Pamela Lacey vs. Luis Galindo

Demurrer to Amended Complaint

Cal. Super. - 4th Dist.November 30, 2017

eo R N N n RA W N N N N N N N N N e e m m em p m p m em N O nt RA W N = O O R N S R W N = Oo 28 Collins Collins Muir + Stewart LLP 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 Michael L. Wroniak, Esq., State Bar No. 210347 Nicholas Caplin, Esq., State Bar No. 312343 COLLINS COLLINS MUIR +STEWART LLP ; . . ELECTRONICALLY FILED 750 The City Drive, Suite 400 Superior Court of Califomnia, Orange, CA 92868-4940 County of Orange (714) 823-4100 - FAX (714) 823-4101 02/08/2018 at 04-26-00 PI Clerk of the Superior Court Attorneys for Defendant By honique Ramirez, Deputy Clerk COUNTY OF ORANGE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE -- CENTRAL JUSTICE CENTER PAMELA LACEY AND GRACE LACEY, CASE NO. 30-2017-00958719-CU-PO-CIC [Assigned to Hon. Frederick P. Horn, Dept. C32] Plaintiffs, COUNTY OF ORANGE’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT V. ) ) ) ) ) ) COUNTY OF ORANGE, et al., ) ) [Concurrently filed with [Proposed] Order, Request Defendants. ) for Judicial Notice and the Declaration of Nicholas ) J. Caplin] ) ) DATE: March 14, 2018 ) TIME: 1:30 p.m. ) DEPT: C32 ) ) ) ) FAC Filed: 11/30/17 Trial Date: None TO PLAINTIFFS AND THEIR ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on March 14, 2018 at 1:30 PM, or as soon thereafter as this matter may be heard in Dept. C-23 of the above entitled Court located at, 700 Civic Center Drive West Santa Ana, CA 92701, Defendant County of Orange (“County”) will and hereby does demur to all causes of action against the County in Plaintiffs’ Pamela Lacey and Grace Lacey (collectively “Plaintiffs”) First Amended Complaint (“FAC”) pursuant to Code of Civil Procedure section 430.10. 20873 1 COUNTY DEMURRER TO THE FAC 1 The grounds for this demurrer are as follows: 2 1) The first cause of action for Dangerous Condition of Public Property fails to state facts 3 sufficient to constitute a cause of action under Code of Civil Procedure section 430.10(e) 4 because it establishes County is entitled immunity under Government Code section 831.4. 5 2) The second cause of action for Negligence fails to state facts sufficient to constitute a 6 cause of action under Code of Civil Procedure section 430.10(e) because it establishes 7 County is entitled immunity under Government Code section 831.4. 8 3) The fourth cause of action for Negligent Infliction of Emotional Distress fails to state 9 facts sufficient to constitute a cause of action under Code of Civil Procedure section 10 430.10(e) because it establishes County is entitled immunity under Government Code 11 section 831.4. 12 As required by Code of Civil Procedure section 430.41, County made a good faith attempt to 13 || meet and confer with Plaintiffs’ counsel regarding the pleading deficiencies in Plaintiffs’ FAC. 14 | Despite these efforts, Plaintiffs’ failed to respond to County’s meet and confer attempts. (See 15 || Declaration of Nicholas J. Caplin filed concurrently, q2, Exhibit A.) 16 This demurrer is based upon this notice, the attached Memorandum of Points and Authorities, 17 || the Declaration of Nicholas J. Caplin and exhibits attached thereto, all matters of which the Court 18 || may or shall take judicial notice, the documents and pleadings on file with this Court, and any other 19 [evidence that may be received by the Court at the hearing on this matter. 20 21 22 || DATED: February 8, 2018 COLLINS COLLINS MUIR + STEWART LLP 23 24 By; pox 25 NICHOLAS J. CAPLIN MICHAEL L. WRONIAK 26 Attorneys for Defendant 27 COUNTY OF ORANGE 28 Prone” a esa’ COUNTY DEMURRER TO THE FAC eo R N N n RA W N N N N N N N N N e e m m em p m p m em N O nt RA W N = O O R N S R W N = Oo 28 Collins Collins Muir + Stewart LLP 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant County of Orange (“County”) Demurred to Plaintiffs’ Complaint on grounds that trail immunity under Government Code section 831.4 barred Plaintiffs’ claims because Plaintiffs were hiking on Willow Canyon Trail in the Laguna Coast Wilderness Park, where it is alleged that Pamela Lacey was struck by a bicyclist and injured. In response to the County’s Demurrer, and in a clear attempt to plead around trail immunity, Plaintiffs’ filed a First Amended Complaint asserting that the trail they were walking on is a “fire access road”. Notwithstanding Plaintiffs’ calling it a “fire access road” trail immunity still applies because Willow Canyon Trail is not a public roadway, but a hiking trail that serves the secondary function of an access route for emergency vehicles to access the Laguna Coast Wilderness Park in an emergency. Because the County is immune from suit, Plaintiffs’ First Amended Compliant, and each and every cause of action therein, fails to state a cause of action against the County as a matter of law. Accordingly, the County respectfully requests the Court sustain this Demurrer without leave to amend. IL. THE FACTS AS PLED On November 6, 2016, Plaintiffs’ were hiking northbound on Willow Canyon Trail in Laguna Coast Wilderness Park. (FAC at 5-6). Plaintiffs’ specifically identified the location of the accident as 33°35°22.7”N, 117 °46°13.9”W, which establishes that Plaintiffs were walking on Willow Canyon Trail. (Id. at 5). During said hike, Defendant Luis Galindo (“Mr. Galindo”) allegedly approached on a bicycle in the opposite direction from an allegedly blind turn. (Id. at 6). Mr. Galindo allegedly collided with Plaintiff Pamela Lacey, causing her severe injuries. (/d.). All of Plaintiffs’ causes of action against the County are sourced from the allegedly dangerous condition of the trail, and as such, the County is entitled to immunity from this suit. Plaintiffs have additionally alleged that Willow Canyon Trail was “designed and used as a fire access road by Fire Department vehicles to assess and combat wildfires throughout Willow Canyon. (/d.). 20873 3 COUNTY DEMURRER TO THE FAC eo R N N n RA W N N N N N N N N N e e m m em p m p m em N O nt RA W N = O O R N S R W N = Oo 28 Collins Collins Muir + Stewart LLP 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 III. AUTHORITY FOR DEMURRER When any ground for objection to a FAC appears on the face thereof, the objection on that ground may be taken by a demurrer to the pleading. (Code of Civ. Proc. § 430.30(a)). The party against whom a FAC has been filed may object by demurrer when the pleading does not state facts sufficient to support a cause of action. (Code of Civ. Proc. § 430.10(e)). In considering the sufficiency of the allegations, courts consider the demurrer as admitting all properly pleaded material facts, “but not contentions, deductions or conclusions of fact or law.” (Align Technology, Inc. v. Bao Tran (2009) 179 Cal.App.4th 949, 958 (emphasis added)). Moreover, when a FAC is successfully challenged by a demurrer, the burden is on the plaintiff to demonstrate how the FAC might be amended to cure it of the defect. (Assoc. of Community Orgs. For Reform Now v. Dept. of Indus. Rel. (1995) 41 Cal.App.4th 298, 302). A court should sustain a demurrer if the FAC, liberally construed, fails to state a cause of action under any theory. (Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal. App.3d 222, 228). Iv. PLAINTIFFS’ FAC ESTABLISHES THAT THE COUNTY IS AFFORDED TRAIL IMMUNITY AND THEREFORE FAILS TO STATE FACTS SUFFICIENT TO SUPPORT A CAUSE OF ACTION Plaintiffs’ entire FAC is a bad faith attempt to obscure the fact that Plaintiffs were hiking on a public hiking trail. Their attempt to plead around trail immunity is clear by adding the contention that Willow Canyon Trail is a “fire access road.” The pleading tactic is further demonstrated from the list of allegedly “dangerous conditions” outlined in the FAC. (See FAC at 15-16 where Plaintiffs allege conditions generally attributable to public roadways, but not to hiking trails). As described in detail below, Plaintiffs’ causes of actions are a sham designed to obfuscate the fact that Plaintiffs were walking on Willow Canyon Trail, and that trail immunity is definitively applicable. In 1" In 20873 4 COUNTY DEMURRER TO THE FAC eo R N N n RA W N N N N N N N N N e e m m em p m p m em N O nt RA W N = O O R N S R W N = Oo 28 Collins Collins Muir + Stewart LLP 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 A. Trail Immunity Bars Plaintiffs’ Dangerous Condition Claims Here, taking Plaintiffs’ factual allegations as true, it remains clear that the County is entitled to immunity, and that this demurrer should be sustained. Government Code section 831.4 subdivisions (a) and (b) provide that: “[a] public entity ... is not liable for an injury caused by a condition of: (a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a_(1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways” or “(b) Any trail used for the above purposes.” This immunity is afforded to encourage public entities to open their property for public recreational use, because “the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.” (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 417). The trail immunity provided in subdivision (b) of the statute extends to trails that are used for the activities listed in subdivision (a), and to trails that are used solely for access to such activities. (Treweek v. City of Napa (2000) 85 Cal.App.4th 221, 224-229). Additionally, the immunity applies whether or not the trail is paved. (Armenio, supra, 28 Cal.App.4th at p. 418). Here, Plaintiffs’ have pled all facts necessary to establish that trail immunity is applicable. By providing the coordinates at which the incident allegedly occurred, Plaintiffs have given the Court everything it needs to conclusively dispose of this matter. Plaintiffs have admitted that the coordinates of the location are approximately 33°35°22.7”N, 117 °46°13.9”W. This establishes that Plaintiffs were walking on Willow Canyon Trail. (Request for Judicial Notice; Declaration of Nicholas J. Caplin (“Caplin Decl.”) at 5-6, Exhibits B and C). When input on any GPS-coordinate locator (such as Google Maps), the location is identified as such. Additionally, a Google search of the coordinates, demonstrate that the location is an unpaved hiking trail. (Request for Judicial Notice; Caplin Decl. at {5, Exhibits B-D). Finally, the OC Parks map of the Laguna Coast Wilderness Park clearly designates that Willow Canyon Trail is a hiking trail. (Caplin Decl. at q[7 20873 5 COUNTY DEMURRER TO THE FAC eo R N N n RA W N N N N N N N N N e e m m em p m p m em N O nt RA W N = O O R N S R W N = Oo 28 Collins Collins Muir + Stewart LLP 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 Exhibit E). Thus, Plaintiffs’ FAC establishes that their alleged injuries occurred on Willow Canyon Trail, an unpaved hiking trail within the Laguna Coast Wilderness Park and that County is entitled to trail immunity pursuant to section 831.4. Designating the location as “THE ROAD” does nothing to change the fact that Willow Canyon Trail is an unpaved hiking trail in the Laguna Coast Wilderness. (See Amberger-Warren v. City of Piedmont, 143 Cal. App. 4th 1074 (1st Dist. 2006) (holding that calling the incident location a “sidewalk” did not detract from the fact that the incident occurred on a trail that fit within the definition articulated in Government Code section 831.4)). Here, as in Amberger-Warren, Plaintiffs’ classification of the location as “THE ROAD” does not counteract the fact that Plaintiffs were hiking on Willow Canyon Trail, a hiking trail in the Laguna Coast Wilderness Park. Thus, Government Code section 831.4 is controlling, and the County respectfully requests that this Court sustain this demurrer without leave to amend. Further, the primary substantive change made from Complaint to FAC is the addition of the notion that Willow Canyon Trail serves as a “fire access road.” In order to support this contention, Plaintiffs have provided a list of “defective” design and maintenance contentions that are generally applicable to dangerous condition claims on public roadways, but are not applicable to Willow Canyon Trail. This is a disingenuous attempt to try and hide the fact that trail immunity is definitively applicable. Regardless of Plaintiffs’ characterization of the trail as a “fire access road”, design immunity still applies. In Hartt v. County of Los Angeles (2011) 97 Cal. App.4th 1391, the exact same argument being made in this matter was proposed and rejected. There, a bicyclist was riding on a trail when he was struck and killed by a county owned vehicle. (/d.). The bicyclist’s family brought a wrongful death action against the county and the county employee who had been driving the vehicle asserting causes of action for dangerous condition of public property claim and negligence. (Id.). The county moved for Summary Adjudication as to the dangerous condition of public property claim asserting trail immunity. (Id. at 1399). In opposition, plaintiffs argued that because the trail was also utilized by maintenance vehicles, trail immunity didn’t apply. (Id. at 1400). The trial court rejected this argument and granted summary adjudication. Plaintiffs’ appealed. (Id.). 20873 6 COUNTY DEMURRER TO THE FAC eo R N N n RA W N N N N N N N N N e e m m em p m p m em N O nt RA W N = O O R N S R W N = Oo 28 Collins Collins Muir + Stewart LLP 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 On appeal, and even after the county conceded that the trail was used by maintenance vehicles, the Court of Appeal affirmed summary adjudication and the applicability of trail immunity as follows: It appears that neither side in this lawsuit contests the fact that the trail was used for mixed purposes. On the one hand, the trail was clearly used for recreational purposes. On the other hand, the trail was used for maintenance access to various and sundry locations within the entire park. The question that must be answered is whether this dual or mixed use circumvents the immunity provided by the Legislature in Government Code section 831.4. We find no such exception on the face of the statute. We conclude by saying that the Legislature knows how to create statutory exceptions but apparently chose not to do so in this instance. (1d.). Here, as in Hartt, the use of Willow Canyon Trail as a “fire access” road does nothing to circumvent the application of trail immunity. Because there is no statutory exception for “mixed use” trails, all of Plaintiffs’ claims fall squarely within the trail immunity doctrine. As such, County respectfully requests that this Court grant this demurrer without leave to amend. B. Plaintiffs’ Negligence Claim is Actually Just a Reiteration of a Dangerous Condition Claim, and Is Barred by Trail Immunity A public entity cannot be sued for any action unless it is based on statute. (Gov't. Code § 815). Plaintiffs cite to Government Code sections 835 and 840.2 as the basis for their Negligence claim. However, Government Code sections 835 and 840.2 are both dangerous condition statutes: 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. (Govt. Code § 835). And An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity 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: 20873 7 COUNTY DEMURRER TO THE FAC eo R N N n RA W N N N N N N N N N e e m m em p m p m em N O nt RA W N = O O R N S R W N = Oo 28 Collins Collins Muir + Stewart LLP 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 (a) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or (b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Govt. Code § 840.2). As established above, a public entity is immune to suit for damages relating to the condition of a trail. (Govt. Code section 831.4). Thus, not only is Plaintiff’s Negligence claim an improper mechanism for asserting a cause of action against County, but it, like the dangerous condition claim, is precluded by trail immunity. C. Plaintiffs’ NIED Claim is Also Barred by Trail Immunity Where a tortious act causes emotional distress without any concurrent physical injury, the plaintiff may still recover emotional distress damages under a negligent infliction of emotional distress claim. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal. 3d 583, 590 (1989)). However, negligent infliction of emotional distress is not an independent tort, but the tort of negligence to which the traditional elements of a negligence cause of action apply. (Christensen v. Superior Court, 54 Cal. 3d 868, 884 (1991); Macy's California, Inc. v. Superior Court, 41 Cal. App. 4th 744, 748 (1st Dist. 1995). Thus, to support relief the defendant must owe a duty to the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two. (Burgess v. Superior Court, 2 Cal. 4th 1064, 1073 (1992); see also Plotnik v. Meihaus, 208 Cal. App. 4th 1590, 1608 (4th Dist. 2012), review denied, (Dec. 12, 2012)). A “bystander” claim alleges emotional distress as a proximate result of witnessing defendant's negligently-inflicted injury upon a person closely related to the plaintiff bystander. (Thing v. La Chusa, 48 Cal. 3d 644, 1073, 257 Cal. Rptr. 865 (1989). Here, as established above, the County is absolutely entitled to trail immunity for any and all injuries relating to the condition of Willow Canyon Trail. (See Section IV.A and IV.B). Plaintiff Grace Lacey has alleged that the “Defendants . . . had a duty to operate their property/bicycle in a 20873 8 COUNTY DEMURRER TO THE FAC eo R N N n RA W N N N N N N N N N e e m m em p m p m em N O nt RA W N = O O R N S R W N = Oo 28 Collins Collins Muir + Stewart LLP 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 reasonable safe and prudent manner . . . so as to not negligently collide or cause injuries to Plaintiff.” (FAC at q14). Because Grace Lacey’s NIED claim is based upon the allegedly dangerous condition of Willow Canyon Trail, and the County is entitled to immunity for all injuries arising out of the use of Willow Canyon trail, the County is entitled to immunity for this cause of action and, did not owe a duty to either Pamela or Grace Lacey. County therefore respectfully requests that this Court sustain this demurrer without leave to amend, and dismiss all of Plaintiffs’ facially unmeritorious causes of action. LP CONCLUSION Plaintiffs’ FAC conclusively establishes that the County is entitled to immunity for all of Plaintiffs’ alleged injuries. Therefore, County respectfully requests this Court sustain the Demurrer to Plaintiffs’ first, second, and fourth causes of action without leave to amend. DATED: February 8, 2018 COLLINS COLLINS MUIR + STEWART LLP NICHOLAS J. CAPLIN MICHAEL L. WRONIAK Attorneys for Defendant COUNTY OF ORANGE 20873 9 COUNTY DEMURRER TO THE FAC eo R N N n RA W N N N N N N N N N e e m m em p m p m em N O nt RA W N = O O R N S R W N = Oo 0 28 Collins Collins Muir + Stewart LLP 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 PROOF OF SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of Los Angeles. ) I am employed in the County of Los Angeles. I am over the age of 18 and not a party to the within action. My business address is 1100 El Centro Street, South Pasadena, California 91030. On this date, I served the foregoing document described as COUNTY OF ORANGE’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT on the interested parties in this action by placing same in a sealed envelope, addressed as follows: >] x [] SEE ATTACHED SERVICE LIST (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in South Pasadena, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at South Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in South Pasadena, California. BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY (BY ELECTRONIC FILING AND/OR SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List on: (Date) at (Time) FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. (BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (626) 243-1111 indicated all pages were transmitted. (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressees). Executed on Februar y 8, 2018 at South Pasadena, California. (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) - I declare that I am employed in the a nffember of the bar of this court at whose direction the service was made. ees mins emia co smartinez@ccmslaw.com 20873 10 COUNTY DEMURRER TO THE FAC 1 PAMELA LACEY AND GRACE LACEY v. COUNTY OF ORANGE, et al. 30-2017-00958719-CU-PO-CJC 2 CCMHS File #20873 3 SERVICE LIST 4 Brian J. McCormack, Esq. Luis Galindo q Sarah C. Serpa, Esq. 149 E. Bay Street, Apt. 1 5 CALLAHAN & BLAINE, APLC Costa Mesa, CA 92868 3 Hutton Centre Drive, Ninth FI. Santa Ana, CA 92707 City of Laguna Beach 6 (714) 241-4444; Fax: (714) 241-4445 505 Forest Ave. Attorneys for Plaintiffs, Laguna Beach, CA 92651 7 PAMELA LACEY and GRACE LACEY 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Collins Collins Muir + Stewart LLP 20873 750 The City Drive 11 Suite 400 Pts 1 aonen COUNTY DEMURRER TO THE FAC Fax (714) 823-4101