KIRK ALAN HENDERSON VS. CITY OF SAN CARLOS, ET AL.

June 2, 2026 Law and Motion Calendar PAGE 19 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________

2:00 PM LINE 10 24-CIV-07194 KIRK ALAN HENDERSON VS. CITY OF SAN CARLOS, ET AL.

KIRK ALAN HENDERSON RENE E UCROS CITY OF SAN CARLOS JEFFREY M. VUCINICH

DEFENDANT CITY OF SAN CARLOS’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

Defendant City of San Carlos’s demurrer to the first cause of action raised in Plaintiff Kirk Alan Henderson’s first amended complaint (hereinafter “FAC”) filed September 2, 2025, is ruled upon as follows:

Background

This is a negligence action for damages arising from plaintiff’s injuries received when he fell from his bike while riding it on a public road in the City of San Carlos located in San Mateo County on or around April 22, 2024. The FAC alleges plaintiff was thrown from his bicycle due to a change in the surface/elevation of the road. (FAC ¶¶ 11-15.)

The FAC raises the same two causes of action as the initial complaint: negligence and dangerous condition of government property in violation of Government Code section 835. Defendants demur once again to the first cause of action for negligence as improper for failure to state a sufficient factual basis under Code of Civil Procedure, section 430.10, subdivision (e), under Government Code section 835 [public entity immune from liability under Government Code section 840 for condition of public property where condition exists because of act or omission by employee within scope of his employment]. Defendants assert leave to amend should be denied because the cause of action in the FAC remains materially unchanged from the initial complaint thus further leave to amend would be futile.

Plaintiff opposes, contending that the negligence cause of action under Government Code sections 815.2, 815.4, 815.6, and 820, subdivision (a), et seq. is properly pleaded and allowable as an alternative theory of liability.

Meet and Confer

There is no indication that the parties satisfied the meet and confer requirement set forth in Code of Civil Procedure, section 430.41, subdivision (a). However, failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).) As the declaration of Chet P. Reyen in support of defendants’ demurrer states plaintiff’s FAC “asserts materially the same facts as the original Complaint [sic]” the Court surmises further meet and confer efforts would not have reached a different resolution than the demurrer to the initial

June 2, 2026 Law and Motion Calendar PAGE 20 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ complaint. Regardless, parties are reminded that the meet and confer process is an important step in furthering judicial efficiency regarding meritorious cases.

Legal Standard

“ ‘[I]t is well settled that a general demurrer admits the truth of all material factual allegations in the complaint [citation]; that the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]; and that plaintiff need only plead facts showing that he may be entitled to some relief (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.).’ ” (John's Grill, Inc. v.

The Hartford Financial Services Group, Inc. (2024) 16 Cal.5th 1003, 1013.) The “ ‘demurrer tests the sufficiency of the plaintiff’s complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based.’ (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1469, 49 Cal.Rptr.3d 227.)” (Villarroel v. Recology, Inc. (2023) 97 Cal.App.5th 762, 772.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v.

Mirda, (2007) 147 Cal.App.4th 740, 747) and whether the complaint sets “ ‘forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.’ ” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157 [Citation omitted].)

Discussion

Defendant demurs only to the first cause of action for general negligence, brought against the City of San Carlos and Does 1 through 50 being barred by Government Code section 835, relying on Brown v. Poway Unified School District (1993) 4 Cal.4th 820 because the statute sets out “exclusive conditions for which a public entity is liable for injuries caused by a dangerous condition of public property.” (Id. at 829; MPA p.3.) In opposition, relying on Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, plaintiff contends Brown v.

Poway does not preclude claims based on independent negligent acts, particularly failures to inspect, maintain, repair, or warn following creation or discovery of a hazard. (Id. at pp. 1129-1130.) While this broad statement of law is correct, the FAC fails to allege sufficient facts sufficient to state the claims. The Legislature has only allowed public entities to be liable in limited circumstances.

The nature and extent of a public entity's liability for an injury suffered on its property is governed by statute, specifically the Government Claims Act. “[A] public entity is not liable for injuries except as provided by statute (§ 815) and ... section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. ‘[T]he intent of the [Government Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.’ (Williams v. Horvath (1976) 16 Cal.3d 834, 838[, 129 Cal.Rptr. 453, 548 P.2d 1125].)” (Brown v. Poway Unified School Dist. (1993) 4

June 2, 2026 Law and Motion Calendar PAGE 21 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ Cal.4th 820, 829, 15 Cal.Rptr.2d 679, 843 P.2d 624 (Brown).)

(Metcalf v. County of San Joaquin, supra, 42 Cal.4th at p. 129.)

“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.” (Gov. Code, § 815, subd. (a).) No common law tort liability exists for public entities in California, unless based on a statute. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897 (Guzman).) Since public entity liability is statutory in nature, facts material to the existence of such liability must be pleaded with particularity. (Lopez v.

Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) A negligence statute, “standing alone, fails to provide the requisite statutory basis for public entity liability required by Government Code sections 815 and 815.6. [Citation]. It may, however, support liability under Government Code section 815.2 if it imposes a duty of care upon the public entity's employees—who need not be specifically identified in the complaint. [Citation].” (County of Los Angeles v. Superior Court (2024) 107 Cal.App.5th 160, 184-185; Govt.

Code, § 815, subd. (a).)

The FAC in the body of the first cause of action refers to Government Code sections 815.2, 815.4 and 820, subdivision (a), which all relate to the public entities’ liability for acts of its employees or independent contractions and section 830.8 regarding the failure to post warning signs. (FAC ¶ 30.)

Government Code section 815.2 requires that the employee’s act or omission “would, apart from this section, have given rise to a cause of action against that employee...” but also states that “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.” Yet, a public employee is not liable for an injury on public property caused by negligence, “Except as provided in this article, 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.

The liability established by this article is subject to any immunity of the public employee provided by statute and is subject to any defenses that would be available to the public employee if he were a private person.” (Gov. Code, § 840.) “Section 840 makes it explicit that except as provided in Article 3 (ss 840—840.6) 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.

The Law Revision Commission comment also emphasizes that the liability of a public employee for a condition of public property must be grounded upon Article 3 and upon no other statute. (Van Alstyne, California Government Tort Liability, p. 584.) Since the public entity's liability is a vicarious one, it cannot be held liable for an employee's act or omission where the employee himself would be or is immune (Gov. Code, § 815.2, subd. (b)).” (Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 825; (Longfellow v.

County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383 [finding no vicarious liability against public entity based upon Government Code section 840 for negligent acts of employee].)

June 2, 2026 Law and Motion Calendar PAGE 22 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ Government Code section 815.4 relates to independent contractors’ liability, but a public entity is not liable if the public entity would not have been liable if the independent contractor was an employee. Thus, the analysis for a claim under Government Code section 815.2 applies for Government Code section 815.4.

Government Code section 820, subdivision (a) provides, “Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” Government Code section 840 bars liability for the condition of public property. Thus, Government Code section 820 does not apply.

Plaintiff also relies on Government Code section 830.8 as statutory authority in the first cause of action. As recently explained by our Supreme Court regarding Government Code section 830.8, “Section 830.8 provides a second form of immunity, precluding public entity liability “for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code.” (§ 830.8.) Section 830.8, however, sets forth a limitation to such immunity: ‘Nothing in this section exonerates a public entity ... from liability for injury ... caused by such failure if a signal, sign, marking or device ... was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.’ This limitation to section 830.8 immunity is commonly referred to as the ‘concealed trap’ exception. (See Chowdhury v.

City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196–1197, 45 Cal.Rptr.2d 657; Callahan v. City and County of San Francisco (1967) 249 Cal.App.2d 696, 704, 57 Cal.Rptr. 639; see also Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 3.40, p. 253 (Van Alstyne) [immunity under § 830.8 ‘inapplicable when a warning sign ... is necessary to warn of a concealed trap’].)” (Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 654. Thus, “a plaintiff pursuing such a claim must nonetheless prove various elements that are not present when pursuing a claim alleging a public entity created that dangerous condition: (1) the public entity had actual or constructive notice that the approved design resulted in a dangerous condition (see §§ 835, subd. (b), 835.2 [defining “notice” within the meaning of § 835, subd. (b)]); (2) the dangerous condition qualified as a concealed trap, i.e., “would not [have been] reasonably apparent to, and would not have been anticipated by, a person exercising due care” (§ 830.8); and (3) the absence of a warning was a substantial factor in bringing about the injury.” (Id. at pp. 661–662.)

Here, the FAC alleges unknown Does (which is a sufficient allegation) were acting in the course and scope of their employment with the city and they performed actions at the subject roadway causing the injuries sustained by plaintiff. (FAC ¶ 18.) Defendants did so “by negligently, carelessly, and/or recklessly owned, designed, maintained, allowed, permitted, regulated, controlled, serviced, inspected, repaired, modified, altered, monitored, improved, constructed, warned or failed to warn, and/or supervised in regards to the SUBJECT ROADWAY and AREA OF IMPACT as to cause the SUBJECT ROADWAY and the AREA OF IMPACT to be in a dangerous and defective condition on the date of the SUBJECT INCIDENT.” (FAC ¶ 19.) To wit, the subject roadway and area of impact were - dangerously and defectively planned, designed, drafted, engineered, constructed, and positioned,

June 2, 2026 Law and Motion Calendar PAGE 23 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ - lacked warning signs or other signals regarding its dangerous nature - any warning signs there were obstructed - defendant failed to maintain the subject roadway with signage and devices to warn people of the dangerous condition and that - this combination created a foreseeable dangerous condition.

(FAC ¶¶ 21-28.)

These allegations fit squarely into the immunity of Government Code section 840 such that defendant cannot be liable under. Government Code sections 815.2, 815.4 and 820, subdivision (a). They fail to satisfy the pleading requirements set forth in Tansavatdi v. City of Rancho Palos Verdes, supra, 14 Cal.5th 639 for a claim under Government Code section 830.8.

In Guzman v. County of Monterey, supra, 46 Cal.4th 887, relied upon by plaintiff, the court cites cases where “the judgment, expertise and discretion of the City's staff to evaluate” whether the slope stabilization was “ ‘satisfactorily demonstrated’ ” under the ordinance, also did not create a mandatory duty. Nor is there a mandatory duty where government officials have the discretion to evaluate and decide best how to implement the alleged duty, much like the facts here. (See Guzman v. County of Monterey, 46 Cal.4th at 900.) Guzman is not authority to create a duty based upon the allegations in the FAC.

Leave to Amend

“[I]t is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379.) However, based upon the inability of plaintiff in the FAC to state facts sufficient under the Government Claims Act, it may be futile for plaintiff to state a cause of action. Leave should not be granted where, in all probability, amendment would be futile. (Foroudi v.

Aerospace Corp. (2020) 57 Cal.App.5th 992, 1001.) It is the burden of the party seeking leave to amend to show the possibility that amendment can cure the legal defects of the pleading. (Frayo v. Martin (2024) 102 Cal.App.5th 1025, 1033; Fox Paine & Co., LLC v. Twin City Fire Ins. Co. (2024) 104 Cal.App.5th 1034, 1060.) Thus, if plaintiff believes that he can state a cause of action, he should properly contest the tentative ruling and provide the facts and statutory authority that demonstrates that amendment will be futile.

If plaintiff does not make this showing, then the court SUSTAINS WITHOUT LEAVE defendant’s demurrer to the FAC.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, counsel for defendant shall prepare a written order repeating verbatim the tentative ruling for the Court’s signature, pursuant to California Rules of Court, rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law.