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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Brett Jerome Bronstad, et al. v . City of Lompoc, et al.

Case No: 19CV05334
Hearing Date: Mon Feb 03, 2020 9:30

Nature of Proceedings: Demurrer to First Amended Complaint; Demurrer to Portions of Plaintiff's First Amended Complaint; Motion Strike Claims for Punitive Damages

 

Brett Jerome Bronstad, et al., v. City of Lompoc, et al., #19CV05334, Judge Sterne

 

Hearing Date:                February 3, 2020

 

Matter:                          Demurrers (2) and Motion to Strike

                                 

Attorneys:                    

For Plaintiff: Lawrence L. Conlan (Capello & Noël)

For Defendant City of Lompoc: Matthew K. Tom (Aleshire & Wynder – El Segundo)

For State of Cal. Defendants: Gary Ostrick, Deputy Attorney General

 

  Tentative Ruling:

1.    The court Sustains defendant City of Lompoc’s demurrer to the first amended complaint of plaintiffs Brett Jerome Bronstad; Sarah Bronstad; Jessica G. Garcia, an individual and successor in interest to decedent Michael Garcia; and Michael H. Garcia, an individual and successor in interest to decedent Michael Garcia, without leave to amend.

 

2.    The court Sustains the demurrer of defendants State of California, acting by and through the California Highway Patrol (CHP), and Officer Kevin McCool to the fourth and fifth causes of action in the first amended complaint of plaintiffs Brett Jerome Bronstad; Sarah Bronstad; Jessica G. Garcia, an individual and successor in interest to decedent Michael Garcia; and Michael H. Garcia, an individual and successor in interest to decedent Michael Garcia, without leave to amend.

 

3. The court grants the motion of defendants State of California, acting by and through the California Highway Patrol, and Officer Kevin McCool to strike language from the first amended complaint of plaintiffs Brett Jerome Bronstad; Sarah Bronstad; Jessica G. Garcia, an individual and successor in interest to decedent Michael Garcia; and Michael H. Garcia, an individual and successor in interest to decedent Michael Garcia, without leave to amend. The court orders stricken from the first amended complaint the following portion of ¶46 in the first cause of action: “and because of the reckless and conscious disregard for public safety demonstrated by … McCool, Plaintiffs are also entitled to punitive damages”; and prayer #4 at page 16, line 23.

 Discussion:

A.    First Amended Complaint (FAC): In their FAC, plaintiffs Brett Jerome Bronstad; Sarah Bronstad; Jessica G. Garcia, an individual and successor in interest to decedent Michael Garcia; and Michael H. Garcia, an individual and successor in interest to decedent Michael Garcia, allege as follows:

 

In the late afternoon of October 1, 2018, Brett Bronstad (Bronstad) and decedent Michael Garcia (Garcia) were driving south on US 101 near Refugio State Beach. [FAC ¶¶11, 12] Dinara Arevalo approached them from behind in a small SUV driving at a high rate of speed. Arevalo was having a mental breakdown, was in a highly agitated state, and not fully aware of what she was doing. Earlier that afternoon, Arevalo had been reported to defendant Lompoc Police Department, a subordinate agency of defendant City of Lompoc (Lompoc Police), as having a mental breakdown and brandishing a knife. Lompoc Police and then defendant California Highway Patrol (CHP) failed to take reasonable steps to detain Arevalo, and instead negligently and recklessly created a dangerous situation that increased the risk of harm to the public generally and to Bronstad and Garcia specifically. The only reason Arevalo was driving on US 101 at that moment was because of the negligent and reckless conduct of Lompoc Police and their employees, and the negligent and reckless conduct of CHP and their employee, defendant Officer Kevin McCool. [FAC ¶12] Does 1-10 are officers employed by Lompoc Police. [FAC ¶7]

 

As Arevalo attempted to pass the truck Bronstad was driving, she clipped his rear bumper, sending both vehicles spinning and tumbling off the road. Bronstad suffered extensive personal injuries that continue to impact his physical and emotional well-being and his livelihood. Garcia endured substantial pain and suffering, later went into a coma, and passed away in the days following the crash. He is survived by his adult children Plaintiffs Jessica and Michael H. Garcia. [FAC ¶13]

 

On October 1, 2018, shortly after 4:00 p.m., Lompoc Police were called for a “medical assist” and alerted to a domestic disturbance at an apartment building located in the City of Lompoc. [FAC ¶15] Arevalo’s family reported to Lompoc Police that Arevalo was suffering from a mental health breakdown and was brandishing a knife. After making contact with her by phone, Lompoc Police confirmed that she was “very agitated and disorganized.” Lompoc Police were aware at the time that Arevalo required mental health services and was a danger to herself and others. [FAC ¶16] When Does 1-10 made contact with Arevalo, they failed to formulate or implement a reasonable plan to approach Arevalo, and instead reacted hastily and excessively as she took off walking. The officers knew or should have known that their actions would exacerbate Arevalo’s distress and cause her to flee in her vehicle using public roads. [FAC ¶17] Does 1-10 failed to act in a reasonable manner or take appropriate steps to detain Arevalo, as any reasonable law enforcement officer would have done in their situation as allowed by law. They acted in a manner that they knew or should have known would cause Arevalo to flee in her vehicle. [FAC ¶18] Does 1-10 followed Arevalo through Lompoc, identifying her as “5150” and having a mental breakdown. [FAC ¶21] Does 1-10 alerted CHP to the situation and followed Arevalo onto Highway 1. They broke off their pursuit due to the risks on Highway 1, including a history of fatal accidents. Arevalo slowed and she was not passing vehicles. [FAC 22-23]

 

McCool was alerted. He was located on the right shoulder of Highway 1 near mile-marker 7, approximately 8 minutes away from Arevalo. [FAC ¶22] McCool failed to adequately assess the risks and potential options available to him to halt Arevalo on Highway 1. Instead, he recklessly commenced pursuing Arevalo on a far busier road with a far greater risk of danger. [FAC ¶25] McCool was trained, or should have been trained to deploy a spike strip under the circumstances, as a safe alternate measure on a roadway with little to no traffic. [FAC ¶26] McCool began following Arevalo after she passed him, specifically not pursuing her, until she entered US 101 approximately seven miles south of his location. [FAC ¶26] McCool failed to adequately assess the options available to him and failed to consider the opportunity to safely detain Arevalo on Highway 1 using a spike strip where there was little to no traffic and much less risk to Arevalo and to the general public. [FAC ¶29] McCool knew or should have known that engaging in a pursuit there was far too dangerous to Arevalo, himself and the general public. Instead, McCool recklessly commenced a dangerous high-speed chase. [FAC ¶29]

 

The causes of action in the FAC are: 1) negligence against Does 1-10 and McCool; 2) vicarious liability against Lompoc Police and CHP; 3) negligent operation of a vehicle against Lompoc Police and CHP; 4) negligence per se against all defendants; 5) dangerous condition of public property against Lompoc Police and CHP; 6) wrongful death, Jessica and Michael H. Garcia against all defendants; and 7) loss of consortium, Sarah Bronstad against all defendants. Plaintiffs seek compensatory damages and costs. They seek punitive damages against Does 1-10 and McCool.

 

B. City of Lompoc’s Demurrer: Defendant City of Lompoc (Lompoc) demurs to all seven causes of action on the ground that they are barred by applicable government immunities pursuant to Government Code §§ 815, 815.2, 818.2, 820.2, 845, 846 and plaintiffs fail to allege facts sufficient to state the causes of action against Lompoc. Plaintiffs oppose the demurrer.

 

Lompoc demurs to the first cause of action but it is not a defendant in that cause of action. Lompoc has not filed a demurrer on behalf of Doe defendants.

 

1. Demurrer Standards: The court’s only task in ruling on a demurrer is to determine whether the complaint states a cause of action. Moore v. Regents of University of California, 51 Cal.3d 120, 125 (1990). The court treats “the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law”; considers “matters which may be judicially noticed”; and gives “the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” Evans v. City of Berkeley, 38 Cal.4th 1, 6 (2006) [internal quotation marks and citations omitted]. The court also considers the reasonable inferences that may be drawn from the properly pleaded material facts. Reynolds v. Bement, 36 Cal.4th 1075, 1083 (2005). Questions of fact requiring the consideration and weighing of evidence are unsuitable for resolution on demurrer. M.F. v. Pacific Pearl Hotel Mgmt LLC, 16 Cal.App.5th 693, 703 (2017).

 

2. Duty of Care: Lompoc contends plaintiffs’ allegations fail to establish any duty of care owed to them. The second, third, fourth, sixth, and seventh causes of action against Lompoc all sound in negligence. To state a cause of action for negligence, a plaintiff must allege that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the plaintiff’s injuries. John B. v. Superior Court, 38 Cal.4th 1177, 1188 (2006).

 

“Duty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection. [Citations] In considering whether one owes another a duty of care, several factors must be weighed including among others: “[The] foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]”

 

Peterson v. San Francisco Community College Dist., 36 Cal.3d 799, 805-806 (1984) [citation omitted].

 

“As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’” Davidson v. City of Westminster, 32 Cal.3d 197, 203 (1982) (“Davidson”).

 

“Application of these general principles in the area of law enforcement and other police activities has produced some confusion and conflict. To an extent, the concepts are muddied by widely held misconceptions concerning the duty owed by police to individual members of the general public.” Williams v. State of California, 34 Cal.3d 18, 23-24 (1983) (“Williams”). “[A]lthough ‘no special relationship may exist between members of the California Highway Patrol and the motoring public generally, or between the Patrol and stranded motorists generally’ [citation], when the state, through its agents, voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person or organization.” Id. at 24 [italics added]. “The fact that plaintiff as a member of the motoring public might have been a reasonably foreseeable victim, by itself, is not enough to establish a special relationship with the officers or impose on them a duty to use due care.” Lehto v. City of Oxnard, 171 Cal.App.3d 285, 291 (1985).

 

Plaintiffs focus on the language in the Williams decision, emphasizing that “[t]he officers did not create the peril in which plaintiff found herself; they took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed….” Id. at 27. Plaintiffs distinguish the situation here where they allege affirmative acts by Lompoc officers in reacting hastily and excessively, thereby causing Arevalo to flee in her vehicle. But, in Williams, the police were interacting with “a certain member of the public.” So the case turned on whether the officers took affirmative action that increased or changed the risk of harm to that individual.

 

Here, Lompoc officers had no interaction that assumed a protective duty to any “certain person,” let alone Bronstad and Garcia. There is no special relationship with Bronstad and Garcia. Without a special relationship, there is no duty, an essential element of negligence.

 

3. Immunity Pursuant to Gov’t Code §§ 845 and 846: As an additional ground for its demurrer, Lompoc claims it is immune from liability under Gov’t Code §§ 845 and 846.

 

Gov’t Code § 845 provides, in part: “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” In their opposition, plaintiffs argue that § 845 does not apply because the statute “was designed to protect from judicial review in tort litigation the political and budgetary decisions of policymakers, who must determine whether to provide police officers or their functional equivalents.” Leger v. Stockton Unified Sch. Dist., 202 Cal.App.3d 1448, 1463 (1988). The statute does not apply to allegations of an individual officer’s negligence. Mann v. State of California, 70 Cal.App.3d 773, 778-779 (1977). Lompoc does not respond to this argument in its reply. The court is satisfied that the immunity provided in § 845 does not apply to the present allegations.

 

Gov’t Code § 846 provides: “Neither a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody.” The statute’s commandment “may not be avoided by even the most clever verbal footwork.” Truong v. James, 168 Cal.App.3d 833, 835 (1985). The allegations in the FAC are not that Lompoc officers failed to make an arrest. Rather plaintiffs allege the affirmative actions that caused Arevalo to get in her car and flee. If there were a duty to Garcia and Bronstad, this immunity would not apply.

 

The immunities in Gov’t Code §§ 845 and 846 are not independent grounds for sustaining the demurrer.

 

4. Immunity Pursuant to Gov’t Code §§ 815, 815.2, 818.2, and 820.2: Lompoc argues these immunities with respect to the fourth cause of action, negligence per se.

 

In the negligence per se cause of action, plaintiffs allege: “Does 1-10 and Officer McCool caused the crash by their negligent failure to comply with their duty under Welfare and Institutions Code section 5150 to safely detain Arevalo when they had probable cause to do so, and instead only attempting to detain her using unsafe and inappropriate methods that created unnecessary risk to the public generally and to Plaintiffs specifically.” [FAC ¶64]

 

Lompoc argues that W&I Code § 5150(a) does not create a mandatory duty, rather, it is discretionary because of the use of the word “may” in the statute: “When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer … may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours….”

 

Gov’t Code § 820.2 provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Gov’t Code § 815.2(b) provides: “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

 

Plaintiffs argue that Gov’t Code § 820.2 immunity only applies to basic policy decisions. [Opposition 17:7-12] But it can apply to police officers’ discretionary decisions that are not “basic policy decisions.”

 

Discretionary immunity under section 820.2 has been found to apply to many areas of police work. Courts have found the following to constitute discretionary decisions for which police officers are immune under section 820.2: (1) the decision to pursue a fleeing vehicle; (2) the decision to investigate or not investigate a vehicle accident; (3) the failure to make an arrest or to take some protective action less drastic than arrest; (4) the decision whether to use official authority to resolve a dispute; and (5) the decision whether to remove a stranded vehicle.

 

Conway v. County of Tuolumne, 231 Cal.App.4th 1005, 1015 (2014) [citations omitted]. Gov’t Code § 820.2 “applies when the public employee’s act or omission resulted from the exercise of discretion, even if such discretion is abused.” Id. at 1021.

 

Plaintiffs argue that W&I Code § 5150 “confers a mandatory duty on the City and its officers to conduct detentions in a manner that does not unreasonably increase the risk to the individual and the general public.” [Opposition 14:23-25] They also argue that statements of legislative intent in § 5150 “support a reasonable inference that when, as here, a law enforcement officer makes a decision to detain an individual under Section 5150, a mandatory duty exists under the statute to conduct the detention in a manner that does not unnecessarily increase the risk to the general public.”

 

Plaintiffs cite Haggis v. City of Los Angeles, 22 Cal.4th 490 (2000) (Haggis). There the court construed Gov’t Code § 815.6, which reads: “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.” The court stated that § 815.6 does not require “that the enactment establishing a mandatory duty itself manifest an intent to create a private right of action….” Haggis, 20 Cal.4th at 499. But the municipal ordinances at issue used the mandatory “shall” not the discretionary “may.” Nothing in Haggis suggests that the court should look to legislative intent to determine whether a statute using the term “may” is mandatory. On the contrary, W&I Code § 5150 has been interpreted as permissive, not mandatory. Julian v. Mission Community Hospital, 11 Cal.App.5th 360, 399 (2017); Adams v. City of Fremont, 68 Cal.App.4th 243, 273 n25 (1998).

 

Gov’t Code § 818.2 provides: “A public entity is not liable for an injury caused by … failing to enforce any law.” This statute “was designed to provide immunity for … the exercise of discretion by law enforcement officers in carrying out their duties.” Elton v. County of Orange, 3 Cal.App.3d 1053, 1059 (1970). As the court had determined that W&I Code § 5150 is not mandatory, this immunity applies to the fourth cause of action.

 

Lompoc also argues that it is not liable because Gov’t Code § 815(a), which abolishes common law or judicially declared forms of liability for public entities, requiring statutory liability. Legislative Committee Comments to Gov’t Code § 815. W&I Code 5150 does not create a private right of action against public employees or entities. Julian v. Mission Community Hosptial, supra, 11 Cal.App.5th 380-381.

 

The court concludes that Gov’t Code §§ 815, 815.2, 818.2, and 820.2 individually and in combination immunize Lompoc from liability under W&I Code § 5150. These immunities are an independent ground for sustaining the demurrer to the fourth cause of action.

 

In a single conclusory sentence, Lompoc says these immunities also apply to all the other causes of action. “A point which is merely suggested by [a party’s] counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.” In re Steiner, 134 Cal.App.2d 391, 399 (1955); Schaeffer Land Trust v. San Jose City Council, 215 Cal.App.3d 612, 619 (1989). A memorandum in support of a motion “must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” CRC 3.1113(b). “Issues not supported by citation to legal authority are subject to forfeiture.” People ex rel. Alzayat v. Hebb, 18 Cal.App.5th 801, 831 n10 (2017) (applying similar CRC 8.204(a)(1)(B) applicable to appeals). The court does not rely on these immunities for the ruling on the demurrer to causes of action other than the fourth.

 

5. Dangerous Condition of Public Property: The fifth cause of action is for dangerous condition of public property.

 

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’t Code § 835.

 

Plaintiffs allege that Lompoc Police have jurisdiction and control over the streets and roads within the City of Lompoc. [FAC ¶71] “Does 1-10, acting within the scope of their employment as employees of Lompoc Police, acted in a reckless, hasty and negligent manner during their interactions with Arevalo, exacerbating Arevalo’s distress and causing and/or failing to prevent her from fleeing in her vehicle on public roads. As a result, Does 1-10’s acts and/or omissions created a foreseeable and substantially increased risk of injury to members of the public and other road-users, including Plaintiffs, who at all relevant times were using the public roads in an otherwise reasonable and foreseeable manner.” [FAC ¶73]

 

Plaintiffs’ theory is that the dangerous condition was Arevalo’s presence on the public roads and the affirmative conduct of Lompoc Police officers was responsible for her presence on the roads. Plaintiffs rely on Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at 811, in which the court stated: “Nothing in the provisions of section 835, however, specifically precludes a finding that a public entity may be under a duty, given special circumstances, to protect against harmful criminal conduct on its property.” But, in that case, the plaintiff alleged “that defendants maintained the property in such a way so as to increase the risk of criminal activity.” Id. at 812. Specifically, she alleged “that the property was in a dangerous condition because the thick and untrimmed foliage and trees around the parking lot and stairway permitted the assailant to perpetrate his crime; she further alleges that defendants were aware of the condition and failed to take reasonable protective measures, including trimming the foliage or warning her of the danger.” Id.

 

The case makes clear that Gov’t Code § 835 liability for the actions of a public entity must be related to a defective condition of its property, not the actions of its police officers. A plaintiff must allege “some defect in the property itself and a causal connection is established between the defect and the injury.” Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1135 (2002). Courts reject claims that an injury caused by the criminal activity of a third person is attributable to a dangerous condition of the property where there is no “adequate showing that the property itself was in a defective condition.” Id. Plaintiffs fail “to point to any defective aspect of the purely physical condition of the property.” Id. at 1139. “A plaintiff’s allegations, and ultimately the evidence, must establish a physical deficiency in the property itself.” Cerna v. City of Oakland, 161 Cal.App.4th 1340, 1347 (2008).

 

Plaintiffs also rely on Green v. City of Livermore, 117 Cal.App.3d 82 (1981), implicitly overruled on other ground as stated in Lehto v. City of Oxnard, supra, 171 Cal.App.3d at 292. The court of appeal reversed a trial court’s judgment sustaining a demurrer to a dangerous condition of public property cause of action. In that case, police officers arrested an intoxicated driver but left the keys in the vehicle with two intoxicated passengers. One of those passengers drove the vehicle and had a serious accident injuring plaintiffs. Id. at 86. The court held: “Whether or not the keys in the Ford parked on the street was a dangerous condition of public property is properly a question of fact to be determined by a jury.” Id. at 90. Essentially the court determined that the stationary vehicle became a physical condition of property. The court finds the decision inconsistent with the later Supreme Court decision in Zelig v. County of Los Angeles and the Court of Appeal decision in Cerna v. City of Oakland discussed immediately above. In any event, the court will not extend the Green v. City of Livermore decision to vehicles being driven on a highway.

 

Even if what Lompoc officers did created a risk, that risk is not related to a condition of property. Nothing about the condition of Lompoc’s property facilitated Arevalo’s presence there or made her presence more dangerous.

 

Lompoc maintains it is not liable because the collision with Garcia and Bronstad’s vehicle occurred near Goleta, a substantial distance outside Lompoc. [FAC ¶12] A public entity can be liable for an injury occurring on property it neither owns nor controls. Bonanno v. Central Contra Costa Transit Authority, 30 Cal.4th 139, 151 (2003). In that case, the Court reasoned that the location of the Transit Authority’s bus stop could constitute a dangerous condition of property when, to reach it, a bus patron had to cross a busy thoroughfare at an uncontrolled intersection, which intersection the Transit Authority did not own or control. In that case, and others cited in it, the injury occurred on property adjacent to the public entity’s property.

 

In Osborn v. City of Whittier, 103 Cal.App.2d 609 (1951), the dangerous condition was a dump site where trash was burned. The court held that a plaintiff could state a cause of action for dangerous condition of city property for a fire that spread to plaintiff’s property that was 1,000 feet away from the dump. Id. at 616-617. “[L]iability is not, as a matter of law, dependent upon proximity of the damaged property to the dangerous condition, but is dependent upon the dangerous condition being a proximate cause of the damage, and that the question is one of fact.” Id. at 618.

 

It is unlikely that plaintiffs could prove that a condition of Lompoc property was the proximate cause of an injury some 30 miles away. But the distance of the harm from Lompoc is not determinative at the pleading stage. However, as discussed above, a defective physical condition of Lompoc’s property must cause the harm and that is not alleged here. The court will sustain the demurrer to the fifth cause of action.

 

6. Third Cause of Action for Negligent Operation of a Vehicle: In the third cause of action against Lompoc and CHP, plaintiffs allege that Does 1-10 operated their vehicles “in a reckless, hasty and thoughtless manner, and failed to act with due care and consideration for the safety of the general public and other road-users, including Plaintiffs.” [FAC ¶55] They also allege that Does’ negligent and reckless operation of their motor vehicles created a foreseeable and substantially increased risk to the general public and other road-users, including Plaintiffs.” [FAC ¶56] Specifically, plaintiffs allege that Does 1-10 followed Arevalo in her vehicle and “without due deliberation, care and consideration, tried, and again failed, to stop her while she drove through the City of Lompoc.” [FAC ¶21]

 

In demurring to this cause of action, Lompoc relies on the immunity in Veh. Code § 17004: “A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm or other emergency call.”

 

However, Veh. Code § 17001 provides: “A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment.” So, while Does 1-10 are immune from liability (plaintiffs do not assert the third cause of action against individuals), Veh. Code § 17004 does not provide immunity to the employer of a negligent operator of a motor vehicle. Brummett v. County of Sacramento, 21 Cal.3d 880, 885 (1978).

 

Lompoc also contends plaintiffs have failed to state facts sufficient to constitute a cause of action for negligent operation of a vehicle because they allege Lompoc Police officers had abandoned their pursuit of Arevalo and she had slowed and was not passing vehicles. [FAC 22-23] But whether the officers’ alleged negligence was the proximate cause of plaintiff’s injuries are questions of fact. City of San Jose v. Superior Court, 166 Cal.App.3d 695, 699 (1985), superseded by statute on other ground in Thomas v. City of Richmond, 9 Cal.4th 1154, 1162 (1995). Questions of fact requiring the consideration and weighing of evidence are unsuitable for resolution on demurrer. M.F. v. Pacific Pearl Hotel Mgmt LLC, 16 Cal.App.5th 693, 703 (2017).

 

As the cause of action sounds in negligence, it is subject to the discussion of duty above. But the grounds stated here are not independent grounds for sustaining the demurrer to the third cause of action.

 

7. Leave to Amend: For the reasons set forth above, the court sustains City of Lompoc’s demurrer to plaintiffs’ FAC. The question is whether to do so with or without leave to amend.

 

“If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.]” Hendy v. Losse, 54 Cal.3d 723, 742 (1991). “It is not up to the judge to figure that out.” Lee v. Los Angeles County Metropolitan Transportation Authority, 107 Cal.App.4th 848, 854 (2003). The plaintiff has the burden “to show what facts he or she could plead to cure the existing defects in the complaint.” McClain v. Octagon Plaza, LLC, 159 Cal.App.4th 784, 792 (2008). “The assertion of an abstract right to amend does not satisfy this burden. The plaintiff must clearly and specifically set forth the ‘applicable substantive law’ and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. Allegations must be factual and specific, not vague or conclusionary.” Rossberg v. Bank of America, N.A., 219 Cal.App.4th 1481, 1491 (2013) [internal quotations and citations omitted].

 

“If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment.” City of Stockton v. Superior Court, 42 Cal.4th 730, 747 (2007). But that court noted that denial of leave to amend is appropriate where “a cause of action is plainly and irremediably defective.” Id. The court stated: “leave to amend is properly granted where resolution of the legal issues does not foreclose the possibility that the plaintiff may supply necessary factual allegations.” Id.

 

Plaintiffs ask that the court grant leave to amend in the event it sustains the demurrer or any part of it. But plaintiffs do not suggest what specific facts they could add to establish themselves as persons with whom Lompoc or Does 1-10 have a special relationship as discussed in Section 2 above. And, as discussed in Section 4 above, the immunities preclude the fourth cause of action. As discussed in Section 5 above, plaintiffs have not alleged a dangerous condition of Lompoc’s property and the facts alleged make it clear that they cannot. Therefore, the court will sustain the demurrer without leave to amend. If, at the hearing, plaintiffs can show specifically what facts they could plead to cure the existing defects in the FAC, the court will consider granting leave to amend.

 

8. Order: The court Sustains defendant City of Lompoc’s demurrer to the first amended complaint of plaintiffs Brett Jerome Bronstad; Sarah Bronstad; Jessica G. Garcia, an individual and successor in interest to decedent Michael Garcia; and Michael H. Garcia, an individual and successor in interest to decedent Michael Garcia, without leave to amend.

 

C. CHP’s Demurrer: Defendant State of California, acting by and through the California Highway Patrol (CHP), and Officer Kevin McCool (collectively “State defendants”) demur to the fourth and fifth causes of action in the FAC. The grounds for the demurrer to the fourth cause of action for negligence per se are: 1) CHP is immune under Government Code § 815 because plaintiffs have not alleged a statutory basis for liability; 2) CHP did not have a duty to detain Arevalo under W&I Code § 5150; 3) McCool is immune from liability under Gov’t Code § 820.2; 4) State defendants are immune under Gov’t Code § 856(a); and 5) because McCool is immune from liability, CHP is immune under Gov’t Code § 815.2(b). The ground for the demurrer to the fifth cause of action is that plaintiffs fail to allege any defect in public property. Plaintiffs oppose the demurrer.

 

The court will not recite the demurrer standards set forth above with respect to Lompoc’s demurrer.

 

1. State Defendants’ Pleadings: CRC 2.109 provides that the page numbering of papers filed in trial court “must begin with the first page and use only Arabic numerals (e.g., 1, 2, 3).” In their combined demurrer and memorandum, State defendants do not number the first page, number the demurrer portion with Arabic numerals 1-3, number the tables with Roman numerals i.-v., then commence the memorandum with Arabic numeral 1, which is actually the tenth page of the document.

 

The requirement is not just a technical one. The court reviews pleadings very carefully, often finding it necessary to refer back to a pleading after reading an opposition or reply. When referring back, the court hopes to find help in the tables. But, when the page numbers in the tables do not match the actual pages in the electronically filed pdf document, the tables are of limited help.

 

2. Fourth Cause of Action for Negligence Per Se: In the analysis of Lompoc’s demurrer, the court determined that W&I Code 5150 is not mandatory and does not create a private right of action against public employees or entities. For these reasons fully discussed above, the court sustains State defendant’s demurrer to the fourth cause of action without leave to amend. (The court need not address the separate claim of immunity under Gov’t Code § 856.)

 

3. Fifth Cause of Action for Dangerous Condition of Public Property: The discussion above regarding Lompoc’s demurrer to the fifth cause of action applies equally here. Plaintiffs do not allege a physical defect in State property. The court sustains State defendant’s demurrer to the fifth cause of action without leave to amend.

 

4. Order: The court Sustains the demurrer of defendants State of California, acting by and through the California Highway Patrol (CHP), and Officer Kevin McCool to the fourth and fifth causes of action in the first amended complaint of plaintiffs Brett Jerome Bronstad; Sarah Bronstad; Jessica G. Garcia, an individual and successor in interest to decedent Michael Garcia; and Michael H. Garcia, an individual and successor in interest to decedent Michael Garcia, without leave to amend.

 

D. CHP’s Motion to Strike: State defendants move to strike from the FAC part of ¶46 in the first cause of action: “and because of the reckless and conscious disregard for public safety demonstrated by … McCool, Plaintiffs are also entitled to punitive damages”; and prayer #4 at 16:23. (Plaintiffs seek punitive solely from individual defendants, not CHP.) Plaintiffs oppose the motion.

 

“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. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” CCP § 436. “A motion to strike, like a demurrer, challenges the legal sufficiency of the complaint’s allegations, which are assumed to be true.” Blakemore v. Superior Court, 129 Cal.App.4th 36, 53 (2005).

 

“To support punitive damages, the complaint asserting one of those causes of action must allege ultimate facts of the defendant’s oppression, fraud, or malice.” Cyrus v. Haveson, 65 Cal.App.3d 306, 316-317 (1976); Spinks v. Equity Residential Briarwood Apartments, 171 Cal.App.4th 1004, 1055 (2009). “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” Clauson v. Superior Court, 67 Cal.App.4th 1253, 1255 (1998) [citations omitted].

 

Civil Code § 3294(a) provides that a plaintiff may recover punitive damages if he proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code § 3294(c)(1). “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civil Code § 3294(c)(2).

 

“Despicable conduct” refers to circumstances that are “base,” “vile,” or “contemptible.” College Hospital v. Superior Court, 8 Cal.4th 704, 725 (1994). Conduct must be “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” American Airlines v. Sheppard, Mullin, Richter & Hampton, 96 Cal.App.4th 1017, 1050 (2002). “The wrongdoer must act with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff's rights. Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” Lackner v. North, 135 Cal.App.4th 1188, 1210 (2006) [internal quotations and citations omitted].

 

Plaintiffs’ allegations in the FAC are that McCool recklessly and carelessly pursued Arevalo in a high speed chase on Hwy 101 instead of taking other measures, such as deploying a spike strip on Hwy 1. As alleged, the conduct is not “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people,” nor does it demonstrate extreme indifference to plaintiffs’ rights. The court will grant the motion to strike.

 

Plaintiffs assert an abstract right to amend, noting that this is the first challenge to their punitive damage allegations. They do not say now they will amend the complaint to state a claim for punitive damages. Therefore, the court will grant the motion without leave to amend. If, at the hearing, plaintiffs can show specifically what facts they could plead to cure the existing defects in the FAC, the court will consider granting leave to amend.

 

The court grants the motion of defendants State of California, acting by and through the California Highway Patrol, and Officer Kevin McCool to strike language from the first amended complaint of plaintiffs Brett Jerome Bronstad; Sarah Bronstad; Jessica G. Garcia, an individual and successor in interest to decedent Michael Garcia; and Michael H. Garcia, an individual and successor in interest to decedent Michael Garcia, without leave to amend. The court orders stricken from the first amended complaint the following portion of ¶46 in the first cause of action: “and because of the reckless and conscious disregard for public safety demonstrated by … McCool, Plaintiffs are also entitled to punitive damages”; and prayer #4 at page 16, line 23.

 
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