Estate of David Jaimez v. City of Fontana, et al

TENTATIVE RULING(S) FOR September 2, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

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If you do not have Internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the department (S-37) at (909) 708-8707 or the Administrative Assistant (909) 708-8756, who prepared the ruling.

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UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE

RULING.

Estate of David Jaimez v. City of Fontana, et al

__________________________________________________________________________

TENTATIVE RULING(S):

Demurrer by Defendants State of California and California Highway Patrol

The State of California and California Highway Patrol (collectively, “Defendants”) demur

generally to Plaintiffs’ first cause of action for negligence—wrongful death. Defendants contend

Plaintiffs fail to allege: (1) a general duty of care owed by Defendants to Decedent; (2) a special

relationship giving rise to a duty; or (3) facts sufficient to avoid Government Code section 845

immunity for decisions concerning police protection services.

Plaintiffs oppose the demurrer. Moving Defendants replied.

For the reasons discussed below, the demurrer is OVERRULED.

REQUEST FOR JUDICIAL NOTICE

Defendants request judicial notice of: (1) the California Highway Patrol Investigation Report,

CHP File Number 202401196, CAD Incident Number 240912IN0930, dated September 12,

2024, concerning the incident at I-10 W/B E/O Cypress Avenue; and (2) dashboard camera

footage from Defendant Hitesh Kumar’s truck.

The request is DENIED.

A demurrer tests the sufficiency of the pleading and may consider only matters appearing on the

face of the complaint or matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39

Cal.3d 311, 318.) Although a court may take judicial notice of the existence of certain

documents, judicial notice does not permit the Court to accept as true disputed factual

assertions, opinions, interpretations, or evidentiary inferences contained in those materials.

(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)

The materials submitted by Defendants are being offered, in substance, to establish facts

concerning what occurred during the incident and the nature of the officers’ conduct. Those

matters are disputed and are not properly resolved on demurrer. The Court therefore declines to

consider the extrinsic evidence in determining the sufficiency of the first cause of action.

LEGAL STANDARD

A demurrer can be used only to challenge defects appearing on the face of the pleading under

attack, or from matters outside the pleading which are judicially noticeable. (Blank v. Kirwan

(1985) 39 Cal.3d 311, 318.)

The face of the complaint includes matters shown in exhibits attached to the complaint 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.)

For the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all

material facts properly pleaded, i.e., ultimate facts alleged, but not contentions, deductions, or

conclusions of fact or law. (Adelman v. Associated Int'l. Ins. Co. (2001) 90 Cal.App.4th 352,

359.)

Facts appearing in exhibits attached to the complaint will also be accepted as true and, if

contrary to the allegations in the pleading, will be given precedence. (Del E. Webb Corp. v.

Structural Materials Co. (1981) 123 Cal.App.3d. 593, 604.) The Plaintiff's ability to prove the

allegations is of no concern in ruling on a demurrer. (Committee on Children’s Television, Inc. v.

General Foods Corp. (1983) 35 Cal.3d. 197, 213-214.) The complaint will be construed liberally.

(Code Civ. Proc., § 452.)

A general demurrer challenges a complaint for failure to state a cause of action under Code of

Civil Procedure section 430.10, subdivision (e). It is granted only where the facts alleged on the

face of the complaint fail to state any valid claim entitling the plaintiff to relief against the

demurring defendant.

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.” (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486.)

ANALYSIS

1. Plaintiffs Have Alleged a Statutory Basis for Liability

Government Code section 815, subdivision (a), establishes the fundamental principle that public

entities in California are immune from liability except as otherwise provided by statute. This

section provides: “Except as otherwise provided by statute, a public entity is not liable for an

injury, whether such injury arises out of an act or omission of the public entity or a public

employee or any other person.”

The Government Claims Act abolished common law claims without statutory underpinning.

(Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1339.) There has to be a defined

independent statutory basis for imposing liability on defendants; otherwise, the cause of action is

fatally flawed. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal. 4th 1175, 1182,

1185.) There is no common law governmental tort liability in California . . . except as otherwise

provided by statute. (Cowing v. City of Torrance (1976) 60 Cal.App.3d 757, 761.)

Plaintiffs’ first cause of action expressly identifies Government Code section 815.2 as the

statutory basis for the claim against the State and CHP. The Complaint alleges that Defendants,

through their officers, agents, and employees, owed duties to Decedent, breached those duties

through negligent acts and omissions, and thereby caused his death. Paragraph 21 alleges a

duty to act with due care toward Decedent, while paragraph 23 identifies specific allegedly

negligent acts and omissions, including negligent tactics and handling of the situation, negligent

detention and use of force, failure to provide prompt medical care, negligent communication, and

failure properly to train and supervise personnel.

These allegations are sufficient to identify a statutory theory of liability at the pleading stage.

Whether Plaintiffs can ultimately establish employee liability and overcome applicable immunities

is a separate question.

Defendants’ contention that Plaintiffs have pleaded only an unsupported common-law tort

therefore does not provide a basis for sustaining the demurrer.

2. Plaintiffs Have Adequately Alleged Facts Supporting a Duty

Defendants contend Plaintiffs have failed to allege a duty of care. Defendants rely principally on

Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland) and subsequent cases concerning the

existence and scope of a duty in the law-enforcement context.

Rowland establishes a general presumption of duty, subject to policy-based exceptions

evaluated under a multi-factor balancing test. (Id. at pp. 112-113.) At the pleading stage,

however, the Court must accept the material factual allegations as true and determine whether

those allegations, if proven, could support the existence of a duty.

Here, Plaintiffs allege more than a failure by police officers to protect Decedent from a danger

that independently existed. Plaintiffs allege that officers confronted Decedent while he was on

foot near an active freeway, shined lights on him, engaged in improper apprehension techniques

and maneuvers, and thereby caused his vision to become obscured. Plaintiffs further allege that,

while his vision was impaired as a result of the officers’ conduct, Kumar collided with Decedent,

causing his fatal injuries.

Those allegations describe affirmative conduct that allegedly created or increased the risk of

harm to Decedent. California law recognizes a distinction between a failure to protect against an

existing danger and affirmative conduct that contributes to or increases the risk of harm.

(Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49 (Weirum) [duty arises where defendant’s

conduct creates an unreasonable risk of harm]; Lugtu v. California Highway Patrol (2001) 26

Cal.4th 703, 716–717 (Lugtu) [CHP officers may be liable where their actions expose individuals

to danger]; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129 (Zelig) [distinguishing

between failure to protect and affirmative conduct increasing risk].)

Whether Plaintiffs can prove these allegations is not before the Court on demurrer. (Blank,

supra, 39 Cal.3d at p. 318.) The Court therefore concludes that Plaintiffs have adequately

alleged facts that, if proven, could support a duty of care.

Defendants’ reliance on Adams v. City of Fremont (1998) 68 Cal.App.4th 243 (Adams) and

Camp v. State of California (2010) 184 Cal.App.4th 967 (Camp) does not require a different

result at this stage. Those cases involved developed factual records concerning the conduct of

law enforcement officers and the circumstances giving rise to the alleged injuries. Here, the

Court is confined to the allegations of the Complaint. Those allegations, accepted as true,

describe affirmative conduct by law enforcement that allegedly increased the danger to

Decedent.

Accordingly, the demurrer is not sustained on the ground that Plaintiffs have failed to allege a

duty.

3. The Absence of a Special Relationship Does Not Require Sustaining the Demurrer

Defendants further contend that police officers generally owe no duty to control the conduct of

others absent a special relationship. (Adams, supra, 68 Cal.App.4th at pp. 247, 277.)

“A special relationship with a person in peril is not established simply because police officers

responded to a call for assistance and took some action at the scene.” (Adams, supra, 68

Cal.App.4th at p. 279.) Likewise, “[t]o create a special relationship and a duty of care, there must

be evidence that the police ‘made misrepresentations that induced a citizen’s detrimental

reliance [citation], placed a citizen into harm’s way [citations], or lulled a citizen into a false sense

of security and then withdrew essential safety precautions.’” (Camp, supra, 184 Cal.App.4th at p.

978.)

The special-relationship cases cited by Defendants, however, do not compel dismissal where the

alleged theory is based on affirmative conduct that itself created or increased the risk of harm. A

duty may arise where a defendant’s affirmative conduct places an individual in a more

dangerous position than if the defendant had not acted. (Zelig, supra, 27 Cal.4th at 1129;

Weirum, supra, 15 Cal.3d at p. 49.)

Plaintiffs allege precisely such a theory. They allege that the officers’ conduct during the

encounter impaired Decedent’s vision and contributed to the circumstances that resulted in his

collision with Kumar. Whether that theory ultimately can be established is not properly resolved

on demurrer.

Accordingly, the absence of allegations establishing a special relationship does not require

sustaining the demurrer.

4. Government Code Section 845 Does Not Establish Immunity on the Face of the Complaint

Defendants next contend that Government Code section 845 immunizes the conduct alleged in

the Complaint.

Government Code section 845 provides:

“Neither a public entity nor a public employee is liable for failure to establish a police department

or otherwise to provide police protection service or, if police protection service is provided, for

failure to provide sufficient police protection service.”

The Court does not find that immunity necessarily applies based on the allegations of the

Complaint.

Again, the critical distinction is between a claim based upon a failure to provide police protection

and a claim based upon affirmative conduct that allegedly increased the risk of harm. Plaintiffs

do not allege merely that CHP failed to protect Decedent from a preexisting danger. They allege

that officers confronted Decedent, shined lights on him, employed improper apprehension

techniques and maneuvers, obscured his vision, and thereby contributed to the fatal collision.

Government Code section 845 does not, on the face of this Complaint, necessarily establish

immunity for those alleged acts. (Zelig, supra, 27 Cal.4th at p. 1129 [distinguishing between

failure to protect and affirmative conduct increasing risk]; Lugtu, supra, 26 Cal.4th at pp. 716-717

[CHP officers may be liable where their actions expose individuals to danger].)

Similarly, where public employees engage in operational conduct that places an individual in a

more dangerous position than if they had not acted at all, immunity for failure to provide

protection does not necessarily apply. (Lugtu, supra, 26 Cal.4th at pp. 716-717; McCorkle v. City

of Los Angeles (1969) 70 Cal.2d 252, 259–261 (McCorkle) [liability where officer’s conduct

contributed to danger].)

At this stage, the Court need not determine whether Plaintiffs will ultimately establish that the

officers’ conduct was actionable or whether Defendants can establish an applicable immunity on

a more developed factual record. The question is whether the alleged immunity clearly and

affirmatively appears from the face of the Complaint. (Davidson v. City of Westminster (1982) 32

Cal.3d 197, 202; Barner v. Leeds (2000) 24 Cal.4th 676, 683–684.) It does not.

5. Government Code Section 820.2 Does Not Require Sustaining the Demurrer

Defendants also contend that discretionary immunity under Government Code section 820.2

bars Plaintiffs’ claims.

Government Code section 820.2 provides discretionary immunity and states “...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.) The immunity applies to decisions that involve a balancing of

risks and advantages, regardless of whether the balancing was “strictly careful, thorough, formal,

or correct,” and does so only after the question of whether a duty exists. (Caldwell v. Montoya

(1995) 10 Cal.4th 972, 983.) Courts have applied the discretionary immunity to decisions that

police officers make in the field. (Conway v. County of Tuolumne (2014) 231 Cal.App.4th 1005.)

The allegations of the Complaint, however, do not establish on their face that all the challenged

conduct necessarily falls within discretionary immunity. Plaintiffs allege specific operational

conduct during the encounter, including shining lights on Decedent, using improper

apprehension techniques and maneuvers, negligently handling the situation, and negligently

communicating during the incident.

The Court need not determine on demurrer whether the challenged conduct ultimately qualifies

for discretionary immunity. The Complaint alleges specific acts that, if proven, could constitute

operational conduct that increased the danger to Decedent. Because the asserted immunity

does not clearly and affirmatively appear from the face of the pleading, the issue does not

provide a basis for sustaining the demurrer at this stage.

CONCLUSION

Plaintiffs have identified a statutory basis for their claim under Government Code section 815.2

and have alleged facts that, if accepted as true, support a theory that Defendants’ affirmative

conduct increased the risk of harm to Decedent and contributed to his death. The Complaint

therefore states a sufficient cause of action against Defendants at the pleading stage.

Defendants’ evidentiary materials cannot be used to resolve factual disputes or establish a

competing version of the incident on demurrer. The allegations concerning the officers’ conduct

are accepted as true for purposes of the demurrer.

Accordingly, Defendants State of California and California Highway Patrol’s demurrer to

Plaintiffs’ first cause of action is OVERRULED.

Defendants State of California and California Highway Patrol are ordered to file an answer to

Plaintiffs’ Complaint within 20 days.