JOSE GUADALUPE VAZQUEZ, et al. v. MEGA GLOBAL, LLC, et al.

observed him fall and sustained injuries contemporaneously as the accident occurred. (Compl., at p. 4-5.) Plaintiffs further allege that Defendants City, County, and State are responsible for the injuries due to their failure to maintain said public sidewalk in a safe condition, including, but not limited to, their failure to give adequate warning of the unsafe conditions that existed. Furthermore, based on information and belief, Plaintiffs allege that Defendants’ conduct in creating, causing, approving, maintaining, and permitting with actual or constructive knowledge the unsafe condition of a public sidewalk located at or near the subject area where Plaintiff Jose fell, caused and/or contributed to his injuries and to the damages of Plaintiffs. (Ibid.)

Now at issue before the Court is Defendant City’s Demurrer to Plaintiffs’ Complaint pursuant to Code of Civil Procedure section 430.10, subdivisions (a), (e), and (f).

A demurrer tests the legal sufficiency of the complaint. (Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 367.) Under Section 430.10, subdivision (e), a party may challenge a pleading that does not state facts sufficient to constitute a cause of action.

Analysis

Defendant City demurs against each cause of action. It contends that the Complaint as a whole is vague, ambiguous, and uncertain; that each cause of action fails to set forth the statutory basis for liability against it; and that each cause of action does not state facts sufficient to constitute the cause of action against it.

First Cause of Action (Negligence) and Second Cause of Action (Premises Liability)

A public entity cannot be found liable for a tortious injury caused by an act or omission except as otherwise provided by statute. (Gov. Code, § 815, subd. (a); Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457 (“Becerra”); Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 (“Miklosy”).) Under the first and second causes of action, Plaintiffs herein state they seek damages caused by the City pursuant to Government Code sections 830, 835, and 840.

A public entity may be liable for the dangerous condition of a property. A dangerous condition “means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent 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).) Government Code section 835 provides that: “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 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.” (emphasis added)

Government Code section 835.2 further provides that “(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. (b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

This court agrees that Section 835 sets out the exclusive conditions for imposition of governmental liability due to dangerous condition of public property, it does not set out the conditions under which a public entity may be liable for general negligence or premises liability.

Claims against a public entity must be specifically pleaded. (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439 [“[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.]”]; Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802 [“[T]o state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. [Citation.]”].)

To plead a dangerous condition of public property claim, per Section 835, a plaintiff must allege: “[(1)] that the property was in a dangerous condition at the time of the injury, [(2)] that the injury was proximately caused by the dangerous condition, [and] [(3)] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred. In addition, the plaintiff must establish [(4)] 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) [t]he public entity had ... notice of the dangerous condition ... a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. [Citation]” (Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 753 (“Thimon”), internal quotation marks omitted.)

The court finds that the first two causes of action of the complaint do not sufficiently plead the nature of the alleged dangerous condition. It merely states there was an approximate 2-inch drop in elevation in the area where the plaintiff stepped without any further factual contention as to how this constituted a dangerous condition. What was the configuration of the 2-inch drop? Was it a

sudden drop? Was it due to a change in elevation between slabs? Was it a depression or hole in the sidewalk? Aggravating conditions? The causes of action also contain conclusory allegations that the City had actual or constructive notice of the condition, which require greater specification at the pleading stage as against a governmental agency. It is alleged that City created the dangerous condition but no allegations regarding whether it was due to construction, modifications, or whether it was “created” by allowing the existence of environmental conditions that were adverse to the sidewalk structure, etc.

There are no allegations as to the duration of the condition’s existence prior to the occurrence to allow for the City to discover the condition and take protective measures. Lastly, Plaintiffs fail to allege that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred. (Gov. Code, § 835) Plaintiffs do not necessarily need to allege specific medial findings or diagnosis, but they do need to allege more facts to support that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.

Third Cause of Action for Loss of Consortium and Fourth Cause of Action for Negligent Infliction of Emotional Distress

The court agrees with the Plaintiffs’ position that Government Code section 815, subdivision (a), does not bar Plaintiffs’ claims because they expressly allege statutory liability under Government Code section 835, arising from a dangerous condition of public property. Plaintiffs also argue that Estela’s claims for loss of consortium and negligent infliction of emotional distress are derivative of the underlying the dangerous condition of public property claim alleged pursuant to Section 835 and do not create independent basis for public entity liability separate and apart from the statutory dangerous condition claim.

The court notes that these causes of action expressly incorporate by reference all allegations contained in the first and second causes of action, which would include references to Government Code sections 830, 835 and 840 and allegations of the existence of a dangerous condition on public property causing injury to plaintiff Jose Vasquez witnessed by Estela Vasquez and from which Estela has suffered loss of consortium.

However, given that these causes of action are derivative of the deficient first and second causes of action as discussed above, the demurrer must likewise be sustained to the third and fourth causes of action.

TENTATIVE RULING

(1) Defendant City’s Demurrer as to Plaintiffs’ first cause of action for General Negligence is sustained without leave to amend. Government Code section 815, subdivision (a), “makes clear that under the [Act], there is no such thing as common law tort liability for public entities; a public entity is not liable for an injury ‘[e]xcept as otherwise provided by statute.’ [Citations]” (City of Los

Angeles v. Superior Court (Barbara Wong) (2021) 62 Cal.App.5th 129, 138 (“City of Los Angeles”).) The appropriate theory of recovery is a premises liability claim premised upon Dangerous Condition of Public Property, which is the Second Cause of Action of the Plaintiff’s current complaint.

(2) Defendant City’s Demurrer as to Plaintiffs’ second cause of action for Premises Liability (Dangerous Condition of Public Property) is sustained with 20 days leave to amend.

(3) Defendant City’s Demurrer as to Plaintiffs’ third cause of action for Loss of Consortium is sustained with 20 days leave to amend.

(4) Defendant City’s Demurrer as to Plaintiffs’ fourth cause of action for Negligent Infliction of Emotional Distress is sustained with 20 days leave to amend.