Danielle Sue Blum vs California Dept of Parks and Recreation

Case Number

22CV02412

Case Type

Hearing Date / Time

Fri, 03/01/2024 - 10:00

Nature of Proceedings

Demurrer and Motion to Strike

Tentative Ruling

TENTATIVE RULING:

For all reasons discussed herein, defendant Department of Parks and Recreation’s demurrer to plaintiff’s second amended complaint is overruled. Defendant’s motion to strike portions of plaintiff’s second amended complaint is denied.

Defendant shall file and serve its answer to plaintiff’s second amended complaint no later than March 22, 2024.

Background:

On June 27, 2022, plaintiff Danielle Sue Blum (Blum) filed her original complaint in this matter alleging one cause of action against the California Department of Parks and Recreation (the Department) for dangerous condition of public property. On November 28, 2022, Blum filed a first amended complaint (the FAC) against the Department alleging the same sole cause of action for dangerous condition of public property. As alleged in the FAC:

Between February 18, 2020, and March 4, 2020, the Department closed all traffic on Carpinteria State Park Road, south from the Palm Avenue entrance, for a construction project. During the period of construction, the Department cut off electricity at Carpinteria State Beach (the premises). As of February 4, 2021, one year after construction had begun, the Department had not turned the electricity back on causing a streetlight along the 4th Street bridge over the Carpinteria Creek to be non-functional.

On February 4, 2021, Blum was walking at the premises traveling along the 4th Street bridge over Carpinteria Creek when, due to inadequate lighting from the nonfunctional streetlight that had been turned off a year prior during a construction project, Blum could not see the end of the curb and fell off the sidewalk injuring her wrist. Blum suffered a fracture to her right wrist requiring surgical intervention.

The Department should have known when they turned off the electricity for the construction project that, almost an entire year after the completion of the project, the 4th Street bridge was dangerously dark because the streetlight was turned off. The Department’s negligent maintenance of the premises caused Blum to fall off the sidewalk curb and injure her wrist.

On December 9, 2022, the Department filed its answer to the FAC, generally denying its allegations and asserting seventeen affirmative defenses.

On September 21, 2023, Blum filed a motion for leave to file a second amended complaint (SAC). The motion was granted on November 3, 2023. The SAC, while continuing to assert a single cause of action for dangerous condition of public property, includes additional allegations regarding plaintiff’s fall, including that “the curb for pedestrians along the 4th street bridge over Carpinteria Creek at the Carpinteria State Beach, at all times mentioned herein, measured as high as 10 inches at various points along the bridge.” (SAC, ¶ 10.) “Defendant created the dangerous condition on the PREMISES when they 1) built the sidewalk at an extreme height, and 2) turned off the electricity for a construction project, and/or reasonably should have known—almost an entire year after the completion of the project—that the 4th street bridge was dangerously dark, due to having the streetlight turned off. As such, the PREMISES was negligently maintained. This caused Plaintiff to fall off the sidewalk curb and land on her right wrist.” (SAC, ¶ 12.)

The Department demurs to the SAC on the grounds that a public entity cannot be liable for failure to provide lighting and the SAC’s new curb height allegations are barred by plaintiff’s failure to comply with the Government Claims Act. The Department also moves to strike the allegations in the SAC relating to the curb height allegations.

Blum opposes the demurrer as well as the motion to strike on the grounds that the allegations of the SAC are the factual equivalent of her government claim, such that the SAC is not barred.

Analysis:

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42.)’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

“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.)

A demurrer searches for defects in the allegations of the pleading. “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.) As such, the court will disregard the factual arguments contained in the demurrer.

With respect to a public entity, and their employees, there are specific pleading requirements. A public entity has no liability for any injury to any person except as provided by statute. (Gov. Code, § 815; Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1089.) Claims based upon statutory liability cannot be generally alleged, but must be particularly pled to allege facts demonstrating the right to recover under the statute. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

“ ‘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).) 

“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.” (Gov. Code, § 835.)

“A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following:

“(a) The name and post office address of the claimant.

“(b) The post office address to which the person presenting the claim desires notices to be sent.

“(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.

“(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.

“(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.

“(f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.” (Gov. Code, § 910.)

Blum’s Government Claim states: “On the night of Ms. Blum’s injury, the streetlight lining the 4th street bridge over the Carpinteria Creek was non-functional. On the evening of February 4, 2021, Ms. Blum was walking on the sidewalk on the 4th street bridge but, due to the nighttime darkness and lack of light, she could not see the end of the curb and stepped off the curb, falling onto her wrist. The streetlight located on the 4th Street bridge which runs over Carpinteria Creek at Carpinteria State Beach was negligently maintained and caused Ms. Blum to fall and sustain injuries. The California Department of Parks and Recreation (“State Parks”) is responsible for maintenance, control and management of the streetlight, sidewalk, and walkways at or near the location of the fall. State Parks failed to adequately maintain the premises, resulting in a dangerous condition that posed a reasonably foreseeable risk of harm to persons on the premises.” (Smith Dec., Exh. A; Italics added.) In addition, the Government Claim identifies the specific location of the incident including latitude and longitude.

“The [California Tort Claims] Act’s filing requirement serves to alert a public entity that something happened and point the entity’s investigation in the right direction; it is not designed to eliminate meritorious claims. Stockett v. Ass’n of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 449, (2004) (“ ‘[the statutes] should be given a liberal construction to permit full adjudication on the merits.’ ”) (citation and quotation marks omitted; brackets in original). “ ‘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.’ ” [Citation.]” (Wormuth v. Lammersville Union School District (2018) 305 F.Supp.3d 1108, 1128.)

“Where the complaint merely elaborates or adds further detail to a claim but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.” (Stockett v. Ass’n of Cal. Water Agencies Joint Powers Ins. Auth, supra, at p. 447.)

This case is similar to Blair v. Superior Court (1990) 218 Cal.App.3d 221 (Blair), which distinguishes itself from several of the cases relied on by the Department. In that case, the defendant moved to strike portions of plaintiff’s first amended complaint on the ground that the challenged allegations predicated liability on facts different from those set forth in the Government Claim plaintiff submitted. The trial court granted the motion, and the court of appeals issued a writ of mandate directing the trial court to vacate its order.

In Blair: “Plaintiff filed a timely claim on a form supplied for that purpose by the State Board of Control. The form includes questions about the incident giving rise to the governmental agency’s alleged liability. Question No. 3 asks: “ ‘How did the damage or injury occur? (Give full details).’ ” Plaintiff responded: “ ‘Claimant was riding in a 1986 Nissan pick up being driven by Lori Blair, going east, on a downgrade. Highway was iced over, car went out of control and collided with a tree.’ ” Question No. 4 asks: “ ‘What particular act or omission on the part of state officers, servants or employees caused the injury or damage?’ ” Plaintiff answered: “ ‘Negligent maintenance and construction of highway surface. Failure to sand and care for highway for safetyness of automobile transportation.’ ” (Id. at p. 223.)

By way of the first amended complaint, the Blair plaintiff alleged: “ ‘5. At that time and place, State Route 44 and the property adjoining it was in a dangerous and defective condition for a number of reasons including, but not limited to, the following: ice had accumulated on the roadway under circumstances where there was no warning and where no precautions or remedies had been taken therefor, although Defendant CAL TRANS had actual notice of the accumulation of ice in time to take adequate precautions; and, in addition, at that point, the roadway crosses a stream over a culvert or bridge requiring guard rails where there was no guard rail; in addition, the slope of the road is such that a vehicle striking ice is carried off the road causing it to strike adjacent roadside barriers including large trees that have been left close to the road also without a guard rail. [¶] 6. No warning signs were in place nor any other device designed to either advise the traveling public of danger or ameliorate that danger.’ ” (Id. at p. 224.)

The defendant’s argument in Blair was that plaintiff’s sole legal theory in her Government Claim was the state’s failure to prevent or remedy the accumulation of ice on the highway. The defendant argued that “the allegations in the complaint relating to the lack of guard rails, slope of the road, and failure to warn must be stricken as matter not asserted in the claim.” (Ibid.) The Blair court disagreed with defendants argument.

“While an allegation as to the legal cause of an accident may be an element of the tort which must be pled in a complaint, section 910 does not impose upon an injured claimant an obligation to include it in the claim.” (Id. at p. 225.)

In distinguishing itself from several of the cases cited by the Department in the present action, the Blair court explained: “It is apparent that in each of the decisions the plaintiff did not merely elaborate or add further detail to a claim which was predicated on the same fundamental facts set forth in the complaint. Rather, there was a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim. In contrast, the claim and the complaint in this action are premised on essentially the same foundation, that because of its negligent construction or maintenance, the highway at the scene of the accident constituted a dangerous condition of public property.” (Id. at p. 226.)

The same is true here. Blum alleges a dangerous condition of public property at a specific location on a specific date. Enough information was given to alert the Department that something happened and point the Department’s investigation in the right direction. The SAC does not present a complete shift in allegations.

The demurrer will be overruled.

1. Motion to Strike

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, italics added.) As with demurrers, “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” [Clauson v. Sup.Ct. (Pedus Services, Inc.) (1998) 67 CA4th 1253, 1255.)

The Department’s motion to strike is based on the same argument as the demurrer. It will be denied for the same reasons that the demurrer will be overruled.