Eberhardt v. >Mendocino> >County>





















Filed 3/19/13 Eberhardt v. Mendocino County CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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
THREE




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RICHARD EBERHART, Plaintiff and Appellant, v. MENDOCINO COUNTY et al., Defendants and Respondents.

A134234 (Mendocino County Super. Ct. No. SCUK-CVPO-11-57727)

Plaintiff
Robert Eberhart (appellant) appeals from orders sustaining respondents
Mendocino County Sheriff’s Office, by and through the County of Mendocino
(County), and California Highway Patrol’s (CHP) demurrers to his href="http://www.fearnotlaw.com/">second amended complaint without leave to
amend. Appellant contends he stated a
valid cause of action for premises liability because respondents: (1) controlled the road on which he was
injured after a vehicle he was driving collided with a cow that was on the
road; and (2) had a mandatory duty to seize the cow from the road to
prevent the collision from occurring.
For the reasons set forth below, we shall dismiss the appeal as to CHP
and affirm the order as to County.

Factual and Procedural Background

On
September 20, 2009,
appellant was driving on US Highway 101 in Mendocino
County when his vehicle collided
with a cow and he sustained serious injuries.
On September 9, 2010,
he filed a personal injury complaint
against CHP, “by and through the State of California,”
the County, and the owners of the cow—George Sequeira, Celeste Sequeira, and
the estate of Joseph Sequeira (together, the Sequeiras). CHP and County filed demurrers to appellant’s
first amended complaint and the trial court sustained the demurrers with leave
to amend.

Appellant
filed a second amended complaint, which is the operative complaint, on August 1, 2011. His first cause of action for negligence was
against the Sequeiras, who he alleged “negligently owned, controlled, maintained,
and/or tended to the subject bovine so as to allow said bovine to enter the
aforesaid roadway,” which caused a collision that resulted in appellant
suffering “catastrophic injuries to his face, head and body, requiring numerous
surgical procedures to date.” He added
the California Department of Transportation (DOT), “by and through the State of
California,” as a defendant and
alleged in his second cause of action for premises liability against the
“County and State” that they were “liable for creating, maintaining, failing to
warn about, and failing to remedy a dangerous condition of their premises.”

Appellant
alleged County “had control over” “the site of the subject accident” because it
had “the power to prevent, remedy or guard against [the] dangerous condition
. . . .” He alleged that
under County’s “own Animal Care Ordinances,” “any police officer (including,
but not limited to, [County] and [CHP]) is expressly given the power to insure
that the negligent management practices of large domestic animals
. . . are prevented. This
includes, but is not limited to, the seizing of large domestic animals that
have been allowed to run astray.”
“Additionally, pursuant to California Penal Code § 597.1, any
police officer (including, but not limited to, [County] and [CHP]) is required
(as a mandatory duty) to immediately seize possession of a stray or abandoned
animal in order to protect the health and safety of the animal or safety of
others.”

Appellant
further alleged that CHP is “responsible for patrolling all state highways,
including US 101 at said location, and also acts as the state police. The duties of [CHP] include, but are not
limited to, investigating and disposing of obstructions or other things (including
a bovine) which impede the flow of traffic and/or create a traffic hazard, and
it is vested with the power to enforce all laws, including those involving
livestock on or about a state highway.”
He alleged CHP and County “did engage in efforts to capture the subject
bovine. To the extent that [CHP] and
[the Sheriff’s Department] did not have possession or control over the subject
premises, they were required, as agencies of [the State and County], to
promptly notify the appropriate state or county agency or agencies vested with
such possession or control in order to alleviate and/or warn of the dangerous
condition.” “When the subject bovine
avoided [their] initial attempts to capture or corral it, [CHP and County]
simply gave up and left the bovine to wander on or adjacent to US 101, endangering
the lives of others . . . .”
He alleged the cow “wandered on the subject premises” “[f]rom
. . . around September 15, 2009 to September 20, 2009 (the
date of injury),” “creat[ing] a substantial risk of injury to motorists,
including [appellant]. The subject
bovine, which was black in color and difficult if not impossible to be seen on
the highway after dark, had a propensity to and did wander directly into the
path of motorists, including [appellant],” who was “operating his vehicle in a
safe and reasonable manner and using due care . . . .”

Appellant
alleged as to DOT that it is “an agency of Defendant STATE” that “has
possession and control over US 101. (See
Streets & Highways Code § 90, § 300 and § 401.) [DOT], an agency of Defendant STATE, is also
responsible for the inspection and maintenance of said highway to ensure that
it is free of any obstructions or hazards to motorists
. . . .” He alleged,
“Based upon information and belief, [CHP] failed to adequately communicate with
and seek the assistance of [DOT], or other STATE agencies, about the urgency of
preventing the bovine from entering US 101.
Based upon information and belief, [DOT] failed to adequately recognize
and respond to the communications and requests for assistance by [CHP] in preventing
the bovine from entering US 101. To the
extent that [CHP] had actual or constructive notice of the subject bovine, this
knowledge was imputed to [DOT], as both agencies are agents of Defendant
STATE.” He alleged, “In addition to
failing to corral, capture, and/or remove the bovine from the subject premises,
Defendants, and each of them, failed to erect barriers, fences or otherwise
prevent the bovine from entering US 101.
Defendants, and each of them, also failed to warn or otherwise alert
motorists, including [appellant], about the bovine’s presence on or around US
101.”

CHP,
County, and DOT filed demurrers to the second amended complaint. The trial court overruled DOT’s demurrer and
sustained CHP’s demurrer without leave to amend. The court sustained County’s demurrer without
leave to amend “on the ground that . . . County did not own or
control the property at issue.” After
his motion for reconsideration was denied, appellant filed notices of appeal on
January 6, 2012.

Discussion

>1. Appealability of the order sustaining
CHP’s demurrer without leave to amend

>a. One judgment rule

Preliminarily, we
address whether the order sustaining CHP’s demurrer without leave to amend is
an appealable order. The one judgment
rule, effectively codified in Code of Civil Procedure section 904.1,
subdivision (a), provides that only final judgments are appealable. (Otay
River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, 803;
see also Walton v. Mueller (2009) 180
Cal.App.4th 161, 172, fn. 9 [“Under this rule, an appeal lies only from a
final judgment that terminates the trial court proceedings by completely
disposing of the matter in controversy”].)
“Judgments that leave nothing to be decided between one or more parties
and their adversaries . . . have the finality required by
section 904.1, subdivision (a).”
(Morehart v. County of Santa
Barbara (1994) 7 Cal.4th 725, 741.)
In contrast, “an appeal cannot be taken from a judgment that fails to
complete the disposition of all the causes of action between the parties even
if the causes of action disposed of by the judgment have been ordered to be
tried separately, or may be characterized as ‘separate and independent’ from
those remaining.” (Id. at p. 743.)

The overall
objective of the one final judgment rule is to avoid the cost and oppression of
“piecemeal disposition and multiple appeals.”
(Kinoshita v. Horio (1986) 186
Cal.App.3d 959, 966-967.) Interlocutory
appeals “tend to clog the appellate courts with a multiplicity of appeals” and
“tend[] to produce uncertainty and delay in the trial court.” (Id.
at p. 966.) Further, “[u]ntil a
final judgment is rendered the trial court may completely obviate an appeal by
altering the rulings from which an appeal would otherwise have been taken.” (Ibid.) In addition, “[l]ater actions by the trial
court may provide a more complete record which dispels the appearance of error
or establishes that it was harmless,” and “[h]aving the benefit of a complete
adjudication by the trial court will assist the reviewing court to remedy error
(if any) by giving specific directions rather than remanding for another round
of open-ended proceedings.” (>Id. at pp. 966-967.) Finally, as an appellate court, we must not
undermine the authority of the trial judge.
(Firestone Tire & Rubber Co.
v. Risjord (1981) 449 U.S. 368, 374 [“ ‘[p]ermitting piecemeal appeals
would undermine the independence of the district judge, as well as the special
role that individual plays in our judicial system.’ . . .
[Citation.]”) For the above public
policy reasons, the one judgment rule is strictly applied and exceptions
“should not be allowed unless clearly mandated.” (Kinoshita
v. Horio, supra, 186 Cal.App.3d
at p. 967.)

Here,
CHP argues that the order sustaining its demurrer without leave to amend is not
an appealable order because no final judgment has been entered as to the State
of California. CHP asserts, “CHP and
[DOT] are both state entities and do not have a separate legal identity for purposes
of a judgment being entered in this matter.
There can be only one judgment against the State of California.” Appellant responds that an appeal is
appropriate because the trial court’s order “dismissed . . . CHP, as
a defendant, from this case.” He asserts
the CHP’s argument is “inconsistent and flawed” because CHP “[o]n the one hand,
. . . wants to remain a dismissed party defendant,” and “[o]n the
other hand, . . . wants this court to find that it is the same entity
as an on-going party defendant, namely [DOT], by and through the State of
California.”

We
agree with CHP. In Columbo v. State of California (1991) 3 Cal.App.4th 594, 598, the
plaintiff, a CHP officer, argued that because CHP and DOT are separate entities
of the State of California, his workers compensation claim against CHP did not
bar a separate tort action against the State for injuries he sustained due to
DOT’s negligence. The Court of Appeal
disagreed, stating that “[a]s part of the Business, Transportation and Housing
agency of state government [citation], both departments and their employees are
agents of the state. [Citation.] Hence, lawsuits
against state agencies are in effect suits against the state. [Citations.]”
(Id. at p. 598, fns.
omitted, italics added.)

Similarly, in> Bettencourt v. California Toll Bridge
Authority et al. (1954) 123 Cal.App.2d 943, the court held that
“[d]efendants Toll Bridge Authority and Department of Public Works are agencies
of the State of California.
[Citations.] Such agencies are
really the State of California.” Thus,
if “the State of California enjoy[ed] sovereign immunity as to claims for
negligence in the operation of the Dumbarton Bridge” so did its agencies. (Ibid.) And in Bacich
v. Board of Control (1943) 23 Cal.2d 343, 346, the Supreme Court held that
the failure to name the State as a party defendant in the complaint was not
error because the complaint “named the state agencies in their capacity [and]
. . . [t]he action is in effect one against the State.” Finally, in Harland v. State of California (1977) 75 Cal.App.3d 475, 482, 488,
the Court of Appeal upheld a single, $3 million judgment against the State
that was based on the jury’s finding that two State agencies were negligent,
even though the Court of Appeal concluded that only one of the State agency’s negligence
actually caused the plaintiff’s injuries.

Accordingly, here,
CHP and DOT are not separate party defendants, but rather, a single
defendant—the State of California—and appellant’s lawsuit against CHP and DOT
is legally a lawsuit against the State, which bears legal responsibility of any
liability. The trial court’s order
sustaining CHP’s demurrer without leave to amend did not dispose of the entire
liability of the State, but rather, merely removed CHP as a responsible agency,
and the State still faces exposure based on allegations relating to DOT’s acts
or omissions. Because only one judgment
can be rendered against the State for the torts of its agencies, and the order
sustaining CHP’s demurrer without leave to amend did not completely dispose of
that potential liability, the one final judgment rule bars this appeal.

>b. Writ of mandate

Appellant requests
in the alternative that we treat his purported appeal as a petition for writ of
mandate because “the slower process of review by appeal after a final judgment
will perhaps create multiple trials.”
While an appellate court has “discretion to treat a purported appeal
from a nonappealable order as a petition for writ of mandate, . . .
that power should be exercised only in unusual circumstances. [Citation.] ‘A petition to treat a
nonappealable order as a writ should only be granted under extraordinary
circumstances, “ ‘compelling enough to indicate the propriety of a
petition for writ . . . in the first instance. . . .’ [Citation.]” ’ [Citation.]”
(H.D. Arnaiz, Ltd. v. County of
San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.)

In >Mounger v. Gates (1987) 193 Cal.App.3d
1248, 1254, for example, the court treated the appeal from an order sustaining
a demurrer without leave to amend as to some causes of action as a writ
“because it present[ed] a question of public importance.” No such issues are presented here. In U.S.
Financial v. Sullivan (1974) 37 Cal.App.3d 5, 12, the court treated the
improper appeal as a writ because it was “unthinkable to permit [the] complex
case [before the court] to go to trial on only some of the counts because of an
erroneous ruling by the trial court on defendants’ demurrers when to do so
would almost certainly result in an eventual appeal and reversal of the
judgment because of this error.” No such
complexity or errors appear to exist in this case. Because there are no unusual or extraordinary
circumstances, we deny the request to treat the purported appeal from the order
sustaining CHP’s demurrer without leave to amend as a petition for writ of
mandate. Next we turn to the merits of
the appeal as to County, which is properly before us.href="#_ftn1" name="_ftnref1" title="">>[1]

>2. Appeal as to the order sustaining
County’s demurrer without leave to amend

“ ‘ “On
appeal from a judgment dismissing an action after sustaining a demurrer without
leave to amend, the standard of review
is well settled. The reviewing court
gives the complaint a reasonable interpretation, and treats the demurrer as
admitting all material facts properly pleaded.
[Citations.] The court does not,
however, assume the truth of contentions, deductions or conclusions of
law. [Citation.] The judgment must be affirmed ‘if any one of
the several grounds of demurrer is well taken.
[Citations.]’ [Citation.] However, it is error for a trial court to
sustain a demurrer when the plaintiff has stated a cause of action under any
possible legal theory. [Citation.]” [Citation.]’ [Citation.] ‘The task of the reviewing court, therefore,
“is to determine whether the pleaded facts state a cause of action on any
available legal theory.”
[Citation.] Where, as here, a
demurrer is sustained without leave to amend, we decide whether there is a
reasonable possibility 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 is on
appellant ‘ “to demonstrate that the trial court abused its discretion and
to show in what manner the pleadings can be amended and how such amendments
will change the legal effect of their pleadings. [Citations.]”
[Citation.]’ [Citation.]” (Vernon
v. State of California (2004) 116 Cal.App.4th 114, 121-122.)

Appellant
contends the trial court erred in sustaining County’s demurrer without leave to
amend because County: (1) “had
control of U.S. 101 such that [appellant] can maintain a premises liability
cause [of] action against [County] for creating, maintaining and failing to
remedy the dangerous condition in the roadway posed by the subject cow”; and
(2) “had a mandatory duty under Penal Code § 597.1 to seize the cow
from U.S. 101 and thereby prevent the collision from occurring.” We reject both of these contentions.

>a. “Control of U.S. 101”

A
premises liability action against a public entity such as County must be based
upon statute. (Gov. Code,
§ 815.) To prove an action against
a public entity for an injury caused by a dangerous condition of public
property, the plaintiff must establish the essential elements of liability as
set forth in Government Code section 835, which provides, “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.” (Italics
added.) “Liability under Government Code
section 835 applies only where the public entity owns or controls the
property” on which the dangerous condition exists. (Bassett
v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 869, citing Gov. Code,
§ 830, subd. (c) [“ ‘Property of a public entity’ and ‘public
property’ mean real or personal property owned or controlled by the public
entity . . . .”].) Thus,
ownership or control is a prerequisite to liability.

The
Legislature has determined that DOT “shall have full possession and control of all state highways and all property
and rights in property acquired for state highway purposes. The department is authorized and directed to
lay out and construct all state highways between the termini designated by law
and on the locations as determined by the commission.” (Sts. & Hy. Code, § 90, italics
added.) Thus, the State of
California—not County—had full ownership and control of Highway 101 on which
the incident occurred. There was no
allegation that County owned or constructed Highway 101, or that it
designed or constructed the barriers, if any, that existed for the purpose of
preventing animals from entering the road.
There was no allegation that County inspected or maintained
Highway 101, or that it exercised control over whether the road would
remain open or had to close.

Appellant
nevertheless argues that County had “control” of the property because it had
“statutory authority to enter the roadway and remove the cow.” Relying on the fact that County deputy
sheriffs have authority under Penal Code section 597.1 and Mendocino
County Ordinance, Chapter 10.20, § 10.20.020 to seize and impound
abandoned or stray animals, appellant argues, “This power equates to control
which, in turn, gives rise to a premises liability cause of action against the
County for failing to remove the cow from U.S. 101.” Appellant cites no relevant authority, however,
to support his position that the authority to seize or impound an animal
equates to control over all roads on which the animal may happen to be
found. Under appellant’s argument,
County would be subject to premises liability on any property—including private
property—on which an abandoned or stray animal is found, on the theory that it
“controls” that property. This is not
the law. (See e.g., Aaitui v. Grande
Prop. (1994) 29 Cal.App.4th 1369, 1378 [a swimming pool in a private
apartment building was not transformed into a property over which the city had
“control” merely because the city had the authority to inspect the pool for
safety violations and issue citations for violations].) Because County did not own or control
Highway 101, it was not liable for any dangerous condition that may have
existed on the property.

>b. Mandatory duty

Appellant’s
second theory of liability against County on appeal is based on Government
Code, section 815.6, which provides, “Where a public entity is under a
mandatory duty imposed by an enactment that is designed to protect against the
risk of a particular kind of injury, the public entity is liable for an injury
of that kind proximately caused by its failure to discharge the duty unless the
public entity establishes that it exercised reasonable diligence to discharge
the duty.” He argues County was liable
under Government Code section 815.6 because it failed to satisfy a “mandatory
duty [it had] under Penal Code § 597.1 to seize the cow from U.S. 101 and
thereby prevent the collision from occurring.”
We disagree.

Penal
Code section 597.1 provides in relevant part: “(a)(1) Every owner, driver, or keeper
of any animal who permits the animal to be in any building, enclosure, lane,
street, square, or lot of any city, county, city and county, or judicial district
without proper care and attention is guilty of a misdemeanor. Any peace officer, humane society officer, or
animal control officer shall take possession of the stray or abandoned animal
and shall provide care and treatment for the animal until the animal is deemed
to be in suitable condition to be returned to the owner. When the officer has reasonable grounds to
believe that very prompt action is required to protect the health or safety of
the animal or the health or safety of others, the officer shall immediately
seize the animal . . . .”
Appellant argues that the use of the word “shall” throughout the statute
shows that County had a mandatory duty to seize or impound the cow that was on
Highway 101 at the time of the incident.
It is settled, however, that the use of the word “shall” is not
dispositive on the issue of whether a duty is mandatory under Government Code
section 815.6. (See, e.g., >Stout v. City of Porterville (1983) 148
Cal.App.3d 937, 945 [provision stating that a peace officer, if reasonably able
to do so, “shall” take inebriated person into protective custody did not impose
mandatory duty under Government Code section 815.6]; California Highway Patrol v. Superior Court (Walker) 162 Cal.App.4th 1144, 1150 [language that police officer “shall”
impound vehicle for 30 days did not create mandatory duty if impounding
was dependent on the officer’s discretionary act].)

Moreover,
the portion of the statute that appellant asserts imposed a mandatory duty on
County necessarily includes discretion of the officer. As noted, the statute provides the officer
“shall immediately seize the animal,” but only “[w]hen the officer has reasonable grounds to believe that very prompt
action is required to protect the health or safety of the animal or the health
or safety of others.” (Pen. Code,
§ 597.1, italics added.) Thus,
officers are permitted under this statute to exercise their discretion as to
whether they need to take immediate action.
“[A]pplication of section 815.6 requires that the enactment at
issue be obligatory, rather than
merely discretionary or permissive, in its directions to the public entity; it
must require, rather than merely
authorize or permit, that a particular action be taken or not taken. [Citation.]
It is not enough, moreover, that the public entity or officer have been
under an obligation to perform a function if the function itself involves the
exercise of discretion.” (>Haggis v. City of Los Angeles (2000) 22
Cal.4th 490, 498; see also Fox v. County
of Fresno (1985) 170 Cal.App.3d 1238, 1242 [noting that “[i]n the area of
law enforcement, statutes containing ‘shall’ language are sometimes interpreted
as directory or permissive because discretion is inherent in the activity
concerned”].)

>Broden v. Marin Humane Society (1999) 70
Cal.App.4th 1212, on which appellant relies, is inapposite. There, the plaintiff challenged the police’s
act of entering and searching his reptile shop without a warrant. (Id.
at p. 1217.) The court held: “We agree with the parties that the statutory
language [in Penal Code section 597.1] authorizing immediate seizure when an
animal control officer ‘has reasonable grounds to believe that very prompt
action is required to protect the health or safety of others’ is the equivalent
of the exigent circumstances exception familiar to search and seizure law. That exception allows entry without benefit
of a warrant when a law enforcement officer confronts an emergency situation
requiring swift action to save life, property, or evidence.” (Id.
at pp. 1220-1221.) There was no issue or
discussion in the case as to whether the language in Penal Code section 597.1
created a mandatory duty for purposes of liability under Government Code
section 815.6.

Appellant
avers that alleged efforts by CHP and County to capture or corral the cow meant
that “they assumed a mandatory duty to remove the cow from harm’s way.” He asserts, “defendants obviously recognized
that the cow posed an emergency to motorists . . . .” The fact that CHP and County tried to capture
or corral the cow, however, does not transform Penal Code section 597.1
into a statute imposing a mandatory duty on peace officers. It is the language of the enactment, and not
the actions of officers in any given instance, that determines whether the
enactment creates a mandatory duty. (>Guzman v. County of Monterey (2009) 46
Cal.4th 887, 898 [whether an enactment is intended to impose a mandatory duty
is a question of statutory interpretation for the court].) Because Penal Code section 597.1 did not
impose a mandatory duty on County to immediately seize or impound the cow,
appellant’s claim that County violated a mandatory duty fails.href="#_ftn2" name="_ftnref2" title="">[2]

Disposition

The
purported appeal from the trial court’s order sustaining CHP’s demurrer without
leave to amend is dismissed. The trial
court’s order sustaining County’s demurrer without leave to amend is
affirmed. Respondent County shall
recover its costs on appeal from appellant.
Appellant and respondent CHP shall bear their own costs on appeal.





_________________________

McGuiness,
P. J.





We concur:





_________________________

Pollak, J.





_________________________

Jenkins, J.