Judge: William A. Crowfoot, Case: 21STCV46786, Date: 2022-12-07 Tentative Ruling

Case Number: 21STCV46786    Hearing Date: December 7, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

           On December 23, 2021, plaintiff Russell Patten, individually and as the successor-in-interest to and administrator of the Estate of Daniel Patten II (“Decedent”), along with plaintiff Jennifer Patten (collectively, “Plaintiffs”), filed this action against defendants City of Carson (“City”), County of Los Angeles (“County”) (also erroneously sued as “Los Angeles County Sheriff’s Department”), as well as other governmental entities, including demurring defendant the State of California, acting by and through the California Highway Patrol (“Defendant”), and the California Department of Transportation. 

The action arises from illegal street racing that occurred on December 25, 2020, on East 230th Street in the City of Carson.  Tony Tatum (“Tatum”) and Henry Hurtado (“Hurtado”), who are nonparties, were drag racing when they lost control of their vehicles and struck Decedent.  (Compl., ¶ 2.)  They were subsequently charged by the Los Angeles County District Attorney with murder and conspiracy to commit a crime.  Two other individuals, Alonzo Salazar (“Salazar”) and Gustavo Tarin-Cruz (“Tarin-Cruz”), were also charged with conspiracy to commit a crime for organizing, coordinating, and starting the race between Tatum and Hurtado.  

Plaintiffs bring this wrongful death and survival action and assert claims for negligence against Salazar and Tarin-Cruz.  Plaintiffs also assert causes of action for general negligence and dangerous condition of public property against the governmental entities.  

On March 30, 2022, County filed a demurrer and motion to strike.  On April 14, 2022, City filed a demurrer and motion to strike.  On July 18, 2022, the Court granted both County and City’s motions to strike and sustained their demurrers with leave to amend. 

On August 8, 2022, Plaintiffs filed the operative First Amended Complaint (“FAC”).  On September 30, 2022, Defendant filed a demurrer without motion to strike.  On October 27, 2022, Plaintiffs filed an opposition.  On November 2, 2022, Defendant filed a reply brief.  On November 9, 2022, the Court continued the hearing to allow Defendant to file a supplemental brief summarizing the arguments made in oral argument. 

Defendant demurs to Plaintiffs’ first and fifth causes of action for wrongful death and survival action, third cause of action for vicarious liability, and fourth cause of action for dangerous condition of public property.   

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)  

          Jessica Marek, defense counsel, declares that she sent a meet and confer letter to Plaintiff’s counsel on September 15, 2022, and engaged in a telephonic meet and confer with Plaintiff’s counsel on September 22, 2022.  The meet and confer requirement is satisfied.

First, Defendant argues that Plaintiffs fail to allege facts demonstrating that it or its employees owed a duty to Decedent.  Second, Defendant argues that Plaintiffs’ claim for vicarious liability is barred by the immunities provided by Government Code sections 815.2, 820.8, 845, 846, and 820.2.  Third, Defendant argues that Plaintiffs cannot allege a physical defect or that the property was being used with due care. 

Duty and Vicarious Liability

Defendant argues that it owed no duty to Decedent to protect or assist him because law enforcement officers do not owe a duty of care to protect or assist members of the public in the absence of a special relationship. 

Plaintiffs allege Defendant “negligently, carelessly, recklessly, intentionally, or unlawfully acted or failed to act so as to cause the death of [Decedent].”  (FAC, ¶ 20.)  Plaintiffs also allege that on or before the day Decedent died, Defendant and its employees were aware that there would be an annual car show, along with associated street racing.  (FAC, ¶ 29.)  Plaintiffs further allege that Defendant and its employees “had a duty to exercise reasonable care for the safety of the public (including decedent) and not to expose them to unreasonable risk of injury created by the illegal high-speed street racing associated with the car show.”  (FAC, ¶ 30.)  Plaintiffs additionally allege that Defendant’s employees “never intervened in any way in order to halt, prevent, or otherwise inhibit the street racing activities” and allowed it to occur by “failing to take obvious and reasonable steps within their power to prevent it.”  (FAC, ¶ 31.) 

The no-duty-to-protect rule embodies the principles that “one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203.)  “Such a duty may arise, however, if ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’”  (Ibid.)  These principles apply to law enforcement officers who, “like other members of the public, generally do not have a legal duty to come to the aid of [another] person.” (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 717; see also Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 859–860.)  

In Golick v. State (2022) 82 cal.App.5th 1127, 1146, the family members of hostages, who were murdered by a former patient of a mental health service provider, brought a wrongful death action against the county sheriff’s office and deputy sheriff.  The court of appeal sustained the county’s demurrer to the plaintiffs’ negligence claims because the plaintiffs did not allege facts indicating that a police officer assumed a duty toward the hostages that was distinct from or greater than his duty to other members of the public, and therefore did not plead that a “special relationship” existed.  The Golick court cited to Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 291–292, in which the court held that an officer's negligence liability could not be predicated on duty of care to the public at large, where the officer did not create the peril, voluntarily assume a special duty to protect the plaintiff, made no promise or statement to induce the plaintiff’s reliance, or increase the harm to the plaintiff that would have otherwise existed. 

Here, Plaintiffs’ allegations fail to allege sufficient facts to establish that Defendant owed Decedent a duty to prevent the street racing from occurring.  Accordingly, Defendant’s demurrer to Plaintiffs’ Third Cause of Action for Vicarious Liability is SUSTAINED without leave to amend.

Defendant also argues that the failure to allege a duty precludes Plaintiffs from alleging wrongful death and survival claims.  The elements of a cause of action for wrongful death are a tort, such as negligence, and resulting death.  (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 806.)  However, as discussed further below, because the Court finds that Plaintiffs sufficiently state a claim for dangerous condition of public property, that serves as a predicate for their wrongful death and survival action claims. 

Dangerous Condition

Defendant demurs to Plaintiffs’ Fourth Cause of Action on the grounds that Plaintiffs have not alleged a property defect.  In its supplemental brief, Defendant contends that Plaintiffs concede that Defendant failed to perform its law enforcement duties by failing to point out any specific physical defect. 

Plaintiffs argue in their opposition that Defendant should have prevented the parties from organizing a race, installed temporary physical barriers to make the street unsuitable for racing, provided warnings, installed barriers to protect spectators, or increased law enforcement presence.  (Opp., p. 9.)  Defendant argues that this is a list of law enforcement activities, which are not physical defects.  However, on demurrer, the Court evaluates the allegations in the complaint.  Here, Plaintiffs allege that: (1) Defendant failed to warn of, prevent, or correct a condition of property that creates a substantial risk of injury when the property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it would be used, on or immediately adjacent to, public property, and this failure to warn of the dangerous condition created a trap for motorists and pedestrians such as decedent; (2) a pedestrian trap existed because there were no protective barriers to protect pedestrians from out-of-control motor vehicles using the roadway for drag racing, (3) there were defects in the condition of the roadway, such as uneven pavement and/or potholes, which made it unsuitable for high-speed racing, (4) Defendant failed to restrict pedestrians from congregating and assembling on the roadway where racing was known to be occurring, (5) and Defendant failed to provide adequate traffic control devices and warnings alerting motorists to the presence of pedestrians.  (FAC, ¶ 38.) 

The alleged absence of protective barriers pertains to a physical characteristic of the road’s and is sufficient to constitute a dangerous condition of public property.  (See Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 800-801.)  Furthermore, Plaintiff alleges that Decedent was acting with reasonable care in a reasonably foreseeable manner.  (FAC, ¶ 39.) 

Because Plaintiffs have stated a cause of action for dangerous condition of public property, Defendant’s demurrer to the First, Fourth and Fifth Causes of Action are OVERRULED. 

IV.     CONCLUSION

Defendant’s demurrer to Plaintiffs’ Third Cause of Action is SUSTAINED without leave to amend.

Defendant’s demurrer to the First, Fourth, and Fifth Causes of Action is OVERRULED.  

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.