Kohan v. City of Inglewood and County of Los Angeles

Filed 12/11/09 Kohan v. City of Inglewood and County of Los Angeles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from judgments of the Superior Court of Los Angeles County, Dudley W. Gray II, Judge. Affirmed in part, reversed in part and remanded.

Law Offices of Burg & Brock, Cameron Y. Brock and Arnold W. Gross for Plaintiff and Appellant.

City of Inglewood City Attorneys Office, Cal P. Saunders and Jenny Hsieh, for Defendant and Respondent City of Inglewood.

Office of the County Counsel, Ralph L. Rosato, Assistant County Counsel, Gary P. Gross, Principal Deputy County Counsel, for Defendant and Respondent County of Los Angeles.

____________________________

Plaintiff Jaleh Kohan appeals the judgments (orders of dismissal) entered after the trial court sustained demurrers interposed by defendants the County of Los Angeles and the City of Inglewood to Kohans personal injury lawsuit without leave to amend. We affirm the trial courts orders with respect to Kohans cause of action for general negligence. However, with respect to the cause of action for dangerous condition of public property, we reverse and remand for further proceedings.

BACKGROUND

The allegations of the operative complaint state the 70-year-old plaintiff tripped and fell when she reported to the Inglewood Superior Court courthouse for jury duty.[1] The complaint alleged two causes of action, general negligence and premises liability. Both causes of action are based on the same facts. The complaint alleges the defendants had been performing construction and/or repairs in the area between the parking structure and the courthouse entrance and the defendants had control of this area.

The complaint asserted: The only way to gain entrance to the courthouse was to walk through the construction and/or repair zone. Had plaintiff not proceeded to report for jury duty she would have been subject to civil and criminal penalties. The construction and/or repair site was identified by the placement of yellow tape wrapped around several lampposts at a height from 2 to 4 feet above the ground.

The complaint continued: In order to gain entrance to the courthouse, plaintiff had to step over the tape. . . . [A]s plaintiff attempted to step over the tape, the . . . tape became caught around her foot, causing her to lo[]se her balance and fall to the ground and sustain personal injuries . . . . The fact that the tape was not wrapped tightly around the lampposts and potential jurors had to step over the tape to report for jury duty created a dangerous condition of which the defendants had notice but failed to take corrective action to protect and preserve the safety of jurors who had been summoned to the courthouse, in violation of their statutory duty as set forth in Government Code  835 and 835.2.

The complaint alleged the dangerous condition created a reasonably foreseeable risk of injury to prospective jurors entering the courthouse with reasonable care and the dangerous condition was a substantial factor in causing the plaintiffs injuries.

CONTENTIONS

Kohan contends the complaint sets forth sufficient facts to state a cause of action against the defendants and the trial court abused its discretion in dismissing her lawsuit.

DISCUSSION

1. General principles.

a. On review of an order sustaining a demurrer.

A demurrer tests the legal sufficiency of the complaint . . . . (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) On appeal from an order of dismissal after an order sustaining a demurrer, we independently evaluate the complaint, construing it liberally, giving it a reasonable interpretation, reading it as a whole, and viewing its parts in context. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865, citing Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We treat the demurrer as admitting all material facts properly pleaded and determine whether the complaint states facts sufficient to constitute a cause of action. (City of Dinuba, supra, at p. 865.)

If the complaint states any possible legal theory, the trial courts order sustaining the demurrer must be reversed. (Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 86.) Whether a plaintiff will be able to prove the allegations of the complaint is not relevant. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) We assess the sufficiency of the allegations of the complaint, not the truth or accuracy of the factual allegations. (216 SutterBay Associates v. County of Sutter (1997) 58 Cal.App.4th 860, 866.)

b. Dangerous condition of public property.

A governmental entity is not liable for personal injury except as provided by statute. (Gov. Code, 815, subd. (a).) Under the Tort Claims Act (Gov. Code,  830 et seq.), liability is imposed for injury resulting from the public entitys creation, or its failure to warn of a dangerous condition on or near its property.

Dangerous condition is defined by statute as a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such 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).) A condition is not a dangerous condition . . . if the trial or appellate court, viewing the evidence most favorably to plaintiff, determines as a matter of law that the risk created by the condition was 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 when such property or adjacent property was used with due care in a manner in which was reasonably foreseeable that it would be used. (Gov. Code,  830.2.)

A plaintiff must prove that her injuries were proximately caused by the dangerous condition, [and] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred . . . . (Gov. Code, 835.)

Although whether a given set of circumstances creates a dangerous condition generally is a question of fact, a trial court properly may sustain a demurrer if the facts pleaded by the plaintiff as a matter of law cannot support the finding of the existence of a dangerous condition within the meaning of the statutory scheme. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at pp. 1133-1139.)

2. Demurrers properly sustained as to cause of action for general negligence.

As to the cause of action for general negligence, [t]here is no common law governmental tort liability in California; and except as otherwise provided by statute, there is no liability on the part of a public entity for any act or omission of itself, a public employee, or any other person. [Citations]. (Cowing v. City of Torrance (1976) 60 Cal.App.3d 757, 761.)

Under this rule, the trial court properly sustained the defendants demurrers to the cause of action for general negligence without leave to amend.

3. The cause of action for dangerous condition of public property.

As to the cause of action alleging a dangerous condition of public property, it appears Kohans complaint is adequate. The complaint asserts Kohan was summoned to the courthouse for jury duty. In order to enter the courthouse, Kohan had to step over a yellow tape the defendants had placed across the entrance to the courthouse. As Kohan attempted to step over the tape, she tripped and suffered personal injuries. The complaint further alleges the defendants had sufficient actual notice of the condition to have taken protective measures and that the dangerous condition created a reasonably foreseeable risk of injury to prospective jurors exercising reasonable care when entering the courthouse.

Assuming as we must that the factual allegations of the complaint are true (City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865), these allegations of a dangerous condition of public property are sufficient to withstand demurrer.

The defendants resist this conclusion by arguing Kohan failed to exercise due care in that she ignored yellow caution tape that was put in place to keep her out of danger. They assert Kohans conscious decision to step over the yellow caution tape prevents liability for a dangerous condition of public property under the rule that a public entity is only required to maintain its property in a way that is safe for careful use. [Citation.] (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 6.)

Milligan and the other cases cited by the defendants are not on point. In Milligan, the plaintiffs decedent intentionally stepped over a railing and jumped off a bridge, committing suicide. Milligan affirmed dismissal following an order sustaining a demurrer without leave to amend. Milligan found there was no indication the bridge was unsafe for those using due care. (Milligan v. Golden Gate Bridge Highway & Transportation Dist., supra, 120 Cal.App.4that pp. 8-9; see also Biscottiv. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 561 [child injured after climbing on a bicycle propped against a chain link fence in order to pick oranges from a tree on other side of the fence];Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1468 [judgment on the pleadings affirmed against a 15-year-old who climbed a freeway fence, ran across a freeway and was struck by a truck]; Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1385 [summary judgment in favor of city upheld where danger involved in riding a bicycle down a steep, wet and slippery hill in a city park was readily apparent, even to a child]; Dominguez v. Solano Irrigation Dist. (1991) 228 Cal.App.3d 1098, 1103-1104 [mother drowned trying to save her child and another child who fell into a canal after climbing an eight-foot sound wall]; Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 132 [diving into a shallow lagoon from a municipal pier was obviously dangerous].)

In the words of Fredette, no member of the public may ignore the notice which the condition itself provides. (Fredette v. City of Long Beach, supra, 187 Cal.App.3d at p. 132.) Here, according to the defendants, Kohan ignored an obvious risk of danger.

The factor that distinguishes the case at bar from the cases cited by the defendants is the allegation that Kohan was summoned to the courthouse to report for jury duty and thus was obliged to enter the building. According to the allegations of the complaint, the defendants placed yellow tape across the only entrance to the courthouse. Stepping over yellow tape two or three feet off the ground in order to enter the courthouse after being summoned to report for jury duty simply cannot be considered the equivalent of jumping off a bridge, climbing a fence or a sound wall or diving into a shallow lagoon from a pier. As a prospective juror, Kohan had an obligation to report to the courthouse for jury duty and her complaint alleges that in order to do so, she had to step over yellow tape the defendants put in place.

In sum, even accepting that the defendants placed the yellow caution tape in place to provide warning of danger, whether stepping over the tape shows lack of due care is a question of fact that cannot be determined on demurrer. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148, citing Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1133; Dominguez v. Solano Irrigation Dist., supra, 228 Cal.App.3d at p. 1103.) Consequently, the order sustaining the demurrers to the cause of action for dangerous condition of public property must be reversed.

4. The City of Inglewoods further contentions.

a. Absence of an appealable order as to the City of Inglewood

An order sustaining a demurrer without leave to amend may be reviewed on appeal only from an order of dismissal. (Beazell v. Schrader (1963) 59 Cal.2d 577, 579-580; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611.)

The City of Inglewood contends Kohans appeal should be dismissed because the record does not include a final judgment of dismissal as to the City of Inglewood. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) The City urges this court to construe its brief as a motion to dismiss Kohans appeal for failure to appeal from an appealable order. (Cohen v. Equitable Life Assurance Society (1987) 196 Cal.App.3d 669, 671.)

The record in Hill, the case on which the City of Inglewood relies, did not include an appealable order because the plaintiff objected to its entry. Hill declined to extricat[e the plantiff] from a problem of his own making . . . . (Hill v. City of Long Beach, supra, 33 Cal.App.4th at p. 1695.) Here, the absence of an appealable order appears to be an incidence of inadvertence or mistake in that the record includes an order of dismissal as to the County of Los Angeles. Additionally, the trial courts minute order sustaining the demurrers without leave to amend concludes by stating the case is dismissed. ~(AA 320

We therefore construe the order of dismissal as to the City of Inglewood to include a judgment of dismissal. (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 921; Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 445; California State Employees Assn. v. State of California (1973) 32 Cal.App.3d 103, 106, fn. 1.)

b. Ownership of the property.

In connection with its demurrers to Kohans first and second amended complaints, the City of Inglewood asked the trial court to take judicial notice of the county assessors parcel map of the location where the fall occurred. The City of Inglewood asserted the parcel map demonstrates the location at issue is owned and controlled by the County of Los Angeles, not the City of Inglewood. The City of Inglewood suggests this is an appropriate basis upon which this court might affirm the dismissal of Kohans lawsuit as to the City of Inglewood.

Although the City of Inglewood may yet prevail on this issue, the conclusion it did not own or control the premises is based on inferences drawn from the county assessors parcel map which this court is not prepared to make at the demurrer stage of the proceedings. Additionally, the City of Inglewood did not renew its request for judicial notice in connection with its demurrer to the third amended complaint, which is the operative pleading, and it has not filed a request for judicial notice of the assessors parcel map in this court. Further, even if this court took judicial notice of the parcel map, it does not on its face demonstrate ownership of the premises at issue.

DISPOSITION

The judgments are affirmed with respect to the cause of action for general negligence but reversed and remanded for further proceedings on the cause of action based on the theory of dangerous condition of public property. Kohan shall recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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[1] The operative complaint is the third amended complaint which is not included in the appellants appendix. Based thereon, the County of Los Angeles asserts this court may affirm the order of dismissal. (Bains v. Moores (2009) 172 Cal.App.4th 445, 478.)

We decline the invitation. In Bains, the plaintiffs failed to include the operative complaint or the demurrers in the record. (Bains v. Moores, supra, 172 Cal.App.4th at p. 478.) Here, the demurrers are in the appellants appendix and we previously granted the request of the County of Los Angeles to augment the record on appeal to include the third amended complaint. We therefore reach the merits of the issues presented.