Vargas vs. Hernandez

The City first argues that the SAC fails to state a cause of action for dangerous condition of public property because the allegations admit that Defendants Hernandez and Ortiz were not driving with due care, as it is alleged that they failed to yield the right of way and were speeding, respectively. “ ‘ “If [] it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not ‘dangerous’ within the meaning of section 830, subdivision (a).” ’ ” (Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 754-755.) Here, Plaintiff is alleging that the risk of harm was created not only by Defendants Hernandez and Ortiz’s driving but by the design of the unmarked crosswalk. The SAC

on its face does not show that Plaintiff’s damages were caused only by Defendants Hernandez and Ortiz and “[a] public entity may be liable for a dangerous condition of public property even where the immediate cause of plaintiff's injury is a third party's negligent or illegal act . . . if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1348.) Thus, the Court finds that the City’s first argument fails.

The City next argues that the SAC contains only general and conclusory allegations without identifying any physical characteristics that amount to a dangerous condition. The City also argues that the alleged failures to install traffic controls or implement safety procedures without any specific facts are insufficient to establish a dangerous condition. These arguments also lack merit. Plaintiff has alleged the existence of screened sightlines at the intersection created by the approach geometry and parallel-lane configuration, along with the failure to protect pedestrians from traffic despite encouraging pedestrians to use the unmarked crosswalk by way of curb cuts, ramps, and paved pedestrian paths. However, these allegations are neither general nor conclusory.

The City cites to Cerna in support of a finding that the allegations are insufficient to show a dangerous condition, but Cerna is distinguishable. In Cerna, the plaintiff was struck while walking in a crosswalk and alleged that the crosswalk was dangerous because it was painted white, not yellow, lacked adequate signage or a traffic signal, had no crossing guards, had no blinking lights, and was not painted with diagonal or longitudinal lines. (161 Cal.App.4th at p. 1348.) The Court finds Cerna is distinguishable from the instant case, where Plaintiff is alleging that it was the lack of any crosswalk at all, at a location where pedestrians were invited to cross, that created or contributed to the dangerousness of the intersection.

The City further claims that it is immune from Plaintiff’s claim under Government Code sections 830.4 and 830.8. Section 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.” Section 830.8 provides: “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code.

Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.”

Here, Plaintiff alleges that the lack of a crosswalk where pedestrians were invited to cross, combined with the lack of pedestrian refuge, long exposure time, typical approach speeds, and screened sightlines, created the dangerous condition. (SAC ¶ 69.) Thus, Plaintiff is not alleging a dangerous condition “merely” because of the failure to provide signals, signs, or roadway markings. Further, the allegations could support a finding that a roadway marking was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to or anticipated by a person exercising due care. This pleading is sufficient to survive demurrer.

Lastly, the City argues that the new allegations of a concealed trap are barred by the Government Claims Act, as Plaintiff’s tort claim reveals no allegation of a concealed trap relating to a dangerous condition of public property. A complaint against a public entity “ ‘is vulnerable to demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’ ” (Stockett v.

Assoc. of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447.) “The claim, however, need not specify each particular act or omission later proven to have caused the injury. [Citation.] A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an ‘entirely different set of facts.’ ” (Ibid.)

The City’s request for judicial notice of Plaintiff’s tort claim is GRANTED. (Evid. Code, § 452(h).)

Plaintiff’s tort claim states that Plaintiff was struck due to the unsafe design of the roadway and/or intersection at McFadden Avenue and Gates Street and that the location lacked appropriate traffic control devices of pedestrians. It further states that the geometry of the roadway, curvature of the roadway, lack of warning, inadequate lighting, and inability to see other vehicles and pedestrians were physical features of the location which made it dangerous and the roadway created a trap for motorists and pedestrians. Despite the City’s contentions, the Court finds that the theory of a concealed trap is fairly reflected in Plaintiff’s written tort claim.

Based on all the above, the demurrer to the SAC is OVERRULED in its entirety.

Plaintiff to give notice.

2. 30-2025-01503814 1. Case Management Conference 2. Demurrer-Other Memory Lane Homeowners Defendant Andrew Robert Grace (“Defendant”) demurs to the Complaint of plaintiff Memory Lane Association vs. Grace Homeowners Association (“Plaintiff”).

As an initial matter, the Court notes that Defendant has not filed a meet and confer declaration as required under Code of Civil Procedure section 430.41. The Court further notes that Defendant has not filed any proof of service of the moving papers in violation of Cal. Rules of Court, rule 3.1300(c). Defendant is admonished that the failure to fully comply with all applicable statutes and rules in the future could result in a motion being taken off calendar or denied and the imposition of sanctions, if appropriate.

The Court further notes that Plaintiff did oppose the demurrer, and served its opposition on Defendant, a self-represented litigant, by electronic service. Service upon a self-represented litigant by electronic service is only permitted when that party has served notice that the party accepts electronic service and filing the notice with the Court or manifested affirmative consent through electronic means with the Court or the Court’s electronic filing service provider. (Code Civ. Proc., § 1010.6(c); Cal. Rules of Court, rule 2.251(b)(1).) There are no filings showing that Defendant has consented to electronic service or manifested affirmative consent. Absent such consent, Defendant must be served by nonelectronic means.

Defendant argues that the County of Orange has no jurisdiction over the property, Plaintiff has no claim or jurisdiction over the property, and Plaintiff’s counsel have no jurisdiction over the property. None of Defendant’s arguments raise a colorable argument that the Court has no jurisdiction over the subject matter of this action, which concerns real property located within this County. Thus, the demurrer on lack of jurisdiction grounds is OVERRULED.

Defendant argues that the Complaint is uncertain because documents from the City of Aliso Viejo are not attached, incorrect portions of the subject CC&Rs are cited, no clear property line is stated,