JEFFREY RUB, et al. v. STATE OF CALIFORNIA

JEFFREY RUB, et al. v. STATE OF CALIFORNIA

Motion: Demurrer to Complaint (x 2) Movant: Defendants State of California (acting by and through the California Department of Transportation and the California Highway Patrol Respondent: Plaintiffs Jefrey Rub, Jonathan Rub, and Amy Perry

PROCEDURAL AND FACTUAL BACKGROUND The Pleadings and Allegations Marshal Rub died on July 14, 2025, in his vehicle on Interstate 15 near the City of Baker. Prior to the death, the California Highway Patrol (CHP) and the Department of Transportation (CalTrans) closed the freeway after a tractor-trailer caught fire as a result of poor brake maintenance or unsafe driving. The closure left hundreds, including the Decedent, stranded for several hours in temperatures exceeding 100 degrees and with no shade, cooling, evacuation measures, or adequate emergency management. (Compl. at ¶¶ 11-16.)

Three hours after the truck caught fire, the Decedent was found unresponsive in his vehicle with the windows closed. CHP officers broke the passenger window and initiated CPR, but the Decedent did not survive. The extreme heat, prolonged immobilization, lack of access to water and cooling, and the failure to follow established heat-emergency, free-way closure, traffic management, and roadway incident protocols were contributing factors in the death. (Compl. at ¶¶ 11-16.) The Decedent’s children, Plaintiffs Jefrey Rub, Jonathan Rub, and Amy Perry, commenced suit over the death as against CalTrans and CHP in December 2025.

The Complaint includes (1- 6) various negligence and negligence per se claims against the fictitiously named truck driver and his employer in addition to claims against CalTrans and CHP for (7) dangerous condition of public property, (8) negligence of public employee, (9) failure to perform mandatory duties, (10) failure to summon medical care, (11) vicarious liability, (12) negligence per se, (13) survival action, and (14) wrongful death. The Demurrer CalTrans and CHP now demurrer to the claims against them on the grounds that the claims fail to state sufficient facts to constitute the causes of action asserted.

The demurrers are supported by a meet and confer declarations from attorneys Germaine C. Ng and Haiyang Allen Li. The demurrers are opposed by Plaintiffs, except they do not oppose the objections to the ninth cause of action for failure to perform mandatory duties, the tenth cause of action for failure to summon medical care, and the twelfth cause of action for negligence per se. (Opposition at p. 1, fn. 1.) CalTrans and CHP have replied. DISCUSSION Legal Standard A demurrer challenges defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable. (Blank v.

Kirwan (1985) 39 Cal.3d 311, 318.) The face of the complaint includes matters shown in attached exhibits and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) No other extrinsic evidence can be considered. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

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A demurrer predicated on a complaint’s failure to state facts sufficient to constitute a cause of action (Code of Civ. Proc. §430.10, subd. (e)) should be granted only when the facts alleged on the face of the complaint fail to state any valid claim entitled to the plaintiff or disclose a complete defense to relief. Even if a plaintiff is mistaken as to the nature of the case or the legal theory on which he/she could prevail, the complaint is good against a general demurrer if the essential facts allege some valid cause of action. (Gruenberg v.

Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.) When evaluating a demurrer, the Court gives the pleading a reasonable interpretation by reading it as a whole and all its parts in their context. (Blank, supra, 39 Cal.3d at 318.) The material facts that are properly pled and judicially noticed are assumed to be true for purposes of a demurrer. (Ibid.) Yet contentions, deductions or conclusion of fact or law are not assumed true. (Ibid.) “[T]he question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Concerned Citizens of Costa Mesa, Inc. v. 32nd Agricultural Assn. (1986) 42 Cal.3d 929, 936 (citations omitted).)

The complaint is also to be liberally construed. (Code of Civ. Proc. §452.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318.) On the other hand, “a trial court does not abuse its discretion by sustaining a general demurrer without leave to amend if it appears from the complaint that under applicable substantive law there is no reasonable possibility that an amendment could cure the complaint’s defect.” (Hacienda v.

City of San Marino (1986) 42 Cal.3d 481, 486.) Finally, under Code of Civil Procedure § 430.41, before filing a demurrer, the objecting party shall meet and confer with the opposing party in person, by video conference, or by telephone for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. A declaration must also be filed in connection with the demurrer that declares the means by which the parties met and conferred and that the parties did not reach an agreement or that the opposing party failed to respond to the meet and confer.

In this case, the declaration from attorney Ng, on behalf of CalTrans, merely indicates he attempted to contact his counterpart by phone once and never heard back. No meet and confer occurred and the efforts were insufficient. As a result, the Court could consider continuing the matter for further meet and confer efforts or taking the demurrer off calendar. (See Local Rule 560 [Court can take hearing off calendar if requisite meet and confer is found deficient].) As for the declaration from Li, on behalf of the CHP, it indicates counsel met and conferred by phone, but no resolution was reached.

While the declaration is short on details, it appears Li’s meet and confer efforts were sufficient. The Seventh Cause of Action for Dangerous Condition of Public Property An overview of the law “A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. ([Gov. Code] § 815.) [Government Code] Section 835 is the sole statutory basis for a claim imposing liability on a public entity based on the condition of public property. (Brown v.

Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) Under section 835, a public entity may be liable if it creates an injury-producing dangerous condition on its property or if it fails to remedy a dangerous condition despite having notice and sufficient time to protect against it.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.) “A dangerous condition of public property “means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably

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foreseeable that it will be used.” ([Gov. Code,] § 830, subd. (a).) The elements for that cause of action are: “(1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff's injuries; and (5) compensable damage sustained by the plaintiff.”” (Toeppe v.

City of San Diego (2017) 13 Cal.App.5th 921, 925- 26; CACI 1100.) To state a cause of action under the Government Claims Act based on a dangerous condition of public property, the complaint must show that the requirements of Section 835 are satisfied. Because the plaintiff is necessarily seeking to establish a statutory cause of action, general allegations are regarded as inadequate; the complaint should be sufficiently detailed and specific to support an inference that each statutory element of liability is satisfied. (Lopez v.

Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [“every fact material to the existence of its statutory liability must be pleaded with particularity”]; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439-440 [generalized allegations are insufficient].) The dangerous condition in this case Here, CalTrans argues the Complaint does not include any facts indicating what the alleged “physical” condition of the roadway was that was dangerous. The location of the condition is alleged (the northbound Interstate 15 approximately three miles north of Zzyx Road near the City of Baker) and the Complaint further indicates the condition resulted from the prolonged shutdown, i.e. the condition was the absence of any means of egress or evacuation that trapped motorists over a 15 mile stretch of highway in the desert heat in addition to the absence of shade, water, cooling, medical assistance or emergency relief for immobilized motorists. (Compl. at ¶¶ 145-146, 168, 179, and 224.)

In the demurrer, CalTrans ignores the absence of any means of egress and the effect the heat would have on the condition of the roadway. (See CalTrans Opening Brief at p. 3.) As a result, a particular dangerous condition is identified. Immunity under Government Code section 831 In the demurrer, the CHP cites to Government Code section 831, which provides that “[n]either a public entity nor a public employee is liable for an injury caused by the effect on the use of streets and highways of weather conditions as such.

Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such effect if it would not be reasonably apparent to, and would not be anticipated by, a person exercising due care. For the purpose of this section, the effect on the use of streets and highways of weather conditions includes the effect of fog, wind, rain, flood, ice or snow but does not include physical damage to or deterioration of streets and highways resulting from weather conditions.”

While the statute “may be unnecessary in view [the law] setting forth the conditions of liability for dangerous conditions of public property,” it was nonetheless included in the law revisions “to forestall unmeritorious litigation that might be brought in an effort to hold public entities responsible for injuries caused by weather.” (Tindall v. County of Nevada (2025) 112 Cal.App.5th 78, 85.) In Erfurt v. State of California (2025) 141 Cal.App.3d 837, a motorist crashed into a guard rail after being blinded by the rising sun as she reached the crest of a hill.

Following a jury verdict in favor of the plaintiff, the State appealed, raising section 831. The Court of Appeal rejected the defense on the grounds that the statute does not apply to the weather “effect[,] if it would not be reasonably apparent to, and would not be anticipated by, a person exercising due care” and there

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was evidence suggesting the blinding sun could not have been anticipated nor was reasonably apparent until the crest was reached. (Id. at 845.) Furthermore, the dangerous condition “was not merely the effect of blinding sunlight on a public highway, but the effect of blinding sunlight combined with improper channelization and the lack of devices to properly guide and warn a driver around an object [an abutment] in the middle of a freeway.” (Ibid.) Finally, the Erfurt court indicated Section 831 was intended to immunize against the “effect of weather conditions, known or unknown, predictable or unpredictable, which no amount of human care or foresight can fully protect against” and the sun occupies a predictable point in the sky relative to any given location, but the same predictability cannot apply to weather conditions mentioned in the statute. (Erfurt, supra, 141 Cal.App.3d at p. 846; see also Callahan v.

City and County of San Francisco (1967) 249 Cal.App.2d 696 [section 831 does not immunize a public entity where the “allegations of the complaint relat[ed] not only to a condition of fog, but also to the layout of the streets and especially to the appearance of a freeway where actually there was none, and to the lack of signs”].) In this case, the alleged dangerous condition was not merely the heat, just as the sun was not the sole cause of the incident in Erfurt. The dangerous conditions in this case included the closure of the interstate, which left motorists trapped for hours in the heat, and the absence of egress or the ability to turn around or exit (like the defective street layout in Erfurt).

The conditions were further exacerbated given the absence of water, shade, cooling, and adequate emergency assistance. (Compl. at ¶¶ 145-146, 179, and 224.) While section 831 does provide for immunity based on the effect of the weather on the roadway, an exception exists where, as is the case here, the dangers would not be reasonably apparent. There are no facts alleged suggesting the Decedent should have known that there was a road closure and that the stretch of roadway lacked egress, water, shade, etc., such that the effect of the temperature combined with the condition of the roadway could be deadly to a motorist.

The purported lack of ownership The CHP also argues it did not own the Interstate and therefore it cannot be liable. However, the CHP concedes it can be liable to the extent it controlled the Interstate, yet the CHP fails to explain why the alleged shut down of the freeway does not amount to the exertion of control over the property sufficient to impose dangerous condition of public property liability. Merely because CalTrans is supposed to have full control rights does not foreclose the possibility that the CHP exerted concurrent control under the circumstances of this case.

Immunity under Government Code section 850.4 Government Code section 850.4 provides that “[n]either a public entity, nor a public employee acting in the scope of his employment, is liable for any injury resulting from the condition of fire protection or firefighting equipment or facilities or, except as provided in Article 1 (commencing with Section 17000) of Chapter 1 of Division 9 of the Vehicle Code, for any injury caused in fighting fires”].) “[B]y relieving public entities and employees of liability “for any injury caused in fighting fires” under section 850.4, the Legislature intended immunity to apply to any claim based on death, personal injury, or property damage that results from an act or omission of a public entity or employee while responding to or combating an actual fire.” (Varshock v.

Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 643.) Caselaw “has broadly applied the immunity to various types of injuries that resulted from acts or omissions of firefighters while responding to or combating a fire. (See, e.g., State of California v. Superior Court (2001) 87 Cal.App.4th 1409 [death allegedly caused by negligent advice and inadequate warnings given by state to pilot attempting to drop fire retardant on brush

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fire]; Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 153 [destruction of building by alleged negligence of firefighters in handling fire]; City and County of San Francisco v. Superior Court (1984) 160 Cal.App.3d 837 [property damage caused by failure to arrive at fire timely]; Bettencourt v. State of California (1975) 51 Cal.App.3d 892 [loss of cattle that escaped through wire fence cut by firefighters to fight grass fire]; Heimberger v. City of Farfield (1975) 44 Cal.App.3d 711 [personal injury during attempted rescue of person trapped in burning building].)” (Varshock v.

Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 643.) In this case, the Complaint indicates the fire resulted in an “emergency” multi-hour closure of the freeway. (Compl. at ¶ 126 and 153.) Presumably the closure was necessary to actually fight the fire, but that is not clearly alleged. Instead, the Complaint more broadly suggests the closure was for “safety reasons,” suggesting Defendants could have closed the road merely because they did not want motorists harmed by encountering the fire.

While it is likely the closure served both purposes, the allegations are not developed enough to conclude that fact as a matter of law. The degree to which the closure was needed for either purpose is also not clear from the allegations. As a result, the immunity has not been shown to apply as a matter of law. James v. City of San Francisco (1856) 6 Cal. 528 CalTrans also references James v. City of San Francisco (1856) 6 Cal. 528, 529, which indicated the “obligation of the city to keep the streets in repair is necessarily suspended while they are undergoing repairs and alterations of a character which render them, for the time being, dangerous and impassable, and this applies as well to the sidewalks.”

However, the court in James noted the city in that case was “not charged with any misuser or non-user of its “legislative power,” neither does the opening or not opening, the improvement or non-improvement of streets, in any manner enter into the gravamen of the plaintiff's action” as the city was required by law to award the repair contract to the lowest bidding contractor who took away the responsibility. As a result, the James court indicated the contractor could be liable, but not the city. (James v.

City of San Francisco (1856) 6 Cal. 528, 528.) Unlike James, the current case does not involve roadway repairs or alterations. In fact, the case does not even involve the point of the closure itself or the activities occurring beyond the closure (whether that be fire suppression activities, roadway clean up, etc.) Instead, the action involves the stretch of roadway leading up to the closure, the blockage Defendants created coupled with the other conditions, etc. The misconduct alleged is also attributable to Defendants, as opposed to some contractor as was the case in James.

As a result, James does not support the claimed immunity in this case. The Immunity Defense under Government Code section 820.2 As for immunity under Government Code section 820.2, that provides “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code, § 820.2.) That is significant because section 820 provides that “[e]xcept as otherwise provided by statute (including Section 820.2 [related to immunity]), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” (Gov.

Code, § 820.) “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).) However, “[e]xcept as otherwise provided by

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statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Gov. Code, § 815.2, subd. (b).) Notably though, the immunity applies “only to ‘basic policy decisions,’” subsequent “ministerial actions in the implementation of that basic decision still must face case-by-case adjudication on the question of negligence.” (Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448, 461.) That is true even “even if they require “exercise of considerable judgmental skills.”” (Ciampi v.

City of Palo Alto (N.D. Cal. 2011) 790 F.Supp.2d 1077, 1107.) The distinction “might also be characterized as “between the ‘planning’ and ‘operational’ levels of decision-making....” (Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448, 461.) For instance, “while a public defender’s initial decision to represent a particular defendant may be a discretionary decision immunized by § 820.2, the decisions made and actions undertaken during the course of the representation are not immunized, even though “such legal representation entails difficult choices among complex alternatives and the exercise of professional skill.” ” [Citation] Similarly, while a police officer’s initial decision to investigate a car accident may constitute a discretionary decision immunized by § 820.2, the officer is not immunized from any negligence in conducting the investigation.” (Ciampi v.

City of Palo Alto (N.D. Cal. 2011) 790 F.Supp.2d 1077, 1107–1108. [officer’s decisions to follow up on 911 call might be discretionary, but the decisions made during the contact and the arrest are not immunized].) In this case, Plaintiffs expressly allege that following the fire “Defendants exercised their statutory authority to close the freeway and restrict traffic for safety reasons.” (Compl. at ¶ 162.) Nevertheless, Plaintiffs do not take issue with the decision to close the road itself per se, but the implementation or the operational choices surrounding that decisions, such as the failure to address the dangerous condition that resulted from the closure, the failure to ensure routes of egress, etc.

Just as an officer is not necessarily immune from any negligence in actually conducting an investigation even if the decision to investigate is protected, Defendants are not immune from the negligence in actually executing the closure and their failure to address the dangers even if the decision to close the road itself was protected. The Eighth Cause of Action for Negligence of Public Employee and the 11th Cause of Action for Vicarious Liability “Except as otherwise provided by statute (including Section 820.2 [related to immunity]), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” (Gov.

Code, § 820.) “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).) However, “[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Gov.

Code, § 815.2, subd. (b).) In this case, the causes of action are based upon the alleged negligence in the implementation of the traffic control, the freeway closures, incident management, and the public safety measures during the freeway emergency. (See, e.g., Compl. at ¶¶ 143 and 194.) In particular, Defendants’ employees purportedly failed to assess the condition and safety of the immobilized motorists during the extreme heat, failed to monitor or respond to medical risks, failed to perform welfare checks, failed to implement controlled releases, emergency access, or staged traffic relief, failed to communicate or coordinate operational safety measures, and failed to modify the closure as conditions deteriorated. (Compl. at ¶¶ 146 and 193-194.)

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In the demurrer, CalTrans argues the allegations are directed only at CHP officers, but the Complaint clearly indicates it was “CalTrans and CHP employees” that undertook the operational control of the traffic flow, freeway closure, and incident response. (Compl. at ¶ 144.) Although Plaintiffs were able to identify CHP officers by name, and not CalTrans employees, that level of detail is not necessarily required at the pleading stage. (Dino, Inc. v. Boreta Enterprises, Inc. (1964) 226 Cal.App.2d 336, 340 [“less particularity is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff”].)

CalTrans further argues that under Government Code section 840, “a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.” Yet, CalTrans further acknowledges that the theory underlying the eighth cause of action is not solely the dangerous condition, but Defendants’ failure to act. In particular, CalTrans (and the CHP) argue Plaintiffs are attempting to impose affirmative duties to provide aid even though there is generally no mandatory duty to come to the aid of another. (See Zelig v.

County of Los Angeles (2002) 27 Cal.4th 1112, 1128–1129 [“Police officers and other public security officers, like other persons, generally may not be held liable in damages for failing to take affirmative steps to come to the aid of, or prevent an injury to, another person”].) However, that rule generally applies to “[a] person who has not created [the] peril” (Ibid.), but in this case, as noted above, it is alleged that Defendants created the peril. As a result, the cause of action could be based upon, if nothing else, the employees’ negligence in failing to aid or fix the peril.

Plaintiffs suggest that Defendants could have merely removed the blockage to allow traffic to flow or could have provided some type of congestion relief (the implausibility of which is beyond the scope of the pleading). The claims could also be construed as an alternative to the dangerous condition theory, i.e., to the extent the conditions and circumstances alleged do not constitute a dangerous condition of public property, the death could still be attributable to employee negligence or failure to act.

As a result, and for the reasons outlined above, the demurrer is overruled. The Thirteenth and Fourteenth Causes of Action for Survival and Wrongful Death Finally, the demurrers to the survival and wrongful death claims merely notes the derivative nature of the claims; Defendants argue that since the other claims fail, so too do the thirteenth and fourteenth causes of action. However, since some of the claims are still viable, so too are the claims for survival and wrongful death.

RULING The Court rule as follows: (1) Dismisses, based on Plaintiffs’ concessions, the 9th cause of action for failure to perform mandatory duties, the 10th cause of action for failure to summon medical care, and the 12th cause of action for negligence per se. a. Plaintiffs do not oppose the demurrers as to these claims. (Oppositions at p. 1, fn. 1.) (2) Overrules the demurrer to the 7th cause of action for dangerous condition of public property. a. A dangerous condition is adequately alleged. b. Immunity under Government Code section 831 does not apply because the condition was not merely the effect of the heat on the use of the highway and under the

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circumstances that effect and dangerous condition were not reasonably apparent to oncoming motorists (or at least the face of the Complaint does not so reveal). c. The CHP and CalTrans allegedly exerted control over the roadway and control, as opposed to ownership, is enough. d. The allegations do not show on their face that the immunity under Government Code section 850.4 applies. The Complaint does not expressly allege that the road closure was to fight the fire, as opposed to oncoming motorist safety.

Even if that were not the case, it is not clear that the degree to which the closure was needed (both in geographic and temporal scope) falls within the immunity outlined in section 850.4, again at least based on the allegations. e. James v. City of San Francisco (1856) 6 Cal. 528 is distinguishable as the road closure was not for repairs or alterations and no contractor was involved in this case. f. The Complaint does not show that the immunity under section 820.2 applies because that immunity, while applying to policy decisions, does not apply to operational or implementation choices and Plaintiffs in this case take issue with the latter. (Ogborn v.

City of Lancaster (2002) 101 Cal.App.4th 448, 461 and Ciampi v. City of Palo Alto (N.D. Cal. 2011) 790 F.Supp.2d 1077, 1107.) (3) Overrules the demurrer to the 8th and 11th causes of action for negligence of public employee and vicarious liability. a. The claims could be seen as alternative theories to the extent the facts do not support a dangerous condition of public property, but nevertheless show the death is attributable to Defendants’ employees’ negligence. There is also an affirmative duty to act when one creates the underlying peril. (Zelig v.

County of Los Angeles (2002) 27 Cal.4th 1112, 1128–1129.) (4) Overrules the demurrer to the 13th and 14th Causes of Action for Survival and Wrongful Death.

Dated: August 28, 2026

____________________________ Judge Nicole Quintana Winter

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