourth Cause of Action. The Court notes that
Plaintiff’s argument regarding the lack of a statutory basis is: “Prior to
discovery and the involvement of experts, it is virtually impossible for
Plaintiff to know every single fact that supports his claim and be able to
articulate the science behind what makes each condition dangerous, and in what
situations.” (Opp. 7:18-21.) While the Court does not believe this is a
sufficient rebuttal as public entity liability for property defects is based on
statute, as mentioned ante, COP has construed the Complaint as
attempting to state a statutory claim under done Cal. Gov. Code § 835. So too
does the Court.
COP’s Reply emphasizes the necessity of a statute and does not address that
it had construed Plaintiff’s Complaint as attempting to state a
statutory claim under done Cal. Gov. Code § 835. The Court disregards this
argument as it is inconsistent with the moving papers.
Under Cal. Gov. Code § 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 under
Section 835.2 a sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.
The Complaint does not address
whether COP had notice of the dangerous condition and a sufficient time prior
to the injury to have taken measures to protect against the dangerous
condition, and whether the dangerous condition was created by a negligent or
wrongful act or omission of an employee of the public entity within the scope
of their employment.
Plaintiff believes that he has
sufficiently pled that COP had actual/or constructive notice of the dangerous
condition through paragraph 45 which reads:
Defendants COUNTY OF
LOS ANGELES, CITY OF PALMDALE, STATE OF CALIFORNIA, and DOES 76-100, inclusive,
had actual and/or constructive notice of the dangerous condition for a long
enough time to have protected against the dangerous condition, but failed to
take any protective measures to safeguard the public, including Plaintiff.
Alternatively, the negligent and/or wrongful conduct of said Defendants’
employee(s) and/or agent(s) acting within the scope of their employment created
the dangerous condition.
Paragraph 45 includes two
conclusory statements. A general
demurrer does not admit contentions, deductions, or conclusions of fact or law
alleged in the complaint; facts impossible in law; or allegations contrary to
facts of which a court may take judicial notice.¿¿(Blank,¿supra,
39 Cal.3d at p. 318.)¿¿¿¿¿¿¿¿¿¿
COP’s Reply does not appear to
discuss notice, but rather focuses on the elements that are alleged to
constitute the dangerous condition and categorizes them as “generalized.” The
Court need not delineate these issues as an element under Cal. Gov. Code § 835
is absent.
As such, the Fourth Cause of
Action is not sufficiently pled.
The Court notes, for further
filings aspects related to dangerous condition of public property regarding
public entities:
(1) Cal.
Gov. Code § 830.4 provides:
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.
(2) Mixon
v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 130-131
provides the general principles concerning a dangerous condition of public
property:
Government Code
section 835 provides that 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 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.”
The element at issue
here is the existence of a dangerous condition. A “ ‘[d]angerous condition’ ”
is defined as “a condition of property that creates a substantial (as
distinguished from a minor, trivial or insignificant) risk of injury when such
property … is used with due care in a manner in which it is reasonably
foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).) “The
existence of a dangerous condition is ordinarily a question of fact but ‘can be
decided as a matter of law if reasonable minds can come to only one conclusion.’
” (Cerna, supra, 161 Cal.App.4th at p. 1347.)
“ ‘[A] claim alleging a dangerous condition
may not rely on generalized allegations [citation] but must specify in what
manner the condition constituted a dangerous condition.’ [Citation.] A
plaintiff's allegations, and ultimately the evidence, must establish a physical
deficiency in the property itself. [Citations.] A dangerous condition exists
when public property ‘is physically damaged, deteriorated, or defective in such
a way as to foreseeably endanger those using the property itself,’ or possesses
physical characteristics in its design, location, features or relationship to
its surroundings that endanger users.” (Cerna, supra, 161
Cal.App.4th at pp. 1347–1348, italics omitted.) “A public entity may be liable
for a dangerous condition of public property even where the immediate cause of
a plaintiff's injury is a third party's negligent or illegal act,” like a
motorist's negligent driving, “if some physical characteristic of the property
exposes its users to increased danger from third party negligence or
criminality. [Citation.] But it is insufficient to show only harmful third
party conduct, like the conduct of a motorist. ‘ “[T]hird party conduct by
itself, unrelated to the condition of the property, does not constitute a
‘dangerous condition’ for which a public entity may be held liable.” ’
[Citation.] There must be a defect in the physical condition of the property
and that defect must have some causal relationship to the third party conduct
that injures the plaintiff. [Citation.] ‘[P]ublic liability lies under
[Government Code] section 835 only when a feature of the public property has
“increased or intensified” the danger to users from third party conduct.’” (Id.
at p. 1348.)
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Leave to Amend
Leave to amend must be allowed where there
is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿(1976),
18 Cal.3d 335, 348.) While under California law leave to amend is liberally
granted, “leave to amend should not be granted where, in all probability, amendment would be futile.” (Vaillette
v. Fireman's Fund Ins. Co. (1993), 18 Cal. App. 4th 680, 685).¿ “A trial
court does not abuse its discretion when it sustains a demurrer without¿leave
to amend¿if either (a) the facts and the nature of the claims are clear and no
liability exists, or (b) it is probable from the nature of the defects and
previous unsuccessful attempts to plead that the plaintiff cannot state a
claim.” (Cantu v. Resolution Trust Corp.¿(1992)¿4 Cal.App.4th 857,
889.)¿¿¿¿
The Court allows leave to amend at this
time, but reemphasizes the requirements stated, ante, for bringing a
cause of action for dangerous condition of public property under Cal. Gov. Code
§ 835.
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Conclusion
The Court declines to rule on
Defendant City of Palmdale’s Demurrer to the Third Cause of Action at this
time.
Defendant City of Palmdale’s
Demurrer to the Fourth Cause of Action is SUSTAINED with leave to amend.