Brenner v. City of El Cajon

6 Cal. Rptr. 3d 316, 113 Cal. App. 4th 434
California Court of Appeal·Decided November 10, 2003·No. D040579·Published·Cited by 41 cases

Opinion

6 Cal.Rptr.3d 316 (2003)
113 Cal.App.4th 434

Shirley BRENNER, Plaintiff and Appellant,
v.
CITY OF EL CAJON, Defendant and Respondent.

No. D040579

Court of Appeal, Fourth District, Division One

November 10, 2003

*318 Salim Khawaja, San Diego, CA, for Plaintiff and Appellant.

Daley & Heft, Robert W. Brockman Jr., and Scott E. Patterson, Solana Beach, CA, for Defendant-Respondent.

*317 McDONALD, J.

Appellant Shirley Brenner was injured when struck by a car as she was walking across Chase Avenue in the City of El Cajon (City). Brenner sued City and, after demurrers were sustained to her original and first amended complaints, filed a second amended complaint alleging City was liable for a dangerous condition on public property. City's demurrer to Brenner's second amended complaint was sustained without leave to amend. Brenner asserts her second amended complaint adequately pleads facts showing a dangerous condition of public property; alternatively, she asserts it was an abuse of discretion to refuse her the opportunity to again amend her complaint.

I

FACTUAL AND PROCEDURAL BACKGROUND

On August 21, 2000, Brenner was walking across Chase Avenue near its intersection with Estes Street in City. While crossing the street, she was struck by a car and suffered significant injuries.

A. The Prior Iterations of the Complaint

Brenner's original complaint as against City pleaded a single claim for negligence. She alleged that City negligently "designed, maintained, serviced, controlled, managed, monitored, created and operated" its streets; and City knew or should have known of the dangerous conditions on Chase Avenue, but failed to take steps to make the condition safe because it negligently did not "install safety devices to control the automobile traffic on Chase Avenue" or "take steps to prevent harm and injury to the public." City demurred to the complaint, arguing a general negligence *319 claim does not lie against a public entity. City also argued that, to the extent Brenner's complaint was construed as attempting to state a statutory claim under Government Code section 835[1] for a dangerous condition of public property based on City's not installing safety devices to control the automobile traffic on Chase Avenue, she failed to state facts sufficient to show a dangerous condition under section 830.4. The court sustained City's demurrer but granted Brenner leave to amend her complaint, cautioning that she should evaluate whether she could allege a viable claim under section 835.

Brenner then amended her complaint. Although she retitled her claim against City as "Dangerous Condition," her reformulated claim essentially realleged the allegations contained in her original negligence claim, adding only that City had "actual knowledge ... of the dangerous condition, or changed conditions [that] made the road [a] dangerous condition, and that created a substantial risk or unreasonable risk" on Chase Avenue, and City had been in possession of that knowledge for "several years." City again demurred, arguing the complaint's only alleged dangerous condition of public property was the City's failure to install safety control devices for the street, which under section 830.4 is deemed not to be a dangerous condition.

Brenner opposed the demurrer, asserting the Chase/Estes intersection constituted a dangerous condition. Brenner noted there was a bus stop, a park and a convenience store at the intersection that resulted in high pedestrian traffic across the intersection; notwithstanding these facts, City did not install safety devices at the intersection. The court's tentative ruling was to sustain the demurrer and deny Brenner leave to amend because the only allegation of a dangerous condition was City's failure to install safety devices to control traffic at the intersection. After oral argument, the court sustained the demurrer but again gave Brenner leave to amend her complaint.

B. Second Amended Complaint

Brenner's second amended complaint reasserted the set of allegations contained in her first amended complaint, but added City knew or should have known that, because of the attraction created by two bus stops, a park, a convenience store and a middle school at or near the Chase/Estes intersection, many pedestrians would be attracted to the area and would use the intersection to cross Chase Avenue. Brenner alleged that City was aware of the high number of pedestrians using the street and intersection, as well as the increased volume and speed of cars traveling on Chase Avenue and physical changes made to Chase Avenue[2] that posed risks to pedestrians; however, City did not take steps to make the intersection safe for pedestrians because it "failed to install traffic [regulatory] devices, traffic safety devices, traffic control devices, signs or traffic signs, or take any steps to manage, control, or reduce the automobile traffic flow or speed on Chase Avenue and/or ... failed to take steps to prevent increased risk of harm and injury to the pedestrians...."

*320 City again demurred, noting Brenner still had not alleged any aspect or condition of the roadway itself that was dangerous and instead merely reiterated her claims that it was the absence of traffic safety or control devices that was the dangerous condition for which City was liable. City pointed out that under sections 830.4 and 830.8, as well as controlling case law (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 45 Cal.Rptr.2d 657 and Paz v. State of California (2000) 22 Cal.4th 550, 93 Cal.Rptr.2d 703, 994 P.2d 975), City could not be held liable based solely on its failure to install safety devices. In opposition, Brenner argued the complaint adequately alleged a dangerous condition.[3]

The court sustained City's demurrer without leave to amend, and this appeal followed.

II

ANALYSIS

A. Governing Legal Principles

A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. (§ 815.) Section 835 is the sole statutory basis for a claim imposing liability on a public entity based on the condition of public property. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829, 15 Cal.Rptr.2d 679, 843 P.2d 624.) Under section 835, a public entity may be liable if it creates an injury-producing dangerous condition on its property or if it fails to remedy a dangerous condition despite having notice and sufficient time to protect against it. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939, 67 Cal.Rptr.2d 454.)

To state a cause of action against a public entity under section 835, a plaintiff must plead: (1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it. (§ 835; Vedder v. County of Imperial (1974) 36 Cal.App.3d 654, 659, 111 Cal.Rptr. 728.) Section 830 defines a "[d]angerous condition" as "a condition of property that creates a substantial (as distinguished from a m

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Brenner v. City of El Cajon, 6 Cal. Rptr. 3d 316, 113 Cal. App. 4th 434 (Cal. Ct. App. 2003).

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