Preview
Electronically
Kevin J. Holl, SBN 124830 b Superior wt of Calif ty of San a1
Erin K. Muniga, SBN 317741 ON 5/12/2023
GORDON-CREED, KELLEY, By /s/ Ashlee Nelson
Deputy Clerk
HOLL, ANGEL & SUGERMAN, LLP
50 California Street, 34" Floor
San Francisco, CA 94111
Tel: (415) 421-3100
Fax: (415) 421-3150
holl@gkhs.com; muniga@gkhs.com
Exempt from filing fees per
Gov’t Code § 6103
Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SAN MATEO
11
REGINA GLORIOSO-EMERSON; ESTATE Case No. 22-CIV-05181
12 OF ROLANDO GLORIOSO; CHRISTIAN
CUNANAN; KATRYNE PIOQUINTO; JOHN
13
MATTHEW CUNANAN; and ESTATE OF Assigned for all purposes to Hon. Robert D. Foiles,
14 SUSANA GLORIOSO, Dept. 21
15 Plaintiffs, DEFENDANT CITY AND COUNTY OF SAN
FRANCISCO’S MEMORANDUM OF POINTS
16
V. AND AUTHORITIES IN SUPPORT OF
17 DEMURRER TO PLAINTIFFS’ COMPLAINT
CITY OF MILLBRAE; STATE OF
18 CALIFORNIA; CITY AND COUNTY OF [Filed concurrently with Notice of Demurrer;
19 SAN FRANCISCO; COUNTY OF SAN Demurrer; Declaration of Kevin J. Holl; and
MATEO; CITY OF SAN BRUNO; SAN Proposed Order]
20 FRANCISCO AREA RAPID TRANSIT
DISTRICT; SAN MATEO COUNTY DATE: July 28, 2023
21 TRANSIT DISTRICT; PENINSULA. TIME: 9:00 a.m.
22 CORRIDOR JOINT POWERS BOARD; and DEPT: 21, Courtroom 2J
DOES 1-20, JUDGE: Honorable Robert D. Foiles
23
Defendants.
24
25
Complaint Filed: December 9, 2022
26 Trial Date: Unassigned
27
28
Page |
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
TABLE OF CONTENTS
INTRODUCTION
IL STATEMENT OF FACTS
Til. ARGUMENT
A Standard Of Law On Demurrer.
B The Demurrer As To Plaintiffs’ First Cause Of Action Should Be Sustained
1 Plaintiffs Fail To State Facts Sufficient To Constitute A Cause Of Action For
Dangerous Condition Of Public Property (Wrongful Death) At To CCSF
10 Plaintiffs Fail To Plead Their Claim Of A Dangerous Condition Of Public
Property With Specificity, Rendering It Uncertain And Ambiguous 10
11
a. Ownership And Control 10
12
13 b. Existence Of A Dangerous Condition At The Time Of Injury 11
14 Dangerous Condition Created By Negligent Or Wrongful Act Or
Omission Of An Employee Of The Public Entity Within The Scope Of
15
Their Employment 12
16
Public Entity Had Actual Or Constructive Notice With Sufficient Time
17 Prior To The Injury To Have Taken Measures To Protect Against The
18 Dangerous Condition 13
19 The Demurrer As To Plaintiffs’ Second Cause Of Action Should Be Sustained 14
20 1 Plaintiffs Fail To State Facts Sufficient To Constitute A Cause Of Action For
21 Negligence (Wrongful Death) Because CCSF Cannot Be Held Directly Liable
For Common Law Claims Such As Negligence 14
22
To The Extent Plaintiffs Are Alleging Negligence Against CCSF Based On A
23 Theory Of Vicarious Liability, The Second Cause Of Action Is Uncertain And
24 Ambiguous. 15
25 To The Extent Plaintiffs Are Alleging Negligence Against CCSF Based On A
Theory Of Negligent Hiring Or Supervision, Plaintiffs Have Failed To State
26
Facts Sufficient To Constitute A Cause Of Action 16
27
The Demurrer As To Plaintiffs’ Third And Fourth Causes Of Action Should Be
28 Sustained. 17
Page 2
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
1 The Survival Actions Are Derivative And/Or Duplicative Of The First And
Second Causes Of Action 17
Unless Plaintiffs Are Able To Show That They Can Amend The Complaint To Cure
The Legal Defects Identified Herein, The Court Should Sustain The Demurrer Without
Leave To Amend. 18
IV. CONCLUSION 18
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 3
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
TABLE OF AUTHORITIES
CASES
Ankeny v. Lockheed Missiles & Space Co.
(1978) 88 Cal.App.3d 531
BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc.
(2004) 119 Cal.App.4th 848 18
Blank v. Kirwan
(1985) 39 Cal.3d 311 oo eecececeseeseseeseseseeseseeeseseessseesessesassessassesassesssassesesaesesassesesseseeasecseesesseneeess 8, 18
Brenner v. City of El Cajon
(2003) 113 Cal.App.4th 434 10, 12, 14, 15
10
Brigg v. State of California
11 (1971) 14 Cal.App.3d 490 13
12
Brown v. Poway Unified School Dist.
13 (1993) 4 Cal.4th 820 14
14 CA. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861 16, 17
15
16 Eastburn v. Regional Fire Protection Auth.
(2003) 31 Cal.4th 1175 14
17
18 Frantz v. Blackwell
(1987) 189 Cal.App.3d 91
19
Goddard v. Dept. of Fish & Wildlife
20 (2015) 243 Cal.App.4th 350
21
Grant v. McAuliffe
22 (1953) 41 Cal.2d 859 . 17
23 Guardian North Bay, Inc. v. Sup. Ct.
24 (2001) 94 Cal.App.4th 963
25 Lawrence v. Bank of America
(1985) 163 Cal.App.3d 431 18
26
27 Lopez v. Southern Cal. Rapid Transit Dist.
(1985) 40 Cal.3d 780 10, 14, 16
28
Page 4
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
McAllister v. Cnty. of Monterey
(2007) 147 Cal.App.4th 253 .... 18
Mechanical Contractors Assn. v. Greater Bay Area Assn
(1998) 66 Cal.App.4th 672
Mittenhuber v. City of Redondo Beach
(1983) 142 Cal.App.3d 1 10, 14
Nishihama v. City and County of San Francisco
(2001) 93 Cal.App.4th 298 14
Palm Springs Villas Il Homeowners Assn. Inc. v. Parth
(2016) 248 Cal. App.4th 268 17, 18
10 Quiroz v. Seventh Ave. Center
11
(2006) 140 Cal.App.4th 1256 17
12 Richmond Redevelopment Agency v. W. Title Guar. Co.
(1975) 48 Cal.App.3d 343
13
Schonfeldt v. Cal.
14
(1998) 61 Cal.App.4th 1462 18
15
Shoemaker v. Myers
16 (1990) 52 Cal.3d 1 17
17
State v. Superior Court of San Mateo County
18 (1968) 263 Cal.App.2d 396 13
19 Teter v. City of Newport Beach
20 (2003) 30 Cal.4th 446. 14
21 Van Kempen v. Hayward Area Park Etc. Dist.
(1972) 23 Cal.App.3d 822 16
22
23 Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112 14
24
25 STATUTES
26 Code of Civil Procedure § 377.30. 17
27
Code of Civil Procedure § 430.10, subd. (e). 8, passim
28
Page 5
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
Code of Civil Procedure § 430.10, subd. (f) 8, passim
Code of Civil Procedure § 430.30, subd. (a).
Government Code § 815 14
Government Code § 815.2 .o.cccccsecsessseecseeesseeseesescesesesseseeeeeeeeseeeseseseseseeeeeenees 15,16
Government Code § 815.4 .o.cccccsecesessseecseseesseessssescesessseeeeseeeseeeesessseseseeeeeenees 15,16
Government Code § 830, subd. (c)
Government Code §§ 830-835.4. 16
Government Code § 835 9, passim
10
Government Code §§ 840-840.6.......cccccesesseesesesesesesesesesesesesesesesesescsescseacsescseessescseacseacseeeseateeeeaceeas 16
11
12 Streets & Highways Code § 989, subd. (a)(2) 10
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 6
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
I INTRODUCTION
Defendant City and County of San Francisco (hereafter, “CCSF”) of course recognizes the sad
circumstances underlying the Complaint. While Plaintiffs (comprised of Decedents’ surviving heirs)
may potentially have actionable claims against other individuals and/or entities, CCSF is not one of
them.
CCSF respectfully requests that the Court sustain CCSF’s Demurrer to the Complaint pursuant to}
Code of Civil Procedure sections 430.10, subdivisions (e) and (f), on the following grounds: As to the
First Cause of Action, CCSF has no ownership or control of the underpass located in the City of
Millbrae and Plaintiffs have not pled any specific facts detailing how or why CCSF may be held liable
10 for any of the alleged injuries and damages described in Plaintiffs’ Complaint. As to the Second Cause
11 of Action, Plaintiffs seek to hold CCSF directly liable for negligence, but it is well-settled that common
12 law negligence claims cannot be brought against a public entity. Nor can Plaintiffs maintain a
13 negligence cause of action against CCSF under either theories of vicarious liability or negligent hiring,
14 supervision, and retention. Finally, because Plaintiffs’ Third and Fourth Causes of Action are
15 duplicative and derivative of the First and Second Causes of Action, they too must fail.
16 Il. STATEMENT OF FACTS
17 On or about December 23, 2021, at approximately 5:49 a.m. during a heavy rainstorm,
18 Decedents attempted to drive through a “below-grade underpass of Hillcrest Boulevard below at-grade
19 rail lines that run roughly parallel to and between Aviador Avenue and Hemlock Avenue” located in the
20 city of Millbrae (the “Underpass”) in their 2018 Nissan Frontier (“Pickup”). (Compl., §27, 29.) Due to
21 the heavy rain and storm occurring at that time, the Underpass filled with water which subsequently
22 rendered Decedents’ Pickup non-operational. (Compl., 30.) Decedents attempted to extricate
23 themselves from the Pickup with assistance from bystanders, but they were unable to do so and
24 ultimately drowned in their submerged Pickup. (Compl., {ff 30-31.)
25 On December 9, 2022, Plaintiffs surviving heirs filed their Complaint against eight public
26 entities, including CCSF, and DOES 1-20 alleging four causes of action: (1) Dangerous Condition of
27 Public Property (Wrongful Death); (2) Negligence (Wrongful Death); (3) Continuation of Decedent
28 Rolando Glorioso’s Causes of Action (Survival Action); and (4) Continuation of Decedent Susana
Page 7
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
Glorioso’s Causes of Action (Survival Action). (See generally, Compl.)
On March 27, 2023, counsel for CCSF initiated the meet and confer process with Plaintiffs’
counsel regarding the pleading deficiencies identified in Plaintiffs’ Complaint as to CCSF, as required
under Code of Civil Procedure section 430.41. (Declaration of Kevin J. Holl (“Holl Decl.”), 94.) After
several attempts to engage Plaintiffs’ counsel, Plaintiffs’ counsel finally provided a substantive response
on April 27, 2023. (d., 495-10.) Unfortunately, there was no resolution reached regarding the
sufficiency of the Complaint as to CCSF, necessitating this demurrer. (/d., 11.)
lil. ARGUMENT
A. Standard Of Law On Demurrer.
10 A demurrer is an objection to a pleading, the grounds of which are apparent from either the face
11 of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc. § 430.30,
12 subd. (a); see also, Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [a demurrer is used to test the legal
13 sufficiency of other pleadings]; Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66
14 Cal.App.4th 672, 677 [issue presented by demurrer is whether complaint states a cause of action as a
15 matter of law].) The face of a complaint includes matters and evidentiary facts shown in exhibits
16 attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)
17 Pursuant to Code of Civil Procedure section 430.10: “The party against whom a complaint or
18 cross complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the
19 pleadings on any one or more of the following grounds: . . . (e) The pleading does not state facts
20 sufficient to constitute a cause of action and/or (f) The pleading is uncertain. As used in this
21 subdivision, ‘uncertain’ includes ambiguous and unintelligible. Mere ‘recitals, references to, or
22 allegations of material facts, which are left to surmise are subject to special Demurrer for uncertainty. a
23 (Ankeny v. Lockheed Missiles & Space Co. (1978) 88 Cal.App.3d 531, 537.) A demurrer can be
24 utilized where the complaint itself is incomplete or discloses some defense or bar to recovery.
25 (Guardian North Bay, Inc. v. Sup. Ct. (2001) 94 Cal.App.4th 963, 971-972.)
26 The Court treats the “demurrer as admitting all material facts properly pleaded, but not
27 contentions, deductions, or conclusions of fact or law” and “give[s] the complaint a reasonable
28 interpretation, reading it as a whole and its parts in their context.” (Blank, 39 Cal.3d at 318.) The court
Page 8
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
should resolve any doubts as to whether a cause of action is pled adequately against the pleader, for it is
presumed that the pleader stated its case as favorably as possible. (Richmond Redevelopment Agency v.
W. Title Guar. Co. (1975) 48 Cal.App.3d 343, 349.)
B The Demurrer As To Plaintiffs’ First Cause Of Action Should Be Sustained.
1 Plaintiffs Fail To State Facts Sufficient To Constitute A Cause Of Action For
Dangerous Condition Of Public Property (Wrongful Death) As To CCSF.
Government Code section 835 provides that “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,
10 that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was
11 incurred” and that either the dangerous condition was created by (a) “a negligent or wrongful act or
12 omission of an employee of the public entity within the scope of his employment” or (b) that the public
13 entity had actual or constructive notice of the dangerous condition such that the public entity had
14 sufficient time to take measures to protect against the dangerous condition. (Gov. Code § 835.) For
15 purposes of Government Code section 835, the “property of a public entity” is defined as “real or
16 personal property owned or controlled by the public entity.” (Gov. Code § 830, subd. (c).) Hence, a
17 public entity may not be held liable under Government Code section 835 for a dangerous condition of
18 property that it does not own or control. (See e.g., Goddard v. Dept. of Fish & Wildlife (2015) 243
19 Cal.App.4th 350, 359.)
20 The crux of Plaintiffs’ Complaint is that the eight public entities and DOES 1-20 are liable for
21 the dangerous condition at the Underpass (defined by Plaintiffs as the “below-grade underpass of
22 Hillcrest Boulevard below at-grade rail lines that run roughly parallel to and between Aviador Avenue
23 and Hemlock Avenue”) and the Public Property (defined by Plaintiffs as the Underpass and the
24 “appurtenant street, rail, and drainage facilities and improvements, and adjacent and surrounding areas”)
25 which led to, or failed to prevent, the flood that occurred during a heavy rainstorm where Decedents
26 drowned. (Compl., ff] 27-37.) However, Plaintiffs’ claims rely on the erroneous premise that CCSF
27 owned or controlled the Underpass and/or Public Property at the time of the subject incident.
28 As Plaintiffs will be forced to concede, the Underpass and Public Property where Decedents
Page 9
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
drowned, as described in Plaintiffs’ Complaint, are located solely within the limits of the City of
Millbrae. (See Sts. & Hy. Code § 989, subd. (a)(2) [“AIl right, title, and interest of a county in and to
any county highway included within territory heretofore incorporated as a city or annexed to a city is
hereby determined to have vested in the city as a city street.”].) Indeed, the attached documents to the
Complaint (which include the Declaration of Plaintiff Regina Glorioso-Emerson, the Declaration of
Plaintiff Christian Gabriel Villacorte Cunanan, and the official Certificates of Death of each Decedent)
confirm that the incident occurred in the City of Millbrae in San Mateo County and not within the
jurisdictional boundaries or control of CCSF. (See Compl.) Without ownership or control of the
property upon which the incident occurred, CCSF cannot be held liable for a dangerous condition under
10 Government Code sections 830 and 835.
11 2 Plaintiffs Fail To Plead Their Claim Of A Dangerous Condition Of Public
Property With Specificity, Rendering It Uncertain And Ambiguous.
12
13 In addition to the foregoing, to state a cause of action against a public entity based on
14 Government Code section 835, every fact material to the existence of its statutory liability must be
15 pleaded with particularity. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795;
16 Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439 [limited and statutory nature of
17 government liability mandates that claims against public entities be specifically pleaded]; Mittenhuber v.
18 City of Redondo Beach (1983) 142 Cal.App.3d 1, 5 [claim alleging a dangerous condition may not rely
19 on generalized allegations].) Here, the First Cause of Action is not pled with any specificity or
20 particularity, but rather relies upon conclusory allegations made against numerous defendants without
21 distinction. It is uncertain and ambiguous as to how or why CCSF is an appropriate defendant in this
22 lawsuit in the current Complaint.
23 a. Ownership And Control.
24 Because the Underpass and Public Property described by Plaintiffs in the Complaint are located
25 within the borders ofthe City of Millbrae, Plaintiffs make several conclusory allegations regarding the
26 ownership and control of the Underpass and Public Property to cast a wide net against multiple
27 individuals and entities. But none of those allegations specifically identifies CCSF or segregates CCSF
28 from the other seven public entities and the 20 DOE Defendants. For instance, Plaintiffs allege in the
Page 10
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
1 First Cause of Action:
e Each of the Defendants “substantially participated in the ownership, design, construction,
control, operation, maintenance, oversight, supervision, and repair” of the Underpass and
Public Property. (Compl., §27.)
“TA]t pertinent times each of the Defendants had ongoing and continuous ownership
and/or control over, without limitation the Public Property. Each of the Defendants
treated the Public Property as if it were its property and had the power to prevent, fix, or
guard against the dangerous condition ofthe Public Property alleged herein.” (Compl.,
433.)
10
Nowhere in the Complaint do Plaintiffs allege that CCSF specifically owned and controlled the
11
Underpass. Nor are there any allegations as to what part of the Underpass was specifically designed,
12
constructed, operated, managed, maintained, overseen, supervised, or repaired by CCSF. Moreover,
13
Plaintiffs have defined “Public Property” to include the Underpass as well as the “appurtenant street,
14
rail, and drainage facilities and improvements, and adjacent and surrounding areas” (Compl., §27), but
15
make no effort to specify in the Complaint whether CCSF owned and controlled the appurtenant street,
16
or the rail, or the drainage facilities and improvements, or the adjacent and surrounding areas, or some
17
combination of those. Further, the First Cause of Action alleges that all eight public entities and DOES
18
1-20 at “pertinent times” owned and/or controlled the Public Property, but the term “pertinent times” is
19
itself vague and ambiguous. Given that the location of Decedents’ deaths occurred within the
20
boundaries of another city’s jurisdiction in another county, it is especially critical that Plaintiffs
21
specifically plead how CCSF — separate and apart from the other seven public entities or 20 DOE
22
Defendants — is liable. The Complaint does none of this.
23
b Existence Of A Dangerous Condition At The Time Of Injury.
24
Plaintiffs’ allegations regarding the dangerous condition that existed at the Underpass and Public
25
Property in the First Cause of Action are also nonspecific and conclusory:
26
e “During certain storm events the Public Property may cause or permit water to flow into
27
the Underpass at a greater rate than the pumps and other drainage facilities and
28
improvements of the Public Property are capable of evacuating water and result in
Page 11
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
flooding within the Underpass.” (Compl., §28.)
e “The Public Property was in a dangerous condition at the time of the incident alleged
herein. The condition of the Public Property put the Underpass at risk of abrupt and life-
threatening flooding.” (Compl., 34.)
Plaintiffs’ allegations as to the “dangerous condition” of the Underpass and Public Property are
not only conclusory, they are uncertain and ambiguous as to CCSF because the allegations do not
specify the exact nature of the dangerous condition that purportedly caused or contributed to Decedents >
deaths. For example, the Complaint, as currently pled, is unclear as to whether Plaintiffs contend that
the design of the Underpass was dangerous, or whether the street was improperly maintained or
10 repaired, or whether the drainage systems in the Underpass were inadequately designed or improperly
11 maintained. (See e.g., Brenner, supra, 112 Cal.App.4th at p. 439 [lawsuit alleging a dangerous
12 condition against a public entity may not rely on generalized allegations but must be specific in what
13 manner the condition alleged constituted a dangerous condition].) Coupled with the uncertainty and
14 ambiguity of the allegations regarding ownership and control of the Underpass and Public Property,
15 CCSF is unable to meaningfully evaluate the Complaint and answer the Complaint as currently pled.
16 c. Dangerous Condition Created By Negligent Or Wrongful Act Or Omission
Of An Employee Of The Public Entity Within The Scope Of Their
17 Employment.
18
In addition to uncertainty with respect to the nature of the dangerous condition, Plaintiffs do not
19
plead with any particularity or specificity as to which of the eight public entity defendants created the
20
dangerous condition. Rather, Plaintiffs simply conclude that the “dangerous condition of the Public
21
Property was created by [the] wrongful conduct of one or more employees of the Defendants” and
22
generically allege that “each of the Defendants negligently designed, managed, constructed, repaired,
23
inspected, and maintained the Underpass and failed to remedy deficient drainage of which it knew or
24
should have known, failed to install warning signs or otherwise warn of the potential for the Underpass
25
to become flooded with water, failed to close the Underpass to vehicular traffic when it flooded with
26
water on December 23, 2021, and failed to properly supervise, educate, train, monitor, and test workers
27
including employees and independent contractors who were responsible for the Public Property and for
28
Page 12
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
doing the acts and tasks above.” (Compl., 35-36.)
Plaintiffs’ allegations are insufficient to meet the requirement that each and every statutory
element be pled sufficiently with detailed and specific facts. There are no specific allegations that any
CCSF employee acting within the scope of their employment created a specific dangerous condition,
and the currently pled allegations fail to distinguish whether it was CCSF (or one of the other seven
public entities or DOES 1-20) that “failed to remedy deficient drainage” or “failed to install warning
signs” or “failed to close the Underpass to vehicular traffic” or “failed to properly supervise, educate,
train, monitor, and test workers including employees and independent contractors who were responsible
for the Public Property.” The uncertainty of the existing Complaint makes it impossible for CCSF to
10 adequately defend itself against such overbroad blanket allegations or to file a meaningful Answer.
11 d Public Entity Had Actual Or Constructive Notice With Sufficient Time Prior
To The Injury To Have Taken Measures To Protect Against The Dangerous
12 Condition.
13
The Complaint is also uncertain and ambiguous as to how CCSF had actual or constructive
14
notice of the dangerous condition at a location that falls outside of its jurisdictional boundaries or
15
when/if CCSF received such notice. (Brigg v. State of California (1971) 14 Cal.App.3d 490, 494
16
[plaintiffs have the burden of alleging that the public entity had actual or constructive notice of the
17
specific dangerous condition and that such notice was received a sufficient time before the injury to
18
allow the public entity to take measures to protect plaintiffs]; State v. Superior Court for San Mateo
19
County (1968) 263 Cal.App.2d 396, 400 [“[t]here must be some evidence that the [City] had knowledge
20
of the particular dangerous condition in question”].)
21
Again, Plaintiffs rely only upon conclusory allegations that all eight defendants knew of the
22
unspecified dangerous conditions at the Underpass and Public Property and that each of them “had
23
notice of the dangerous condition for a long enough time to have protected against the dangerous
24
condition.” (Compl., 435.) However, there are no allegations whatsoever as to how CCSF had notice,
25
what prior events would have constituted notice to CCSF, the nature of those prior events, and when
26
those prior events occurred. Plaintiffs provide no definition as to what time period constitutes “a long
27
enough time” for CCSF to have remedied the unspecified dangerous condition. Such vague and
28
Page 13
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
conclusory allegations do not meet the heightened pleading standard required to allege liability for a
dangerous condition against a public entity. (Lopez, supra, 40 Cal.3d at p. 795; Brenner, supra, 113
Cal.App.4th at p. 439; Mittenhuber, supra, 142 Cal.App.3d at p. 5.)
C. The Demurrer As To Plaintiffs’ Second Cause Of Action Should Be Sustained.
1 Plaintiffs Fail To State Facts Sufficient To Constitute A Cause Of Action For
Negligence (Wrongful Death) Because CCSF Cannot Be Held Directly Liable
For Common Law Claims Such As Negligence.
It is well-settled that public entities like CCSF cannot be held liable for general negligence
claims and that Government Code section 815 establishes that public entity tort liability is exclusively
statutory. (Govt. Code § 815; Teter v. City of Newport Beach (2003) 30 Cal.4th 446, 551 [legislative
10
intent of the Government Claims Act is “not to expand the rights of plaintiffs in suits against
11
governmental entities, but to confine potential governmental liability to rigidly delineated
12
circumstances” (citation omitted)]; Eastburn v. Regional Fire Protection Auth. (2003) 31 Cal.4th 1175,
13
1183 [public entity cannot be directly liable for negligence in the absence of a statute expressly
14
imposing such liability and a demurrer will successfully defeat a cause of action that generally alleges
15
negligence or direct governmental negligence].) Plaintiffs have failed to allege any statute imposing
16
public entity liability for negligence because none exists, and thus Plaintiffs’ claim of negligence fails as
17
a matter of law. (See e.g., Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298,
18
302.)
19
In addition, Plaintiffs’ Second Cause of Action for Negligence is apparently based on the alleged
20
dangerous condition of the Underpass and the Public Property. (Compl., {§41-46.) But, the California
21
Supreme Court has clarified that claims for a dangerous condition of public property must be evaluated
22
“under the provisions of Government Code section 835 alone.” (Zelig v. County of Los Angeles (2002)
23
27 Cal.4th 1112, 1132 [county not liable under principles of negligence pleaded in a separate cause of
24
action from Government Code section 835]; accord Brown v. Poway Unified School Dist. (1993) 4
25
Cal.4th 820, 829 [“section 835 sets out the exclusive conditions under which a public entity is liable for
26
injuries caused by a dangerous condition of public property”].) Consequently, CCSF cannot be held
27
directly liable to Plaintiffs on a negligence claim. (Zelig, 27 Cal.4th at p. 1127.)
28
Page 14
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
2 To The Extent Plaintiffs Are Alleging Negligence Against CCSF Based On A
Theory Of Vicarious Liability, The Second Cause Of Action Is Uncertain
And Ambiguous.
In the event that the existing allegations could be broadly construed as Plaintiffs’ attempt to
plead a statutory negligence claim under Government Code sections 815.2 and 815.4 against CCSF
based on vicarious liability for the alleged misconduct of its employees (see Compl., 15-16), the
Second Cause of Action is uncertain and ambiguous as to how or why CCSF may be liable. (Brenner,
supra, 112 Cal.App.4th at 439 [limited and statutory nature of governmental liability mandates that
claims against public entities be specifically pleaded].)
Upon a closer review of the Complaint, Plaintiffs do not specifically identify whether employees
10
or agents of CCSF — as opposed to the employees or agents of the other seven public entities named in
11
the Complaint to date — were responsible for any negligent conduct that was the proximate cause of
12
Plaintiffs’ injuries; do not allege the specific negligent conduct that CCSF employees or agents engaged
13
in; and do not even allege the specific duty or duties that CCSF employees or agents owed to Plaintiffs
14
at the time ofthe incident. Indeed, the Public Property referred to the Complaint consists of not just the
15
Underpass, but also the “appurtenant street, rail, and drainage facilities and improvements, and adjacent
16
and surrounding areas,” yet there are no allegations specifying whether any CCSF’s employees engaged
17
in negligent conduct regarding the construction and/or design and/or maintenance of the Underpass; or
18
whether CCSF’s employees were negligent in connection with the maintenance, operation, and/or repair
19
of the “appurtenant street;” or whether it was the maintenance, design, repair, and/or operation (or some
20
combination thereof) of the “rail” or “drainage facilities and improvements” or the undefined “adjacent
21
and surrounding areas” where CCSF’s employees were purportedly negligent. It is unclear whether
22
Plaintiffs are alleging that CCSF’s employees were negligent in performing any duties owed to Plaintiffs|
23
to provide any warning about the risk of flooding, or whether they failed in assessing or monitoring the
24
potential severity of any flooding in or around the incident area.
25
The specificity of Plaintiffs’ Complaint as to how or why CCSF’s employees could be negligent
26
is of particular importance to CCSF’s ability to comprehensively evaluate the Complaint, to provide a
27
meaningful Answer to the Complaint, and to determine whether limited public resources may be
28
Page 15
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
conserved through early informal resolution. For instance, public entity liability for property defects is
not governed by the general vicarious liability provided in Government Code sections 815.2 and 815.4,
but instead by the specific provisions set forth in Government Code sections 830-835.4. (Van Kempen
v. Hayward Area Park Etc. Dist. (1972) 23 Cal.App.3d 822, 825.) Moreover, liability for the dangerous
conditions of public property resulting from the employees’ acts or omissions is controlled by the
special rules and limitations contained in Government Code sections 840-840.6. (/d.) In turn,
Government Code section 840 is explicit that except as provided in Article 3 “Liability of Public
Employees” (Government Code sections 840-840.6), a public employee is not liable for injury caused b
a condition of public property where such condition exists because of any act or omission of such
10 employee within the scope of his employment. Thus, without more specificity as to CCSF’s alleged
11 wrongful conduct — separate and apart from the other seven public entities and DOES 1-20 — CCSF is
12 unable to assess the viability of any negligence claim asserted against CCSF based on vicarious liability.
13 3. To The Extent Plaintiffs Are Alleging Negligence Against CCSF Based On A
Theory Of Negligent Hiring Or Supervision, Plaintiffs Have Failed To State
14 Facts Sufficient To Constitute A Cause Of Action.
15
In the Second Cause of Action, Plaintiffs also allege that “[e]Jach of the Defendants further
16
violated its duties to the Decedents and to the Plaintiffs by failing to hire, train, supervise, retain, test,
17
and terminate its employees and independent contractors in a reasonably safe manner with respect to the
18
Public Property.” (Compl., §45.) Not only does this overbroad and generic allegation fail to satisfy the
19
tule of heightened specificity pleading against a public entity (Lopez, supra, 40 Cal.3d at p. 795),
20
Plaintiffs’ allegations are insufficient to state a cause of action against CCSF.
21
The California Supreme Court clarified in C.A. v. William S. Hart Union High School Dist.
22
(2012) 53 Cal.4th 861 the circumstances in which a plaintiff may sue a public entity for negligent hiring,
23
retention, and supervision on the basis of vicarious liability. Although it held that plaintiff minor, who
24
was abused by a school guidance counselor, could pursue a negligence cause of action against the school]
25
district under a theory of vicarious liability based on allegations that the school district’s supervisory and]
26
administrative personnel knew or should have known of the guidance counselor’s harassing and abusive
27
propensities, the California Supreme Court limited the viability of such a cause of action to situations in
28
Page 16
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
which the supervisory or administrative personnel have a “special relationship” with the plaintiff. (/d. at
874-875, 877.) The California Supreme Court reasoned that this “special relationship” imposed
obligations beyond the general duty of ordinary care, such that “the duty of care owed by school
personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the
hands of third parties acting negligently or intentionally.” (/d. at 870.)
Plaintiffs have alleged no “special relationship” between Plaintiffs and CCSF in the Complaint,
and absent such a special relationship, Plaintiffs cannot maintain a negligence claim against CCSF based
on a theory of negligent hiring, retention, or supervision. (/d. at 877.)
D. The Demurrer As To Plaintiffs’ Third And Fourth Causes Of Action Should Be
Sustained.
10
11 1 The Survival Actions Are Derivative And/Or Duplicative Of The First And
Second Causes Of Action.
12
Plaintiffs’ Third and Fourth Causes of Action are titled “Survival Actions” based on the
13
continuation of Decedents’ claims that presumably encompass the First Cause of Action for dangerous
14
condition of public property and the Second Cause of Action for negligence. (Compl., {J 50-59.) These}
15
causes of action cannot withstand CCSF’s demurrer.
16
As a preliminary matter, the First and Second Causes of Action are legally deficient for the
17
reasons set forth above and, consequently, the Survival Actions, which are derivative and/or duplicative
18
of the First and Second Causes of Action, must too fail.
19
Further, while CCSF acknowledges that a cause of action that belonged to a decedent may be
20
brought and/or maintained by a successor-in-interest pursuant to Code ofCivil Procedure section 377.30
21
et seq., there is no separate cause of action for “survival.” Rather, a “survival action” is a legal principle
22
recognizing that a decedent’s cause of action (here, the dangerous condition of public property) can be
23
brought or maintained by another person following the decedent’s death. (See Quiroz v. Seventh Ave.
24
Center (2006) 140 Cal.App.4th 1256, 1264; Grant v. McAuliffe (1953) 41 Cal.2d 859, 864; Code Civ.
25
Proc. § 377.30.) As currently pled in Plaintiffs’ Complaint, the Survival Actions are duplicative to the
26
First and Second Causes of Action and add nothing to the Complaint. Claims that merely duplicate
27
other claims in a pleading are subject to demurrer. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 24; see
28
Page 17
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
also Palm Springs Villas II Homeowners Assn. Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [demurrer
is properly sustained without leave to amend as to a cause of action that adds nothing to a complaint by
way of fact or theory of recovery.)
E Unless Plaintiffs Are Able To Show That They Can Amend The Complaint To
Cure The Legal Defects Identified Herein, The Court Should Sustain The
Demurrer Without Leave To Amend.
In addition to determining whether the pleading is defective, the Court considers “whether there
is a reasonable possibility that the defect can be cured by amendment.” (Blank, supra, 39 Cal.3d at p.
318; see also, BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119
Cal.App.4th 848, 854 [court “must also consider whether the complaint is capable of being amended to
10
state a cause of action”].) “The burden of proving such reasonable possibility is squarely on the
11
plaintiff.” (Blank, 39 Cal.3d at 318; BFGC Architects Planners, 119 Cal.App.4th at 854 [The burden is
12
on plaintiffto show there is a ‘reasonable possibility’ it can do so.”].) In order to demonstrate a
13
reasonable possibility of curing the defect, the plaintiff must show how the complaint can be amended
14
and how the amendment will change the pleading’s legal effect. (McAllister v. Cnty. of Monterey (2007)
15
147 Cal.App.4th 253, 298.) “[L]eave to amend should be denied where the facts are not in dispute and
16
the nature of the claim is clear but no liability exists under substantive law.” (Lawrence v. Bank of
17
America (1985) 163 Cal.App.3d 431, 436; Schonfeldt v. State of Cal. (1998) 61 Cal.App.4th 1462, 1465
18
[if there is no liability as a matter of law, leave to amend should not be granted].)
19
It does not appear that Plaintiffs will be able to cure the pleading defects that are the subject of
20
this Demurrer, particularly because the location where Decedents drowned was not under the ownership
21
and/or control of CCSF at the time of the incident and Plaintiffs cannot bring a negligence claim against
22
CCSF under either theories of direct liability or vicarious liability. Accordingly, CCSF respectfully
23
requests that the Demurrer be sustained without leave to amend.
24
Iv. CONCLUSION
25
Based on the foregoing, CCSF respectfully requests that the Court grant the Demurrer as to each
26
and every cause of action set forth in the Complaint on the grounds that Plaintiffs have failed to state
27
facts sufficient to constitute a cause of action pursuant to Code ofCivil Procedure section 430.10,
28
Page 18
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
subdivision (e), and the allegations as pled are uncertain and ambiguous pursuant to Code of Civil
Procedure section 430.10, subdivision (f). Further, because Plaintiffs will be unable to carry their
burden of proving a reasonable probability that the legal defects identified by CCSF may be cured by
amendment, CCSF respectfully requests that the Demurrer be sustained without leave to amend.
Dated: May 12, 2023 GORDON-CREED, KELLEY,
HOLL, ANGEL & SUGERMAN, LLP
By /s/ Kevin J. Holl
10 Kevin J. Holl
Erin K. Muniga
11 Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 19
CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
Preview
Electronically Kevin J. Holl, SBN 124830 b Superior wt of Calif ty of San a1 Erin K. Muniga, SBN 317741 ON 5/12/2023 GORDON-CREED, KELLEY, By /s/ Ashlee Nelson Deputy Clerk HOLL, ANGEL & SUGERMAN, LLP 50 California Street, 34" Floor San Francisco, CA 94111 Tel: (415) 421-3100 Fax: (415) 421-3150 holl@gkhs.com; muniga@gkhs.com Exempt from filing fees per Gov’t Code § 6103 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 REGINA GLORIOSO-EMERSON; ESTATE Case No. 22-CIV-05181 12 OF ROLANDO GLORIOSO; CHRISTIAN CUNANAN; KATRYNE PIOQUINTO; JOHN 13 MATTHEW CUNANAN; and ESTATE OF Assigned for all purposes to Hon. Robert D. Foiles, 14 SUSANA GLORIOSO, Dept. 21 15 Plaintiffs, DEFENDANT CITY AND COUNTY OF SAN FRANCISCO’S MEMORANDUM OF POINTS 16 V. AND AUTHORITIES IN SUPPORT OF 17 DEMURRER TO PLAINTIFFS’ COMPLAINT CITY OF MILLBRAE; STATE OF 18 CALIFORNIA; CITY AND COUNTY OF [Filed concurrently with Notice of Demurrer; 19 SAN FRANCISCO; COUNTY OF SAN Demurrer; Declaration of Kevin J. Holl; and MATEO; CITY OF SAN BRUNO; SAN Proposed Order] 20 FRANCISCO AREA RAPID TRANSIT DISTRICT; SAN MATEO COUNTY DATE: July 28, 2023 21 TRANSIT DISTRICT; PENINSULA. TIME: 9:00 a.m. 22 CORRIDOR JOINT POWERS BOARD; and DEPT: 21, Courtroom 2J DOES 1-20, JUDGE: Honorable Robert D. Foiles 23 Defendants. 24 25 Complaint Filed: December 9, 2022 26 Trial Date: Unassigned 27 28 Page | CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TABLE OF CONTENTS INTRODUCTION IL STATEMENT OF FACTS Til. ARGUMENT A Standard Of Law On Demurrer. B The Demurrer As To Plaintiffs’ First Cause Of Action Should Be Sustained 1 Plaintiffs Fail To State Facts Sufficient To Constitute A Cause Of Action For Dangerous Condition Of Public Property (Wrongful Death) At To CCSF 10 Plaintiffs Fail To Plead Their Claim Of A Dangerous Condition Of Public Property With Specificity, Rendering It Uncertain And Ambiguous 10 11 a. Ownership And Control 10 12 13 b. Existence Of A Dangerous Condition At The Time Of Injury 11 14 Dangerous Condition Created By Negligent Or Wrongful Act Or Omission Of An Employee Of The Public Entity Within The Scope Of 15 Their Employment 12 16 Public Entity Had Actual Or Constructive Notice With Sufficient Time 17 Prior To The Injury To Have Taken Measures To Protect Against The 18 Dangerous Condition 13 19 The Demurrer As To Plaintiffs’ Second Cause Of Action Should Be Sustained 14 20 1 Plaintiffs Fail To State Facts Sufficient To Constitute A Cause Of Action For 21 Negligence (Wrongful Death) Because CCSF Cannot Be Held Directly Liable For Common Law Claims Such As Negligence 14 22 To The Extent Plaintiffs Are Alleging Negligence Against CCSF Based On A 23 Theory Of Vicarious Liability, The Second Cause Of Action Is Uncertain And 24 Ambiguous. 15 25 To The Extent Plaintiffs Are Alleging Negligence Against CCSF Based On A Theory Of Negligent Hiring Or Supervision, Plaintiffs Have Failed To State 26 Facts Sufficient To Constitute A Cause Of Action 16 27 The Demurrer As To Plaintiffs’ Third And Fourth Causes Of Action Should Be 28 Sustained. 17 Page 2 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER 1 The Survival Actions Are Derivative And/Or Duplicative Of The First And Second Causes Of Action 17 Unless Plaintiffs Are Able To Show That They Can Amend The Complaint To Cure The Legal Defects Identified Herein, The Court Should Sustain The Demurrer Without Leave To Amend. 18 IV. CONCLUSION 18 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TABLE OF AUTHORITIES CASES Ankeny v. Lockheed Missiles & Space Co. (1978) 88 Cal.App.3d 531 BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848 18 Blank v. Kirwan (1985) 39 Cal.3d 311 oo eecececeseeseseeseseseeseseeeseseessseesessesassessassesassesssassesesaesesassesesseseeasecseesesseneeess 8, 18 Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434 10, 12, 14, 15 10 Brigg v. State of California 11 (1971) 14 Cal.App.3d 490 13 12 Brown v. Poway Unified School Dist. 13 (1993) 4 Cal.4th 820 14 14 CA. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 16, 17 15 16 Eastburn v. Regional Fire Protection Auth. (2003) 31 Cal.4th 1175 14 17 18 Frantz v. Blackwell (1987) 189 Cal.App.3d 91 19 Goddard v. Dept. of Fish & Wildlife 20 (2015) 243 Cal.App.4th 350 21 Grant v. McAuliffe 22 (1953) 41 Cal.2d 859 . 17 23 Guardian North Bay, Inc. v. Sup. Ct. 24 (2001) 94 Cal.App.4th 963 25 Lawrence v. Bank of America (1985) 163 Cal.App.3d 431 18 26 27 Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780 10, 14, 16 28 Page 4 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER McAllister v. Cnty. of Monterey (2007) 147 Cal.App.4th 253 .... 18 Mechanical Contractors Assn. v. Greater Bay Area Assn (1998) 66 Cal.App.4th 672 Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1 10, 14 Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298 14 Palm Springs Villas Il Homeowners Assn. Inc. v. Parth (2016) 248 Cal. App.4th 268 17, 18 10 Quiroz v. Seventh Ave. Center 11 (2006) 140 Cal.App.4th 1256 17 12 Richmond Redevelopment Agency v. W. Title Guar. Co. (1975) 48 Cal.App.3d 343 13 Schonfeldt v. Cal. 14 (1998) 61 Cal.App.4th 1462 18 15 Shoemaker v. Myers 16 (1990) 52 Cal.3d 1 17 17 State v. Superior Court of San Mateo County 18 (1968) 263 Cal.App.2d 396 13 19 Teter v. City of Newport Beach 20 (2003) 30 Cal.4th 446. 14 21 Van Kempen v. Hayward Area Park Etc. Dist. (1972) 23 Cal.App.3d 822 16 22 23 Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 14 24 25 STATUTES 26 Code of Civil Procedure § 377.30. 17 27 Code of Civil Procedure § 430.10, subd. (e). 8, passim 28 Page 5 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER Code of Civil Procedure § 430.10, subd. (f) 8, passim Code of Civil Procedure § 430.30, subd. (a). Government Code § 815 14 Government Code § 815.2 .o.cccccsecsessseecseeesseeseesescesesesseseeeeeeeeseeeseseseseseeeeeenees 15,16 Government Code § 815.4 .o.cccccsecesessseecseseesseessssescesessseeeeseeeseeeesessseseseeeeeenees 15,16 Government Code § 830, subd. (c) Government Code §§ 830-835.4. 16 Government Code § 835 9, passim 10 Government Code §§ 840-840.6.......cccccesesseesesesesesesesesesesesesesesesesescsescseacsescseessescseacseacseeeseateeeeaceeas 16 11 12 Streets & Highways Code § 989, subd. (a)(2) 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 6 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER I INTRODUCTION Defendant City and County of San Francisco (hereafter, “CCSF”) of course recognizes the sad circumstances underlying the Complaint. While Plaintiffs (comprised of Decedents’ surviving heirs) may potentially have actionable claims against other individuals and/or entities, CCSF is not one of them. CCSF respectfully requests that the Court sustain CCSF’s Demurrer to the Complaint pursuant to} Code of Civil Procedure sections 430.10, subdivisions (e) and (f), on the following grounds: As to the First Cause of Action, CCSF has no ownership or control of the underpass located in the City of Millbrae and Plaintiffs have not pled any specific facts detailing how or why CCSF may be held liable 10 for any of the alleged injuries and damages described in Plaintiffs’ Complaint. As to the Second Cause 11 of Action, Plaintiffs seek to hold CCSF directly liable for negligence, but it is well-settled that common 12 law negligence claims cannot be brought against a public entity. Nor can Plaintiffs maintain a 13 negligence cause of action against CCSF under either theories of vicarious liability or negligent hiring, 14 supervision, and retention. Finally, because Plaintiffs’ Third and Fourth Causes of Action are 15 duplicative and derivative of the First and Second Causes of Action, they too must fail. 16 Il. STATEMENT OF FACTS 17 On or about December 23, 2021, at approximately 5:49 a.m. during a heavy rainstorm, 18 Decedents attempted to drive through a “below-grade underpass of Hillcrest Boulevard below at-grade 19 rail lines that run roughly parallel to and between Aviador Avenue and Hemlock Avenue” located in the 20 city of Millbrae (the “Underpass”) in their 2018 Nissan Frontier (“Pickup”). (Compl., §27, 29.) Due to 21 the heavy rain and storm occurring at that time, the Underpass filled with water which subsequently 22 rendered Decedents’ Pickup non-operational. (Compl., 30.) Decedents attempted to extricate 23 themselves from the Pickup with assistance from bystanders, but they were unable to do so and 24 ultimately drowned in their submerged Pickup. (Compl., {ff 30-31.) 25 On December 9, 2022, Plaintiffs surviving heirs filed their Complaint against eight public 26 entities, including CCSF, and DOES 1-20 alleging four causes of action: (1) Dangerous Condition of 27 Public Property (Wrongful Death); (2) Negligence (Wrongful Death); (3) Continuation of Decedent 28 Rolando Glorioso’s Causes of Action (Survival Action); and (4) Continuation of Decedent Susana Page 7 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER Glorioso’s Causes of Action (Survival Action). (See generally, Compl.) On March 27, 2023, counsel for CCSF initiated the meet and confer process with Plaintiffs’ counsel regarding the pleading deficiencies identified in Plaintiffs’ Complaint as to CCSF, as required under Code of Civil Procedure section 430.41. (Declaration of Kevin J. Holl (“Holl Decl.”), 94.) After several attempts to engage Plaintiffs’ counsel, Plaintiffs’ counsel finally provided a substantive response on April 27, 2023. (d., 495-10.) Unfortunately, there was no resolution reached regarding the sufficiency of the Complaint as to CCSF, necessitating this demurrer. (/d., 11.) lil. ARGUMENT A. Standard Of Law On Demurrer. 10 A demurrer is an objection to a pleading, the grounds of which are apparent from either the face 11 of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc. § 430.30, 12 subd. (a); see also, Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [a demurrer is used to test the legal 13 sufficiency of other pleadings]; Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 14 Cal.App.4th 672, 677 [issue presented by demurrer is whether complaint states a cause of action as a 15 matter of law].) The face of a complaint includes matters and evidentiary facts shown in exhibits 16 attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) 17 Pursuant to Code of Civil Procedure section 430.10: “The party against whom a complaint or 18 cross complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the 19 pleadings on any one or more of the following grounds: . . . (e) The pleading does not state facts 20 sufficient to constitute a cause of action and/or (f) The pleading is uncertain. As used in this 21 subdivision, ‘uncertain’ includes ambiguous and unintelligible. Mere ‘recitals, references to, or 22 allegations of material facts, which are left to surmise are subject to special Demurrer for uncertainty. a 23 (Ankeny v. Lockheed Missiles & Space Co. (1978) 88 Cal.App.3d 531, 537.) A demurrer can be 24 utilized where the complaint itself is incomplete or discloses some defense or bar to recovery. 25 (Guardian North Bay, Inc. v. Sup. Ct. (2001) 94 Cal.App.4th 963, 971-972.) 26 The Court treats the “demurrer as admitting all material facts properly pleaded, but not 27 contentions, deductions, or conclusions of fact or law” and “give[s] the complaint a reasonable 28 interpretation, reading it as a whole and its parts in their context.” (Blank, 39 Cal.3d at 318.) The court Page 8 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER should resolve any doubts as to whether a cause of action is pled adequately against the pleader, for it is presumed that the pleader stated its case as favorably as possible. (Richmond Redevelopment Agency v. W. Title Guar. Co. (1975) 48 Cal.App.3d 343, 349.) B The Demurrer As To Plaintiffs’ First Cause Of Action Should Be Sustained. 1 Plaintiffs Fail To State Facts Sufficient To Constitute A Cause Of Action For Dangerous Condition Of Public Property (Wrongful Death) As To CCSF. Government Code section 835 provides that “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, 10 that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was 11 incurred” and that either the dangerous condition was created by (a) “a negligent or wrongful act or 12 omission of an employee of the public entity within the scope of his employment” or (b) that the public 13 entity had actual or constructive notice of the dangerous condition such that the public entity had 14 sufficient time to take measures to protect against the dangerous condition. (Gov. Code § 835.) For 15 purposes of Government Code section 835, the “property of a public entity” is defined as “real or 16 personal property owned or controlled by the public entity.” (Gov. Code § 830, subd. (c).) Hence, a 17 public entity may not be held liable under Government Code section 835 for a dangerous condition of 18 property that it does not own or control. (See e.g., Goddard v. Dept. of Fish & Wildlife (2015) 243 19 Cal.App.4th 350, 359.) 20 The crux of Plaintiffs’ Complaint is that the eight public entities and DOES 1-20 are liable for 21 the dangerous condition at the Underpass (defined by Plaintiffs as the “below-grade underpass of 22 Hillcrest Boulevard below at-grade rail lines that run roughly parallel to and between Aviador Avenue 23 and Hemlock Avenue”) and the Public Property (defined by Plaintiffs as the Underpass and the 24 “appurtenant street, rail, and drainage facilities and improvements, and adjacent and surrounding areas”) 25 which led to, or failed to prevent, the flood that occurred during a heavy rainstorm where Decedents 26 drowned. (Compl., ff] 27-37.) However, Plaintiffs’ claims rely on the erroneous premise that CCSF 27 owned or controlled the Underpass and/or Public Property at the time of the subject incident. 28 As Plaintiffs will be forced to concede, the Underpass and Public Property where Decedents Page 9 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER drowned, as described in Plaintiffs’ Complaint, are located solely within the limits of the City of Millbrae. (See Sts. & Hy. Code § 989, subd. (a)(2) [“AIl right, title, and interest of a county in and to any county highway included within territory heretofore incorporated as a city or annexed to a city is hereby determined to have vested in the city as a city street.”].) Indeed, the attached documents to the Complaint (which include the Declaration of Plaintiff Regina Glorioso-Emerson, the Declaration of Plaintiff Christian Gabriel Villacorte Cunanan, and the official Certificates of Death of each Decedent) confirm that the incident occurred in the City of Millbrae in San Mateo County and not within the jurisdictional boundaries or control of CCSF. (See Compl.) Without ownership or control of the property upon which the incident occurred, CCSF cannot be held liable for a dangerous condition under 10 Government Code sections 830 and 835. 11 2 Plaintiffs Fail To Plead Their Claim Of A Dangerous Condition Of Public Property With Specificity, Rendering It Uncertain And Ambiguous. 12 13 In addition to the foregoing, to state a cause of action against a public entity based on 14 Government Code section 835, every fact material to the existence of its statutory liability must be 15 pleaded with particularity. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795; 16 Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439 [limited and statutory nature of 17 government liability mandates that claims against public entities be specifically pleaded]; Mittenhuber v. 18 City of Redondo Beach (1983) 142 Cal.App.3d 1, 5 [claim alleging a dangerous condition may not rely 19 on generalized allegations].) Here, the First Cause of Action is not pled with any specificity or 20 particularity, but rather relies upon conclusory allegations made against numerous defendants without 21 distinction. It is uncertain and ambiguous as to how or why CCSF is an appropriate defendant in this 22 lawsuit in the current Complaint. 23 a. Ownership And Control. 24 Because the Underpass and Public Property described by Plaintiffs in the Complaint are located 25 within the borders ofthe City of Millbrae, Plaintiffs make several conclusory allegations regarding the 26 ownership and control of the Underpass and Public Property to cast a wide net against multiple 27 individuals and entities. But none of those allegations specifically identifies CCSF or segregates CCSF 28 from the other seven public entities and the 20 DOE Defendants. For instance, Plaintiffs allege in the Page 10 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER 1 First Cause of Action: e Each of the Defendants “substantially participated in the ownership, design, construction, control, operation, maintenance, oversight, supervision, and repair” of the Underpass and Public Property. (Compl., §27.) “TA]t pertinent times each of the Defendants had ongoing and continuous ownership and/or control over, without limitation the Public Property. Each of the Defendants treated the Public Property as if it were its property and had the power to prevent, fix, or guard against the dangerous condition ofthe Public Property alleged herein.” (Compl., 433.) 10 Nowhere in the Complaint do Plaintiffs allege that CCSF specifically owned and controlled the 11 Underpass. Nor are there any allegations as to what part of the Underpass was specifically designed, 12 constructed, operated, managed, maintained, overseen, supervised, or repaired by CCSF. Moreover, 13 Plaintiffs have defined “Public Property” to include the Underpass as well as the “appurtenant street, 14 rail, and drainage facilities and improvements, and adjacent and surrounding areas” (Compl., §27), but 15 make no effort to specify in the Complaint whether CCSF owned and controlled the appurtenant street, 16 or the rail, or the drainage facilities and improvements, or the adjacent and surrounding areas, or some 17 combination of those. Further, the First Cause of Action alleges that all eight public entities and DOES 18 1-20 at “pertinent times” owned and/or controlled the Public Property, but the term “pertinent times” is 19 itself vague and ambiguous. Given that the location of Decedents’ deaths occurred within the 20 boundaries of another city’s jurisdiction in another county, it is especially critical that Plaintiffs 21 specifically plead how CCSF — separate and apart from the other seven public entities or 20 DOE 22 Defendants — is liable. The Complaint does none of this. 23 b Existence Of A Dangerous Condition At The Time Of Injury. 24 Plaintiffs’ allegations regarding the dangerous condition that existed at the Underpass and Public 25 Property in the First Cause of Action are also nonspecific and conclusory: 26 e “During certain storm events the Public Property may cause or permit water to flow into 27 the Underpass at a greater rate than the pumps and other drainage facilities and 28 improvements of the Public Property are capable of evacuating water and result in Page 11 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER flooding within the Underpass.” (Compl., §28.) e “The Public Property was in a dangerous condition at the time of the incident alleged herein. The condition of the Public Property put the Underpass at risk of abrupt and life- threatening flooding.” (Compl., 34.) Plaintiffs’ allegations as to the “dangerous condition” of the Underpass and Public Property are not only conclusory, they are uncertain and ambiguous as to CCSF because the allegations do not specify the exact nature of the dangerous condition that purportedly caused or contributed to Decedents > deaths. For example, the Complaint, as currently pled, is unclear as to whether Plaintiffs contend that the design of the Underpass was dangerous, or whether the street was improperly maintained or 10 repaired, or whether the drainage systems in the Underpass were inadequately designed or improperly 11 maintained. (See e.g., Brenner, supra, 112 Cal.App.4th at p. 439 [lawsuit alleging a dangerous 12 condition against a public entity may not rely on generalized allegations but must be specific in what 13 manner the condition alleged constituted a dangerous condition].) Coupled with the uncertainty and 14 ambiguity of the allegations regarding ownership and control of the Underpass and Public Property, 15 CCSF is unable to meaningfully evaluate the Complaint and answer the Complaint as currently pled. 16 c. Dangerous Condition Created By Negligent Or Wrongful Act Or Omission Of An Employee Of The Public Entity Within The Scope Of Their 17 Employment. 18 In addition to uncertainty with respect to the nature of the dangerous condition, Plaintiffs do not 19 plead with any particularity or specificity as to which of the eight public entity defendants created the 20 dangerous condition. Rather, Plaintiffs simply conclude that the “dangerous condition of the Public 21 Property was created by [the] wrongful conduct of one or more employees of the Defendants” and 22 generically allege that “each of the Defendants negligently designed, managed, constructed, repaired, 23 inspected, and maintained the Underpass and failed to remedy deficient drainage of which it knew or 24 should have known, failed to install warning signs or otherwise warn of the potential for the Underpass 25 to become flooded with water, failed to close the Underpass to vehicular traffic when it flooded with 26 water on December 23, 2021, and failed to properly supervise, educate, train, monitor, and test workers 27 including employees and independent contractors who were responsible for the Public Property and for 28 Page 12 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER doing the acts and tasks above.” (Compl., 35-36.) Plaintiffs’ allegations are insufficient to meet the requirement that each and every statutory element be pled sufficiently with detailed and specific facts. There are no specific allegations that any CCSF employee acting within the scope of their employment created a specific dangerous condition, and the currently pled allegations fail to distinguish whether it was CCSF (or one of the other seven public entities or DOES 1-20) that “failed to remedy deficient drainage” or “failed to install warning signs” or “failed to close the Underpass to vehicular traffic” or “failed to properly supervise, educate, train, monitor, and test workers including employees and independent contractors who were responsible for the Public Property.” The uncertainty of the existing Complaint makes it impossible for CCSF to 10 adequately defend itself against such overbroad blanket allegations or to file a meaningful Answer. 11 d Public Entity Had Actual Or Constructive Notice With Sufficient Time Prior To The Injury To Have Taken Measures To Protect Against The Dangerous 12 Condition. 13 The Complaint is also uncertain and ambiguous as to how CCSF had actual or constructive 14 notice of the dangerous condition at a location that falls outside of its jurisdictional boundaries or 15 when/if CCSF received such notice. (Brigg v. State of California (1971) 14 Cal.App.3d 490, 494 16 [plaintiffs have the burden of alleging that the public entity had actual or constructive notice of the 17 specific dangerous condition and that such notice was received a sufficient time before the injury to 18 allow the public entity to take measures to protect plaintiffs]; State v. Superior Court for San Mateo 19 County (1968) 263 Cal.App.2d 396, 400 [“[t]here must be some evidence that the [City] had knowledge 20 of the particular dangerous condition in question”].) 21 Again, Plaintiffs rely only upon conclusory allegations that all eight defendants knew of the 22 unspecified dangerous conditions at the Underpass and Public Property and that each of them “had 23 notice of the dangerous condition for a long enough time to have protected against the dangerous 24 condition.” (Compl., 435.) However, there are no allegations whatsoever as to how CCSF had notice, 25 what prior events would have constituted notice to CCSF, the nature of those prior events, and when 26 those prior events occurred. Plaintiffs provide no definition as to what time period constitutes “a long 27 enough time” for CCSF to have remedied the unspecified dangerous condition. Such vague and 28 Page 13 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER conclusory allegations do not meet the heightened pleading standard required to allege liability for a dangerous condition against a public entity. (Lopez, supra, 40 Cal.3d at p. 795; Brenner, supra, 113 Cal.App.4th at p. 439; Mittenhuber, supra, 142 Cal.App.3d at p. 5.) C. The Demurrer As To Plaintiffs’ Second Cause Of Action Should Be Sustained. 1 Plaintiffs Fail To State Facts Sufficient To Constitute A Cause Of Action For Negligence (Wrongful Death) Because CCSF Cannot Be Held Directly Liable For Common Law Claims Such As Negligence. It is well-settled that public entities like CCSF cannot be held liable for general negligence claims and that Government Code section 815 establishes that public entity tort liability is exclusively statutory. (Govt. Code § 815; Teter v. City of Newport Beach (2003) 30 Cal.4th 446, 551 [legislative 10 intent of the Government Claims Act is “not to expand the rights of plaintiffs in suits against 11 governmental entities, but to confine potential governmental liability to rigidly delineated 12 circumstances” (citation omitted)]; Eastburn v. Regional Fire Protection Auth. (2003) 31 Cal.4th 1175, 13 1183 [public entity cannot be directly liable for negligence in the absence of a statute expressly 14 imposing such liability and a demurrer will successfully defeat a cause of action that generally alleges 15 negligence or direct governmental negligence].) Plaintiffs have failed to allege any statute imposing 16 public entity liability for negligence because none exists, and thus Plaintiffs’ claim of negligence fails as 17 a matter of law. (See e.g., Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 18 302.) 19 In addition, Plaintiffs’ Second Cause of Action for Negligence is apparently based on the alleged 20 dangerous condition of the Underpass and the Public Property. (Compl., {§41-46.) But, the California 21 Supreme Court has clarified that claims for a dangerous condition of public property must be evaluated 22 “under the provisions of Government Code section 835 alone.” (Zelig v. County of Los Angeles (2002) 23 27 Cal.4th 1112, 1132 [county not liable under principles of negligence pleaded in a separate cause of 24 action from Government Code section 835]; accord Brown v. Poway Unified School Dist. (1993) 4 25 Cal.4th 820, 829 [“section 835 sets out the exclusive conditions under which a public entity is liable for 26 injuries caused by a dangerous condition of public property”].) Consequently, CCSF cannot be held 27 directly liable to Plaintiffs on a negligence claim. (Zelig, 27 Cal.4th at p. 1127.) 28 Page 14 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER 2 To The Extent Plaintiffs Are Alleging Negligence Against CCSF Based On A Theory Of Vicarious Liability, The Second Cause Of Action Is Uncertain And Ambiguous. In the event that the existing allegations could be broadly construed as Plaintiffs’ attempt to plead a statutory negligence claim under Government Code sections 815.2 and 815.4 against CCSF based on vicarious liability for the alleged misconduct of its employees (see Compl., 15-16), the Second Cause of Action is uncertain and ambiguous as to how or why CCSF may be liable. (Brenner, supra, 112 Cal.App.4th at 439 [limited and statutory nature of governmental liability mandates that claims against public entities be specifically pleaded].) Upon a closer review of the Complaint, Plaintiffs do not specifically identify whether employees 10 or agents of CCSF — as opposed to the employees or agents of the other seven public entities named in 11 the Complaint to date — were responsible for any negligent conduct that was the proximate cause of 12 Plaintiffs’ injuries; do not allege the specific negligent conduct that CCSF employees or agents engaged 13 in; and do not even allege the specific duty or duties that CCSF employees or agents owed to Plaintiffs 14 at the time ofthe incident. Indeed, the Public Property referred to the Complaint consists of not just the 15 Underpass, but also the “appurtenant street, rail, and drainage facilities and improvements, and adjacent 16 and surrounding areas,” yet there are no allegations specifying whether any CCSF’s employees engaged 17 in negligent conduct regarding the construction and/or design and/or maintenance of the Underpass; or 18 whether CCSF’s employees were negligent in connection with the maintenance, operation, and/or repair 19 of the “appurtenant street;” or whether it was the maintenance, design, repair, and/or operation (or some 20 combination thereof) of the “rail” or “drainage facilities and improvements” or the undefined “adjacent 21 and surrounding areas” where CCSF’s employees were purportedly negligent. It is unclear whether 22 Plaintiffs are alleging that CCSF’s employees were negligent in performing any duties owed to Plaintiffs| 23 to provide any warning about the risk of flooding, or whether they failed in assessing or monitoring the 24 potential severity of any flooding in or around the incident area. 25 The specificity of Plaintiffs’ Complaint as to how or why CCSF’s employees could be negligent 26 is of particular importance to CCSF’s ability to comprehensively evaluate the Complaint, to provide a 27 meaningful Answer to the Complaint, and to determine whether limited public resources may be 28 Page 15 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER conserved through early informal resolution. For instance, public entity liability for property defects is not governed by the general vicarious liability provided in Government Code sections 815.2 and 815.4, but instead by the specific provisions set forth in Government Code sections 830-835.4. (Van Kempen v. Hayward Area Park Etc. Dist. (1972) 23 Cal.App.3d 822, 825.) Moreover, liability for the dangerous conditions of public property resulting from the employees’ acts or omissions is controlled by the special rules and limitations contained in Government Code sections 840-840.6. (/d.) In turn, Government Code section 840 is explicit that except as provided in Article 3 “Liability of Public Employees” (Government Code sections 840-840.6), a public employee is not liable for injury caused b a condition of public property where such condition exists because of any act or omission of such 10 employee within the scope of his employment. Thus, without more specificity as to CCSF’s alleged 11 wrongful conduct — separate and apart from the other seven public entities and DOES 1-20 — CCSF is 12 unable to assess the viability of any negligence claim asserted against CCSF based on vicarious liability. 13 3. To The Extent Plaintiffs Are Alleging Negligence Against CCSF Based On A Theory Of Negligent Hiring Or Supervision, Plaintiffs Have Failed To State 14 Facts Sufficient To Constitute A Cause Of Action. 15 In the Second Cause of Action, Plaintiffs also allege that “[e]Jach of the Defendants further 16 violated its duties to the Decedents and to the Plaintiffs by failing to hire, train, supervise, retain, test, 17 and terminate its employees and independent contractors in a reasonably safe manner with respect to the 18 Public Property.” (Compl., §45.) Not only does this overbroad and generic allegation fail to satisfy the 19 tule of heightened specificity pleading against a public entity (Lopez, supra, 40 Cal.3d at p. 795), 20 Plaintiffs’ allegations are insufficient to state a cause of action against CCSF. 21 The California Supreme Court clarified in C.A. v. William S. Hart Union High School Dist. 22 (2012) 53 Cal.4th 861 the circumstances in which a plaintiff may sue a public entity for negligent hiring, 23 retention, and supervision on the basis of vicarious liability. Although it held that plaintiff minor, who 24 was abused by a school guidance counselor, could pursue a negligence cause of action against the school] 25 district under a theory of vicarious liability based on allegations that the school district’s supervisory and] 26 administrative personnel knew or should have known of the guidance counselor’s harassing and abusive 27 propensities, the California Supreme Court limited the viability of such a cause of action to situations in 28 Page 16 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER which the supervisory or administrative personnel have a “special relationship” with the plaintiff. (/d. at 874-875, 877.) The California Supreme Court reasoned that this “special relationship” imposed obligations beyond the general duty of ordinary care, such that “the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.” (/d. at 870.) Plaintiffs have alleged no “special relationship” between Plaintiffs and CCSF in the Complaint, and absent such a special relationship, Plaintiffs cannot maintain a negligence claim against CCSF based on a theory of negligent hiring, retention, or supervision. (/d. at 877.) D. The Demurrer As To Plaintiffs’ Third And Fourth Causes Of Action Should Be Sustained. 10 11 1 The Survival Actions Are Derivative And/Or Duplicative Of The First And Second Causes Of Action. 12 Plaintiffs’ Third and Fourth Causes of Action are titled “Survival Actions” based on the 13 continuation of Decedents’ claims that presumably encompass the First Cause of Action for dangerous 14 condition of public property and the Second Cause of Action for negligence. (Compl., {J 50-59.) These} 15 causes of action cannot withstand CCSF’s demurrer. 16 As a preliminary matter, the First and Second Causes of Action are legally deficient for the 17 reasons set forth above and, consequently, the Survival Actions, which are derivative and/or duplicative 18 of the First and Second Causes of Action, must too fail. 19 Further, while CCSF acknowledges that a cause of action that belonged to a decedent may be 20 brought and/or maintained by a successor-in-interest pursuant to Code ofCivil Procedure section 377.30 21 et seq., there is no separate cause of action for “survival.” Rather, a “survival action” is a legal principle 22 recognizing that a decedent’s cause of action (here, the dangerous condition of public property) can be 23 brought or maintained by another person following the decedent’s death. (See Quiroz v. Seventh Ave. 24 Center (2006) 140 Cal.App.4th 1256, 1264; Grant v. McAuliffe (1953) 41 Cal.2d 859, 864; Code Civ. 25 Proc. § 377.30.) As currently pled in Plaintiffs’ Complaint, the Survival Actions are duplicative to the 26 First and Second Causes of Action and add nothing to the Complaint. Claims that merely duplicate 27 other claims in a pleading are subject to demurrer. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 24; see 28 Page 17 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER also Palm Springs Villas II Homeowners Assn. Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [demurrer is properly sustained without leave to amend as to a cause of action that adds nothing to a complaint by way of fact or theory of recovery.) E Unless Plaintiffs Are Able To Show That They Can Amend The Complaint To Cure The Legal Defects Identified Herein, The Court Should Sustain The Demurrer Without Leave To Amend. In addition to determining whether the pleading is defective, the Court considers “whether there is a reasonable possibility that the defect can be cured by amendment.” (Blank, supra, 39 Cal.3d at p. 318; see also, BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 854 [court “must also consider whether the complaint is capable of being amended to 10 state a cause of action”].) “The burden of proving such reasonable possibility is squarely on the 11 plaintiff.” (Blank, 39 Cal.3d at 318; BFGC Architects Planners, 119 Cal.App.4th at 854 [The burden is 12 on plaintiffto show there is a ‘reasonable possibility’ it can do so.”].) In order to demonstrate a 13 reasonable possibility of curing the defect, the plaintiff must show how the complaint can be amended 14 and how the amendment will change the pleading’s legal effect. (McAllister v. Cnty. of Monterey (2007) 15 147 Cal.App.4th 253, 298.) “[L]eave to amend should be denied where the facts are not in dispute and 16 the nature of the claim is clear but no liability exists under substantive law.” (Lawrence v. Bank of 17 America (1985) 163 Cal.App.3d 431, 436; Schonfeldt v. State of Cal. (1998) 61 Cal.App.4th 1462, 1465 18 [if there is no liability as a matter of law, leave to amend should not be granted].) 19 It does not appear that Plaintiffs will be able to cure the pleading defects that are the subject of 20 this Demurrer, particularly because the location where Decedents drowned was not under the ownership 21 and/or control of CCSF at the time of the incident and Plaintiffs cannot bring a negligence claim against 22 CCSF under either theories of direct liability or vicarious liability. Accordingly, CCSF respectfully 23 requests that the Demurrer be sustained without leave to amend. 24 Iv. CONCLUSION 25 Based on the foregoing, CCSF respectfully requests that the Court grant the Demurrer as to each 26 and every cause of action set forth in the Complaint on the grounds that Plaintiffs have failed to state 27 facts sufficient to constitute a cause of action pursuant to Code ofCivil Procedure section 430.10, 28 Page 18 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER subdivision (e), and the allegations as pled are uncertain and ambiguous pursuant to Code of Civil Procedure section 430.10, subdivision (f). Further, because Plaintiffs will be unable to carry their burden of proving a reasonable probability that the legal defects identified by CCSF may be cured by amendment, CCSF respectfully requests that the Demurrer be sustained without leave to amend. Dated: May 12, 2023 GORDON-CREED, KELLEY, HOLL, ANGEL & SUGERMAN, LLP By /s/ Kevin J. Holl 10 Kevin J. Holl Erin K. Muniga 11 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 19 CCSF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER