Superior Court of California

County of Los Angeles

Department 50

DWIGHT SUMMERFIELD, et al., Plaintiffs, vs. city inglewood, et al., Defendants.	Case No.:	21STCV30545
	Hearing Date:	August 2, 2022
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEFENDANT CITY OF INGLEWOOD’S DEMURRER TO FIRST AMENDED COMPLAINT

Background

On August 18, 2021, Dwight Summerfield, Patricia Summerfield, and Estate of Andrew Summerfield (collectively, “Plaintiffs”) initiated the present action by filing a Complaint against City of Inglewood (“Defendant”) and Does 1 through 50. Plaintiffs’ Complaint alleges the following causes of action: (1) Dangerous Condition on Public Property; and (2) Negligence.

On November 16, 2021, Defendant filed a Demurrer against Plaintiffs’ Complaint, arguing Plaintiffs’ causes of action are subject to Demurrer as each fails to allege facts sufficient to constitute a cause of action against Defendant, a public entity.

On May 2, 2022, Defendant’s Demurrer came before the Court for hearing. Following argument, the Court sustained Defendant’s Demurrer to Plaintiffs’ causes of action, with leave to amend. The Court ordered Plaintiffs to file and serve a First Amended Complaint within fifteen days of the date of the Court’s Order.

On May 20, 2022, Plaintiffs filed the operative First Amended Complaint. Plaintiffs’ First Amended Complaint is advanced against Defendant and Does 1 through 50, and continues to allege the following two (2) causes of action: (1) Dangerous Condition of Public Property; and (2) Negligence.

Plaintiffs’ First Amended Complaint alleges as follows. Plaintiffs Dwight Summerfield and Patricia Summerfield are the parents of Andrew Summerfield (“Decedent”). (First Amended Complaint (“FAC”), ¶¶ 5-7.) On January 5, 2021, Decedent drove to Darby Park in Inglewood, California, for the purposes of playing basketball. (Id. ¶ 12.) Subsequently, while Decedent was sitting in his vehicle within the Darby Park parking lot, Decedent was shot and killed by an unknown person. (Ibid.) Plaintiffs allege Defendant owned, maintained, supervised, handled, and/or controlled Darby Park. (Id. ¶¶ 8, 14.) Plaintiffs allege, while Defendant had actual or constructive knowledge of multiple shootings which have previously taken place within Darby Park as well as the parking lot, Defendant failed to install surveillance cameras within Darby Park or the parking lot, thereby rendering Darby Park and the adjacent parking lot a dangerous condition which presents “attractive opportunities to the criminal element of society”. (Id. ¶¶ 18-24.)

On June 20, 2022, Defendant filed a Demurrer against Plaintiffs’ First Amended Complaint, arguing Plaintiffs’ causes of action fail to state facts sufficient to constitute a cause of action.

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

Discussion

Defendant demurs to Plaintiffs’ First Cause of Action for “Dangerous Condition on Public Property” and Plaintiffs’ Second Cause of Action for “Negligence” on the ground Plaintiffs’ causes of action fail to allege facts sufficient to constitute a cause of action. ((Code Civ. Proc., § 430.10, subd. (e).)

A. First Cause of Action – Dangerous Condition on Public Property

Relevantly, the Court notes Plaintiffs’ First Cause of Action for “Dangerous Condition on Public Property” was previously scrutinized by this Court, upon consideration of Defendant’s prior Demurrer to Plaintiffs’ original Complaint, on approximately May 2, 2022. There, the Court noted, as Defendant is a governmental entity, the Government Claims Act governs “[t]he nature and extent of a public entity’s liability for an injury suffered on its property”. ((Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129.) Further, as Plaintiffs’ First Cause of Action concerns Defendant’s liability with respect to an alleged dangerous condition of public property, the Court recognized the relevance and applicability of Section 835 of the Government Claims Act. ((Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829 [holding, 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.”].)

The Court, thereafter, outlined the required elements with respect to a cause of action under Government Code section 835. The Court noted, Section 835 of the Government Claims Act provides: “ ‘Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that [1] the property was in a dangerous condition at the time of the injury, [2] that the injury was proximately caused by the dangerous condition, [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [4] 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 [defining actual and constructive notice] a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.’ ” (Metcalf, supra, 42 Cal.4th at p. 1129.)

The Court recognized, upon Defendant’s prior Demurrer, the parties’ disputed whether or not the original Complaint sufficiently alleged facts establishing the first element—that is, whether the Darby Park parking lot “was in a dangerous condition at the time of the injury”. ((Ibid. .)

Upon review of Plaintiffs’ original Complaint, the Court recognized Plaintiffs alleged the Darby Park parking lot “was in a dangerous condition at the time of [Decedent’s] . . . injury” due to three (3) articulated reasons. ((Ibid. .) First, Plaintiffs alleged the Darby Park parking lot “was in a dangerous condition” because Defendant failed “to provide any adequate precautions including, but not limited to, attendants, control measure, and/or security.” (Original Complaint (“Compl.”), ¶ 23(a).) Second, Plaintiffs alleged the Darby Park parking lot “was in a dangerous condition” because Defendant failed “to provide any adequate warning about the dangerous condition.” (Id. ¶ 23(c).) Lastly, Plaintiffs alleged the Darby Park parking lot “was in a dangerous condition” because Defendant failed “to provide camera in the Darby Park parking lot.” (Id. ¶ 23(b).)

Following a thorough analysis, the Court ultimately found the allegations within Plaintiffs’ Complaint were insufficient to properly demonstrate the Darby Park parking lot “was in a dangerous condition at the time of [Decedent’s] . . . injury.” (Gov. Code, § 835.) Initially, and with respect to Plaintiffs’ first allegation (Defendant failed to provide “adequate precautions” such as “attendants control measures and/or security”), the Court found Defendant’s failure to provide adequate attendants and security could not form a basis for liability because Defendant is immune from liability arising from its failure to provide security or supervision upon the Darby Park parking lot. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [“Although the government may assume responsibility for providing adequate police protection against third party violence, this does not create a legal duty that normally will give rise to civil liability. In this and in other jurisdictions, it is well established that public entities generally are not liable for failing to protect individuals against crime.”].) Additionally, to the extent Plaintiffs contended the failure to authorize other “precautions” constituted a dangerous condition, the Court found such was vague. Secondly, with respect to Plaintiffs’ second allegation (Defendant failed “to provide adequate warning about the dangerous condition”), the Court found Defendant’s alleged failure to warn of criminal activity in the Darby Park parking lot could not form a basis for liability because the California Supreme Court has expressly held that a public entity, such as Defendant, has “no duty to warn against criminal conduct.” (Hayes v. State of California (1974) 11 Cal.3d 469, 472; Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 814 [“Appellants also allege that respondents’ liability may be predicated on a failure to provide warnings regarding the possible unauthorized and/or criminal use of the beach. This particular contention was refuted in [Hayes]”].) However, unlike the Court’s findings with respect to the first and second allegations, the Court found Plaintiffs’ third allegation concerning the absence of security cameras might provide a basis for liability against Defendant under Government Code section 835. (Gov. Code, § 835.)

The Court disagreed with Defendant’s contention that the absence of security cameras upon public could never constitute a dangerous condition under Government Code section 835. (Gov. Code, § 835.) The Court noted, while “ ‘[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’ ” (Zelig, supra, 27 Cal.4th at p. 1134), liability may be imposed where “an unreasonable risk of harm is created by a combination of defect in the property and acts of third parties.” (Hayes, supra, 11 Cal.3d at p. 472.) The Court found guidance in Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484 (Slapin), where the underlying plaintiff was assaulted and severely injured by an unknown assailant while within a parking lot belonging to Los Angeles International Airport. (Slapin, supra, 65 Cal.App.3d at p. 486.) The Court of Appeal in Slapin found the trial court erred by sustaining the involved defendant’s Demurrer without leave to amend because the underlying plaintiff’s complaint sufficiently suggested that a defect of the property, specifically an absence of proper lighting, contributed to the assault, in addition to the conduct of the third-party assailant (in other words, a sufficient combination of a defect of property and the act of a third party created an unreasonable risk of harm). (Id. at p. 490.) The Court of Appeal in Slapin reasoned, it is a “matter of common knowledge” that “a mugger thrives in dark public places” and “[i]f defendant so poorly lighted the parking lot as to create a substantial risk of muggings, plaintiffs may be able to establish the elements of a cause of action under section 835.” (Id. at p. 488.) The Court of Appeal in Slapin stated, the underlying plaintiff was, at the very least, entitled to amend the complaint for the purposes of proving “that the lighting of the parking lot created a substantial risk of a criminal assault and thus constituted a dangerous condition . . . .” (Ibid.)

This Court recognized, similar to Slapin, Plaintiffs’ original Complaint suggested a combination of a defect of the property (absence of surveillance cameras) and the conduct of the third-party unidentified aggressor created an unreasonable risk of harm upon the Darby Park parking lot. However, the Court found Plaintiffs’ original Complaint to be insufficient as Plaintiffs failed to plead facts demonstrating why the absence of surveillance cameras within the Darby Park parking lot created a substantial risk of Decedent’s shooting as opposed to a minimal risk of Decedent’s shooting. The Court found that Plaintiffs could amend the Complaint to address this concern.

Now, after review of Defendant’s Demurrer to Plaintiffs’ First Amended Complaint, the Court finds that Plaintiffs have not sufficiently alleged facts to cure the prior defect. Although, under Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance Company (2021) 70 Cal.App.5th 341, 353, the Court “assume[s] the truth of all facts properly pleaded,” the Court does not find that Plaintiffs have set forth allegations that show that the lack of surveillance cameras created a substantial risk of Decedent’s shooting. Plaintiffs’ First Amended Complaint alleges “there have been multiple shooting[s] at Darby Park” prior to Decedent’s shooting, including on December 8, 1997 as well as October 15, 2012. (FAC, ¶¶ 18-20.) Plaintiffs’ First Amended Complaint further alleges, “[a]t the time of the shooting, there were no cameras in the Darby Park parking lot….” (Id. ¶ 21.) Plaintiffs additionally allege that the absence of cameras within Darby Park “present[s] attractive opportunities to the criminal element of society which renders the Darby Park parking lot attractive to criminal activities and inherently dangerous.” (Id. ¶ 22.) Plaintiffs allege, as a result of the absence of surveillance cameras within Darby Park, Decedent was shot and killed. (Id. ¶ 24.) The Court finds these allegations insufficient to correct the defect previously identified within Plaintiffs’ original Complaint; the new allegations do not demonstrate that the absence of surveillance cameras within Darby Park created a substantial risk of injury to Decedent, thereby rendering Darby Park a dangerous condition.

For the foregoing reasons, Defendant’s Demurrer to Plaintiffs’ First Cause of Action for “Dangerous Condition of Public Property” is sustained without leave to amend.

B. Second Cause of Action – Negligence

Defendant, additionally, demurs to Plaintiffs’ Second Cause of Action for “Negligence” on the ground Plaintiffs have failed to allege facts sufficient to constitute a cause of action. Specifically, Defendant contends, because Plaintiffs’ Second Cause of Action for “Negligence” is “predicated” upon Plaintiffs’ First Cause of Action for “Dangerous Condition of Public Property,” and because Plaintiffs’ First Cause of Action “fails as a matter of law,” Plaintiffs’ Second Cause of Action must similarly fail. The Court agrees. Therefore, Defendant’s Demurrer to Plaintiffs Second Cause of Action for “Negligence” is sustained without leave to amend.

Conclusion

Defendant’s Demurrer to Plaintiffs’ First Amended Complaint is sustained without leave to amend. The Court orders Defendant to file and serve a proposed judgment of dismissal within 20 days of the date of this order. ((Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 186 [“An order sustaining a demurrer without leave to amend is not a final judgment; a judgment of dismissal follows such an order as a matter of course.”].)

Defendant is ordered to provide notice of this order.

DATED: August 2, 2022

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Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court