Filed 9/15/26 Cooper v. City of Oakland CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
ALFRED PAYE COOPER et al.,
Plaintiffs and Appellants, A175538
v.
CITY OF OAKLAND et al., (Alameda County
Defendants and Respondents. Super. Ct. No. 24CV099429)
Alfred Paye Cooper and Amalia Ndahafa Cooper (together, the
Coopers) suffered the incalculable loss of their daughter, Oprah Meke Cooper,
who was fatally struck by a hit-and-run driver in 2023 at the intersection of
85th Avenue and San Leandro Street in Oakland, California (the
intersection). The driver was never caught. The Coopers, representing
themselves in propria persona, sued defendants City of Oakland and Oakland
Police Department (together, defendants). The trial court sustained
defendants’ demurrers to both the Coopers’s original and first amended
complaints, each time with leave to amend for the Coopers to cure their
complaints’ defects. The Coopers filed a second amended complaint, alleging
causes of action for dangerous condition of public property, negligence and
vicarious liability, civil rights violations, and wrongful death. Defendants
again filed a demurrer. After determining that the Coopers failed to
sufficiently allege facts to support their claims for a third time, the trial court
sustained demurrer without leave to amend and dismissed the action. We
affirm.
BACKGROUND
The Coopers’s original complaint alleged that their daughter had been
killed in a hit-and-run “on the crosswalk [at] 85th Avenue and San Leandro
Street Oakland” in 2023. The complaint stated that there had been an
“[i]nadequate investigation” because “the Police ha[d] not located the hit-and-
run driver,” and the complaint purported to attach six exhibits, including the
police report. The complaint identified the causes of action as “[n]egligence,
failure to protect, negligent in investigation and violation of civil rights under
the Bane Act and U.S. Constitution.”
Defendants demurred to the original complaint on several grounds,
including that a negligence claim premised on the police’s failure to identify a
hit-and-run driver was not legally cognizable, that defendants were immune
from the common law negligence claim as public entities, and that the
Coopers did not plead any facts to support their other claims. In opposition
to the demurrer, the Coopers argued, inter alia, that “[t]he City of Oakland
failed to implement adequate safety precautions” at the intersection and their
daughter was “in the crosswalk and had the right of way” when she was
struck and killed.
The trial court observed that the exhibits identified in the complaint
had not been attached and therefore could not be incorporated into the
complaint’s factual allegations. The court also cited the general rule of
governmental immunity, which provides that a public entity is not liable for
injuries arising “out of an act or omission of the public entity or a public
2
employee or any other person.” (Gov. Code,1 § 815, subd. (a).) The court
further explained, however, that section 835 creates an exception to that
immunity by imposing liability on public entities for injuries caused by a
dangerous condition of public property.
Turning to the allegations, the trial court agreed with defendants that
the facts as alleged could not be the basis for a negligence claim because “the
investigators did not create the peril and all harm to the decedent was done
prior to the investigation.” However, the court noted that “some facts
mentioned in the opposition . . . allude[d] to public safety issues that may
have contributed to the tragic accident and for that reason Plaintiffs will be
allowed to amend their complaint as to this cause of action.” By contrast, the
court found there were “no facts given at all to support any constitutional
claim or a claim under the Bane Act” and therefore as to those claims
sustained the demurrer without leave to amend.
The Coopers filed their first amended complaint, asserting causes of
action for wrongful death, negligence, failure to investigate, dangerous
condition of public property, and municipal liability. Defendants demurred to
all the causes of action. The trial court again sustained defendants’
demurrer. The court reiterated that a negligent investigation “cannot be the
basis for negligence/failure to investigate causes of action because the
investigators did not create the peril.” The court acknowledged that the first
amended complaint alleged that “the City of Oakland has a history of
dangerous intersections and traffic fatalities including a second fatal hit and
run at the same location in 2025,” but concluded that it failed to allege that
defendants had notice of such conditions. The court further held that the
1 All further undesignated statutory references are to the Government
Code.
3
allegations regarding “ ‘known hazards including prior deaths, poor lighting,
and lack of enforcement’ ” were “unclear and conclusory as they fail to
describe what known hazards directly contributed to the tragic accident
involving Ms. Cooper and how.” The court sustained the demurrer with leave
to amend and with the directive that “Plaintiff may only amend claims
previously asserted.”
The Coopers then filed their second amended complaint (the SAC),2
alleging causes of action for dangerous condition of public property,
negligence and vicarious liability, civil rights violations, and wrongful death.
Among other allegations, the SAC asserted that “[t]he intersection had a long
history of speeding, pedestrian fatalities, and community complaints.
Crosswalks were faded, and no speed bumps or traffic calming measures
were installed, despite City knowledge and notice.” The SAC also alleged
that the police report “wrongly stated Oprah Meke Cooper crossed against a
red light without credible evidence,” and the Coopers attached Oakland
Police Department’s Traffic Collision Report from the incident to the SAC.
The trial court again found that the Coopers failed to allege facts
sufficient to state a negligence claim because the alleged acts and omissions
“occurred after the hit and run accident.” As to the dangerous condition
claim, the court quoted the Coopers’s factual allegations about the
intersections’ conditions—i.e., the faded crosswalk and lack of traffic calming
measures—but found that the Coopers “fail[ed] to describe what known
hazards created by Defendants directly contributed to the tragic accident
involving Oprah Meke Cooper.”
2 The Coopers titled the document “Final Amended Complaint” and
confirmed by declaration that it was the operative complaint.
4
The trial court also held that the civil-rights claim was beyond the
scope of permitted amendment and, in any event, was insufficiently pled.
And, because the wrongful-death claim depended on the same deficient
allegations as the dangerous-condition and civil-rights claims, it too failed.
Accordingly, the court sustained the demurrer as to the entire SAC without
leave to amend and dismissed the action. The Coopers appealed.
DISCUSSION
I.
“When reviewing a ruling on a demurrer, we examine de novo whether
the complaint alleges facts sufficient to state a cause of action.” (Liapes v.
Facebook, Inc. (2023) 95 Cal.App.5th 910, 919 (Liapes).) “This consideration
of facts includes those evidentiary facts found in recitals of exhibits attached
to a complaint.” (Satten v. Webb (2002) 99 Cal.App.4th 365, 375.) We assume
the truth of properly pled factual allegations, “[b]ut we do not assume the
truth of ‘contentions, deductions, or conclusions of law.’ ” (Liapes, at p. 919.)
While we “liberally construe the complaint” and draw “ ‘all reasonable
inferences in favor of the asserted claims,’ ” reversal is only warranted if the
plaintiff “ ‘show[s] the complaint alleges facts sufficient to establish every
element of each cause of action.’ ” (Ibid.) “We will affirm the ruling if there is
any ground on which the demurrer could have been properly sustained.”
(Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047,
1052 (Intengan).)
The Coopers contend that the trial court “failed to accept [their]
allegations as true and improperly relied on the police report.” In their reply
briefing, the Coopers identify factual allegations contained in the SAC that
they contend the court did not assume as true, including the location of the
intersection, the alleged dangerous roadway conditions, “[m]unicipal
5
awareness of the hazards,” and “the dangerous roadway conditions
contributed to the fatal incident and created a foreseeable risk of pedestrian
injury.” But assuming the truth of the Coopers’s factual allegations, as we
independently do, dooms their action.
Governmental liability for a dangerous condition of public property is
strictly limited to claims that satisfy the requirements of section 835. (Brown
v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) To state such a
claim, a plaintiff must establish that: (1) the property was in a dangerous
condition at the time of the injury, (2) the injury was proximately caused by
the dangerous condition, (3) the dangerous condition created a reasonably
foreseeable risk of the kind of injury which occurred, and (4) either (a) the
dangerous condition was caused by a negligent or wrongful act or omission of
an employee of the public entity, or (b) the public entity had actual or
constructive notice of the dangerous condition. (§ 835.)
As pled, the SAC’s factual allegations actually demonstrate a lack of
causation. We assume the truth of the Coopers’s allegation that their
daughter was in the crosswalk and had the right of way and that the police
report is a “fabrication of facts” that “wrongly stated Oprah Meke Cooper
crossed against a red light without credible evidence.” Therefore, we assume
Oprah had the right of way when the hit and run driver entered the
intersection, and “she was within a marked crosswalk when a speeding
vehicle ran the light and fled.”3 We further assume the truth of the
allegations that the crosswalk at the intersection was faded, that the
3 We observe that the Coopers do not dispute the accuracy of the
portions of the police report—which the Coopers attached to the complaint—
describing the intersection as controlled by a light and that Oprah was
traveling northbound across San Leandro Boulevard and the vehicle was
traveling westbound down San Leandro Boulevard.
6
adjacent roadway lacks certain traffic calming measures (other than a traffic
light), and that defendants were aware of these conditions. Accordingly, the
Coopers must explain how the faded crosswalk and lack of certain traffic
calming measures gave rise to a reasonably foreseeable risk of a driver
running a red light and fatally striking a pedestrian in the crosswalk with
the right of way. They do not do so, and there is no reasonable inference that
can be drawn in favor of such an argument.4 This ground alone is sufficient
to affirm the ruling sustaining the demurrer as to the dangerous condition
cause of action. (Intengan, supra, 214 Cal.App.4th at p. 1052.) Again, while
courts treat as true all properly pleaded material factual allegations, “we do
not assume the truth of ‘contentions, deductions, or conclusions of law.’ ”
(Liapes, supra, 95 Cal.App.5th at p. 919.) Therefore, we cannot merely accept
the truth of the Coopers’s contention that the alleged dangerous condition
proximately caused their daughter’s tragic death.
The Coopers’s other claims fare no better. First, the Coopers did not
challenge the trial court’s dismissal of their negligence, civil-rights, and
wrongful-death causes of action, thereby forfeiting any challenge to those
rulings on appeal. (Wall Street Network, Ltd. v. New York Times Co. (2008)
164 Cal.App.4th 1171, 1177.)
4 A faded crosswalk, standing alone, does not constitute a “dangerous
condition” under the Government Claims Act. (§ 835; Mixon v. Pacific Gas &
Electric Co. (2012) 207 Cal.App.4th 124, 136.) Rather, crosswalk marking
deficiencies are generally deemed to be of such “ ‘a minor, trivial or
insignificant nature in view of the surrounding circumstances that no
reasonable person would conclude that the condition created a substantial
risk of injury.’ ” (Mixon, at p. 136, citing § 830.2.) Here, Oprah was
“endangered by the motorist’s violation of the law, not the color of the
crosswalk.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1351.)
7
Even if we reach the merits, the Coopers did not sufficiently state the
alleged causes of action. As to negligence, the SAC failed to sufficiently plead
the essential element of such a claim: a legal duty. (Williams v. State of
California (1983) 34 Cal.3d 18, 22 (Williams).)5 “A person who has not
created a peril is not liable in tort merely for failure to take affirmative action
to assist or protect another unless there is some relationship between them
which gives rise to a duty to act.” (Id. at p. 23.) These principles apply with
equal force to law enforcement officers. (Id. at p. 24 & fn. 3; Lugtu v.
California Highway Patrol (2001) 26 Cal.4th 703, 717–718.) The Coopers do
not allege that defendants’ negligent investigation created the peril to their
daughter, and Oprah’s death occurred before the purportedly negligent
investigation and therefore cannot have been caused by it.
To the extent the SAC’s allegations, liberally construed, can be read to
allege that the police’s inability to find the perpetrator and/or the police
report’s fabrications about the accident caused the Coopers’s “psychological
harm” and an attendant loss of earnings, the SAC does not articulate a legal
duty the police owed to them, nor can we reasonably infer one.6 As the
California Supreme Court has said, “the intended beneficiaries of any
investigation that is undertaken are the People as prosecutors in criminal
cases . . . .” (Williams, supra, 34 Cal.3d at p. 24, fn. 4.) The Coopers do not
allege that they were in a special relationship with the police giving rise to a
5 Accordingly, even if the Coopers’s heading titled “Immunity Argument
Is Misplaced” was supported by meaningful legal analysis, it would not
change the outcome. (Williams, supra, 34 Cal.3d at p. 22 [“Once again the
immunity cart has been placed before the duty horse”].)
6 In their appellate briefing, the Coopers allege, for the first time, that
the “materially inaccurate report” caused “denial of victim compensation
benefits and the inability to obtain legal representation.” Even assuming this
negligence theory is not forfeited, it would still lack a cognizable legal duty.
8
legal duty, nor do they describe any action the investigating officers took that
would create such a special relationship. (See Winkelman v. City of
Sunnyvale (1976) 59 Cal.App.3d 509, 511–512; cf. Catsouras v. Department of
California Highway Patrol (2010) 181 Cal.App.4th 856, 877–881 [finding that
California Highway Patrol did not owe family members of decedent a duty of
care under the special relationship doctrine based on investigation that
negligently spread of emotionally distressing images of decedent].) Nor do
the Coopers cite any case law supporting an argument that a special
relationship was created here. (See Catsouras, supra, 181 Cal.App.4th at
p. 879 [“a special relationship would not ordinarily arise vis-à-vis prospective
plaintiffs who were not present at the scene”].7 Accordingly, the Coopers did
not state a viable negligence claim. The same defect that defeats the
Coopers’s negligence claim is fatal to their wrongful death claim because it
negates an element of the cause of action. (See Musgrove v. Silver (2022) 82
Cal.App.5th 694, 705 [to prevail on a wrongful death claim, a plaintiff “must
prove ‘(1) a “wrongful act or neglect” on the part of one or more persons [(that
is, negligence)] that (2) “cause[s]” (3) the “death of [another] person” ’ ”].)
The Coopers also did not articulate a viable civil rights claim. Their
allegation that defendants’ “failure to provide adequate staffing and roadway
safety measures constitutes racial discrimination and a denial of equal
protection under the law” is conclusory and undeveloped. (E.I. v. El Segundo
Unified School Dist. (2025) 111 Cal.App.5th 1267, 1289 [“an appellant waives
contentions that are conclusory and not supported by cognizable legal
argument or analysis”].)
7 We further observe that the Coopers fail to explain how their
negligence claim would not be foreclosed by section 815, subdivision (a), and
they fail to specify any facts that they could allege in an amended pleading to
overcome that immunity bar.
9
For the foregoing reasons, we affirm the trial court’s order sustaining
the demurrer to the entire SAC.
II.
When demurrer is sustained without leave to amend, “ ‘we decide
whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.] The burden of proving such reasonable possibility is squarely on
the plaintiff.’ ” (TruConnect Communications, Inc. v. Maximus Inc. (2023)
91 Cal.App.5th 497, 506.) The plaintiff may meet this burden for the first
time on appeal. (Sproul v. Vallee (2025) 116 Cal.App.5th 285, 293.)
The Coopers do not offer any amendment that could cure the defects we
describe. In their opening brief, the Coopers merely state that they
“demonstrated ability to amend,” and in their reply briefing they assert that
“additional factual allegations regarding notice, prior incidents, roadway
safety conditions, and causation could have been further developed through
amendment and discovery.” (Italics added.) But the appropriate time to
identify the additional facts they would incorporate into an amended
complaint to state a viable cause of action was this appeal. Although the
Coopers are in propria persona litigants, we hold them to the same standards
as attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985.) We
therefore conclude the trial court did not abuse its discretion by denying the
Coopers leave to amend.
DISPOSITION
The judgment is affirmed. In the interests of justice, no costs are
awarded. (Cal. Rules of Court, rule 8.278(a)(5).)
10
_________________________
Gordon, J.*
WE CONCUR:
_________________________
Brown, P. J.
_________________________
Goldman, J.
* Judge of the Superior Court of California, County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
11