Summerfield v. City of Inglewood ( 2023 )

Filed 10/25/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DWIGHT SUMMERFIELD et al., B324117
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 21STCV30545)
v.
CITY OF INGLEWOOD,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa A. Beaudet, Judge. Affirmed.
Law Office of Christie E. Webb, Christie E. Webb; Law
Office of Judith K. Williams and Judith K. Williams for Plaintiffs
and Appellants.
Olivarez Madruga Law Organization, Thomas M. Madruga
and Tania Ochoa for Defendant and Respondent.
_________________________
INTRODUCTION
Dwight and Patricia Summerfield and the estate of Andrew
Summerfield (appellants) filed a wrongful death action for the
death of the Summerfields’ son Andrew against the City of
Inglewood (the City). Appellants alleged the City was negligent
and created a “dangerous condition” in a public park by failing to
install security cameras in an area with ongoing criminal
activity, which caused an unknown third party to fatally shoot
their son.
The trial court sustained the City’s demurrer to the
complaint with leave to amend. Appellants filed a first amended
complaint, which the trial court sustained, this time without
leave to amend. The trial court then entered a judgment of
dismissal.
We conclude appellants’ dangerous condition and
negligence claims fail and the trial court did not err in declining
to grant leave to amend. We therefore affirm the judgment of
dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
On August 18, 2021, appellants filed a complaint against
the City, alleging two causes of action for 1) dangerous condition
on public property and 2) negligence.
The complaint alleged the following:
On January 5, 2021, Andrew (decedent) drove to Darby
Park in the City of Inglewood to play basketball. Decedent was
shot and killed while he was in his vehicle in the Darby Park
parking lot.
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Darby Park and its facilities are “owned, maintained,
supervised, [and/or] controlled” by the City. Darby Park “was
supposed to be closed to the public due to Covid-19.” Appellants
are informed and believe “a Parks and Recreation employee [of
the City] opened the Darby Park gym to the public in violation of
the [C]ity’s Covid-19 protocol, which was a substantial factor in
drawing people to Darby Park” including decedent and the
perpetrator. Appellants “are informed and believe . . . there have
been multiple shooting[s] at Darby Park prior to January 5,
2021.”
On the day of the shooting on January 5, 2021, “there were
no cameras in the Darby Park parking lot, and a lack of adequate
precautions . . . including but not limited to, attendants, control
measures, and/or security.” Darby Park and its adjacent parking
lot constitute a “dangerous condition” that the City failed to
remedy or prevent, “despite actual or constructive knowledge of
the condition.” The City was “negligent in connection with their
ownership, control, maintenance, and/or use of the premises.”
The City breached its duty of care to decedent and appellants by
failing to provide security cameras in the area, failing to provide
adequate precautions, and failing to provide adequate warning
about the dangerous condition.
As a direct and proximate cause of the City’s negligence
and unsafe condition of the premises, the decedent was shot and
appellants suffered significant injuries, including
special/economic damages (such as decedent’s hospital and
medical expenses), general/non-economic damages, as well as the
related loss of love, companionship, comfort, care, affection, and
guidance of decedent.
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B. Demurrer to the Complaint and Trial Court’s Ruling
On November 16, 2021, the City filed a demurrer to the
complaint pursuant to Code of Civil Procedure section 430.10,
subdivisions (e) and (f).
At the hearing on May 2, 2022, the trial court sustained the
demurrer with leave to amend. The court ruled:
Whether the City failed to provide “adequate precautions,”
such as “control measures and/or security,” could not form a basis
for liability because the City “is immune from liability arising
from its failure to provide security or supervision at Darby Park”
parking lot. Public entities generally are not liable for failing to
protect against third party crime. As for the City’s alleged failure
to provide other “precautions” constituting a dangerous condition,
the court found the allegation vague. With respect to appellants’
second allegation that the City failed to provide “adequate
warning” about the dangerous condition, the court found the
City’s alleged failure to warn of criminal activity in the Darby
Park parking lot could not form a basis for liability. With respect
to appellants’ third allegation, the court found the absence of
security cameras might provide a basis for liability against the
City under Government Code section 835. However, the court
found the complaint failed to allege “why the lack of cameras in
this instance created a substantial risk of [d]ecedent’s shooting
such that it constituted a dangerous condition” per Government
Code section 830, subdivision (a).
C. The Allegations of the First Amended Complaint
On May 17, 2022, appellants filed a first amended
complaint (FAC). For the most part, the FAC listed the same two
causes of action and alleged the same facts set out in the original
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complaint. The FAC added these facts and clarifications:
A “City of Inglewood Parks and Recreation employee
opened the Darby Park gym to the public in violation of the
[C]ity’s Covid-19 protocol, which was a substantial factor in
drawing people to Darby Park” including decedent and the
perpetrator. Appellants are informed and believe “there were no
policies, procedures and/or guidelines in place in order for the
City of Inglewood Parks and Recreation employees to comply
with COVID-19 protocol.” The City “failed to ensure controlling
and/or security measures for the Darby Park gym to be closed to
the public, including . . . measures that would have precluded
Parks and Recreation employees from opening the Darby Park
gym to the public, such as limiting employees’ access to means or
facilities necessary to open the D[a]rby Park gym and/or specific
instructions to refrain from opening the Darby Park gym.”
Appellants cited Government Code sections 815.2, subdivision (a)
and 815.4 in support of the FAC.
There have been “multiple shootings” at Darby Park before
January 5, 2021. “A 7-year-old boy was shot and killed on
December 8, 1997 in Darby Park . . . which [appellants] are
informed and believe was a result of gang retaliation. [¶] . . . A
22-year-old man was fatally shot in his car in the parking lot of
D[a]rby Park . . . on October 15, 2012.” Appellants believe that
“considering multiple shootings at Darby Park prior to January 5,
2021, lack of cameras present attractive opportunities to the
criminal element of society, which renders the Darby Park
parking lot attractive to criminal activities and inherently
dangerous.”
At the time of the shooting, there were no cameras in the
Darby Park parking lot and a lack of adequate precautions such
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as “control measures and/or security.” This constituted a
“dangerous condition” that the City “failed to remedy or prevent,
despite actual or constructive knowledge of the condition.” The
City was also “negligent in connection with [its] ownership,
control, maintenance, and/or use of the premises.” As a “direct,
proximate, and legal result” of the dangerous condition and the
City’s negligence, decedent was shot, causing appellants to suffer
significant injuries.
The City is liable for violating Government Code section
835 and is liable for decedent’s death caused by a breach of its
mandatory duty per Government Code section 815.6. The City
breached its duty of care by maintaining a dangerous condition,
including “[f]ailing to provide any adequate precautions” such as
control measures and security, “[f]ailing to provide cameras in
the Darby Park parking lot”, and “[f]ailing to provide any
adequate warning about the dangerous condition.”
D. Demurrer to the FAC and the Trial Court’s Ruling
On June 20, 2022, the City filed a demurrer to the FAC
pursuant to Code of Civil Procedure section 430.10, subdivisions
(e) and (f). The City presented several arguments as to why the
complaint failed to state causes of action for dangerous condition
of public property and for negligence.
On August 2, 2022, the trial court heard oral argument and
sustained the demurrer as to both causes of action without leave
to amend.
The court ruled the FAC did “not sufficiently allege[] facts
to cure the prior defect” and did not “set forth allegations that
show that the lack of surveillance cameras created a substantial
risk of [d]ecedent’s shooting.” The court found the “new
allegations do not demonstrate that the absence of surveillance
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cameras within Darby Park created a substantial risk of injury to
[d]ecedent, thereby rendering Darby Park a dangerous
condition.” The court further found that because appellants’
negligence cause of action is predicated upon their dangerous
condition of public property cause of action, the negligence cause
of action “must similarly fail.”
On August 16, 2022, the trial court entered judgment in
favor of the City and against appellants.
This appeal followed.
DISCUSSION
Appellants argue the trial court erred in sustaining the
City’s demurrer to the FAC without leave to amend as to both the
negligence and dangerous condition on public property causes of
action. We disagree.
A. Standard of Review
“In reviewing a judgment of dismissal after a demurrer is
sustained without leave to amend, we assume the truth of all
properly pleaded facts. We examine the complaint’s factual
allegations to determine whether they state a cause of action on
any available legal theory regardless of the label attached to a
cause of action. [Citation.] We do not assume the truth of
contentions, deductions, or conclusions of fact or law, and may
disregard allegations that are contrary to the law or to a fact that
may be judicially noticed.” (Fischer v. Time Warner Cable Inc.
(2015) 234 Cal.App.4th 784, 790.) We review de novo a trial
court’s ruling on a demurrer and examine the operative
complaint to determine whether it alleges facts sufficient to state
a cause of action under any legal theory. (King v. CompPartners,
Inc. (2018) 5 Cal.5th 1039, 1050 (King); Dudek v. Dudek (2019)
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34 Cal.App.5th 154, 163 (Dudek).) We will affirm an order
sustaining a demurrer on any proper legal ground whether or not
the trial court relied on that theory or it was raised by the
defendant. (Fischer, at p. 790.)
In addition, “ ‘[w]hen a demurrer is sustained without leave
to amend, “we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm.” ’ ” (Dudek, supra,
34 Cal.App.5th at p. 163, italics added.) Here, appellants
shoulder the burden to show a reasonable possibility the
operative complaint can be amended to state a cause of action.
(Id. at pp. 163–164; King, supra, 5 Cal.5th at p. 1050.) They can
make this showing in the first instance to the appellate court.
(Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322
(Roman).)
B. The Trial Court Properly Sustained the Demurrer to
Cause of Action for Dangerous Condition on Public
Property.
Appellants contend the FAC alleged sufficient facts,
“including two shootings that resulted in deaths” such that they
“should be allowed to go forward and present evidence that the
[City’s] failure to install cameras or to post warnings, given the
City’s alleged actual or implied notice of ongoing violent criminal
activity, constituted a dangerous condition under Government
Code section 835.”
1. Applicable Law
A public entity like the City is not liable for an injury
arising out of an act or omission of the public entity or its
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employees except as provided by statute. (Gov. Code,1 § 815,
subd. (a).) The sole statutory basis for imposing liability on
public entities as property owners is section 835. (Cerna v. City
of Oakland (2008) 161 Cal.App.4th 1340, 1347 (Cerna); Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1131–1132 (Zelig);
Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438–439
(Brenner).)
Section 835 provides, a public entity is “liable for injury
caused by a dangerous condition of its property if the plaintiff
establishes that the property was in a dangerous condition at the
time of the injury, that the injury was proximately caused by the
dangerous condition, that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was
incurred, and that either: [¶] (a) A negligent or wrongful act or
omission of an employee of the public entity within the scope of his
employment created the dangerous condition; or [¶] (b) The public
entity had actual or constructive notice of the dangerous condition
under Section 835.2 a sufficient time prior to the injury to have
taken measures to protect against the dangerous condition.”
(§ 835, italics added.)
A “dangerous condition” is defined as “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 foreseeable that it will be used.” (§ 830,
subd. (a).) The existence of a dangerous condition is ordinarily a
question of fact but “can be decided as a matter of law if
reasonable minds can come to only one conclusion.” (Bonanno v.
1 Undesignated statutory references are to the Government
Code.
9
Central Contra Costa Transit Authority (2003) 30 Cal.4th
139, 148 (Bonanno).) The Legislature has specified that a
“condition is not dangerous . . . if the trial or appellate court,
viewing the evidence most favorably to the plaintiff, determines
as a matter of law that the risk created by the condition was of
such a minor, trivial or insignificant nature in view of the
surrounding circumstances that no reasonable person would
conclude that the condition created a substantial risk of injury
when such property . . . was used with due care in a manner in
which it was reasonably foreseeable that it would be used.”
(§ 830.2.)
A claim alleging a dangerous condition may not rely on
generalized allegations but must specify in what manner the
condition constituted a dangerous condition. (Cerna, supra,
161 Cal.App.4th at p. 1347; Brenner, supra, 113 Cal.App.4th at
p. 439.) A dangerous condition exists when public property “is
physically damaged, deteriorated, or defective in such a way as to
foreseeably endanger those using the property itself,” or
possesses physical characteristics in its design, location, features
or relationship to its surroundings that endanger users.
(Bonanno, supra, 30 Cal.4th at pp. 148–149; see Thimon v. City of
Newark (2020) 44 Cal.App.5th 745, 754 (Thimon).)
A public entity may be liable for a dangerous condition of
public property even where the immediate cause of plaintiff's
injury is a third party’s negligent or illegal act if some physical
characteristic of the property exposes its users to increased
danger from third party negligence or criminality. (Cerna, supra,
161 Cal.App.4th at p. 1348; Bonanno, supra, 30 Cal.4th at
p. 152.) But “it is insufficient to show only harmful third party
conduct, like the conduct of a [grossly negligent] motorist.”
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(Cerna, at p. 1348.) “ ‘[T]hird party conduct, by itself, unrelated
to the condition of the property, does not constitute a “dangerous
condition” for which a public entity may be held liable.’ ” (Zelig,
supra, 27 Cal.4th at p. 1134.) There must be some defect in the
physical condition of the property and that defect must have
some causal relationship to the third party conduct that injures
the plaintiff. (Id. at pp. 1134–1140 [see discussion].) “[P]ublic
liability lies under section 835 only when a feature of the public
property has ‘increased or intensified’ the danger to users from
third party conduct.” (Bonanno, at p. 155.)
2. Analysis
We review the FAC to ascertain whether it states facts
sufficient to constitute a dangerous condition on public property
pursuant to section 835.
Appellants’ FAC identified three features that allegedly
made the City’s Darby Park parking lot dangerous: 1) the City’s
alleged failure to provide “any adequate precautions” such as
“control measures, and/or security”; 2) the City’s failure to
provide security cameras in the Darby Park parking lot; and
3) the City’s failure to provide “any adequate warning about the
dangerous condition.” We address each in turn.
a. Failure to Provide Adequate Precautions
At the outset, we note case law provides that the presence
or absence of security guards is not a physical characteristic of
public property and thus not actionable as a dangerous condition.
“A lack of human supervision and protection is not a deficiency in
the physical characteristics of public property.” (Cerna, supra,
161 Cal.App.4th at p. 1352; see Zelig, supra, 27 Cal.4th at
pp. 1137, 1140, 1144–1145 [lack of police screening at courthouse
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not a dangerous condition of property]; Bartell v. Palos Verdes
Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492, 497–498 [lack of
supervision at school playground not a dangerous condition of
property].) Public entities, like the City, are immune from
liability for asserted failures to provide security services and/or
police presence. (§ 845; Zelig, at pp. 1141–1147 [see discussion};
Cerna, supra, 161 Cal.App.4th at p. 1352.) Thus, appellants
cannot support their claim that a dangerous condition exists
based on the City’s alleged failure to provide security at Darby
Park’s parking lot.
To the extent appellants claim the City failed to provide
“adequate precautions” for the “Darby Park gym to be closed to
the public, including . . . measures that would have precluded
[City] employees from opening the Darby Park gym to the
public,” we again find this does not support their claim that a
dangerous condition exists. The FAC does not sufficiently allege
how a gymnasium open to the public, by itself, is a dangerous
condition or is defective in such a way as to foreseeably endanger
those using the property itself.
The FAC does not otherwise specify what other type of
“adequate precautions” in the context of control measures and
security the City failed to provide. Claims against public entities
must be specifically pleaded; generalized allegations about the
dangerous condition will not suffice and, rather, “must specify in
what manner the condition constituted a dangerous condition.”
(Brenner, supra, 113 Cal.App.4th at pp. 439; Cerna, supra,
161 Cal.App.4th at p. 1347.)
We conclude the FAC does not allege sufficient facts that
the City’s failure to provide “adequate precautions” can form the
basis of a dangerous condition of public property claim.
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b. Failure to Provide Surveillance Cameras
The FAC next alleges the absence of security cameras in
the Darby Park parking lot is a dangerous condition.
Appellants argue on appeal that they alleged a “viable and
substantial dangerous condition claim based upon the City’s
actual or constructive notice of alleged ongoing shootings in
Darby Park and the City’s failure to install security cameras as a
crime deterrent.” They argue this “is a matter of people being
shot or otherwise injured on public property, a public park with
alleged instances of known violent criminal behavior, that did not
have installed security cameras that may deter criminal and
gang conduct—and dying.”
Appellants have not met their burden.
First, appellants allege there was “ongoing dangerous
criminal activity” but refer to two shootings prior to January 5,
2021—one over 23 years ago (on December 8, 1997) and one
nearly nine years ago (on October 15, 2012). We find the
reference to two crimes throughout a 23-year span does not
constitute ongoing criminal activity. The FAC noticeably does
not reference any other crimes or shootings. In addition, while
the FAC specifies that the October 15, 2012 shooting was similar
to the case before us, that is, “in the parking lot of D[a]rby Park,”
the December 8, 1997 shooting was not in the parking lot, but
was actually “in Darby Park” per the wording in the FAC. As a
demurrer tests the adequacy of facts pleaded, these differences in
the locations of the crimes alleged in the FAC do not assist
appellants in sufficiently pleading ongoing criminal activity. (See
Erfurt v. State of California (1983) 141 Cal.App.3d 837, 844–845
[notice can be shown by the “ ‘long continued existence of the
dangerous or defective condition’ ”].)
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At oral argument, appellants argued the City conceded it
had notice of ongoing dangerous criminal activity during the
underlying proceedings; however, the City confirmed it did not
concede this issue. Appellants also argued their appeal is only
with respect to the first element of section 835—whether the
property was in a dangerous condition at the time of the injury—
and believed the other elements were conceded as having been
met. A review of the record, including the two pages referenced
by appellants during oral argument, shows the trial court never
found the remaining elements of section 835 were met; rather,
the court only addressed the first element and found “the
allegations within [the FAC] were insufficient to properly
demonstrate the Darby Park parking lot ‘was in a dangerous
condition at the time of [Decedent’s] . . . injury.’ ” Further, as
explained above, our analysis in this regard faults appellants as
not having adequately pleaded ongoing criminal activity in the
FAC when it referenced two crimes throughout a 23-year span.
Second, determining whether a dangerous condition exists
for which a public entity may be held liable is a complex question
that rests on varied fact patterns. As the Supreme Court
instructs us in Zelig, for purposes of deciding when a dangerous
condition exists in cases involving third party conduct, it is
necessary to address two elements. “The first is whether it can
be said the defect complained of describes a dangerous physical
condition and second, weather the dangerous condition has a
causal relationship to the third party conduct that actually
injured the plaintiff.” (City of San Diego v. Superior Court (2006)
137 Cal.App.4th 21, 29, italics added [discussing Zelig].) As to
the first element, the court in Zelig notes the necessary coupling
of third party conduct and defective condition occurs where the
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property itself exists in a dangerous condition, and that condition
increases or intensifies the risk of injury to the public. (Zelig,
supra, 27 Cal.4th at pp. 1136–1138.) Such condition “[m]ost
obviously . . . exists when public property is physically damaged,
deteriorated, or defective in such a way as to foreseeably
endanger those using the property itself.” (Bonanno, supra,
30 Cal.4th at p. 148.)
For instance, in Hayes v. State of California (1974)
11 Cal.3d 469 (Hayes), the failure of a government entity to light
a beach at night does not constitute a defective condition because
unlit beaches are not inherently dangerous. (City of San Diego v.
Superior Court, supra, 137 Cal.App.4th at p. 29 [discussing
Hayes].) Similarly, in Moncur v. City of Los Angeles (1977)
68 Cal.App.3d 118, 126, locating lockers in an area of an airport
terminal accessible to the public without weapons screening did
not create a dangerous condition of property. However, public
property where plantings obscured a stop sign has been held to
be a defective condition (De La Rosa v. City of San Bernardino
(1971) 16 Cal.App.3d 739, 745–746), as has an intersection with
malfunctioning traffic signals (Mathews v. State of California ex
rel. Dept. of Transportation (1978) 82 Cal.App.3d 116, 120).
Here, the FAC does not establish a sufficiently pleaded
claim for dangerous condition of public property based upon a
third party’s shooting coupled with the absence of security
cameras. We do not agree with the logic presented in appellants’
argument on appeal. Darby Park’s parking lot is not dangerous
because it lacks surveillance cameras—it needs surveillance
cameras if it is dangerous. Appellants may not presuppose the
dangerousness of Darby Park’s parking lot and then fault the
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City for not installing surveillance cameras to deter said criminal
conduct.
This is not like the fact pattern in Peterson v. San
Francisco Community College Dist. (1984) 36 Cal.3d 799, 812–
814, where the court held a dangerous condition was created by
untrimmed foliage around a campus parking lot and stairway
that facilitated the perpetration of an attempted rape.
Appellants rely on Slapin v. Los Angeles International
Airport (1976) 65 Cal.App.3d 484, where the plaintiff was
assaulted and injured by an unknown assailant while in a dark,
unlit parking lot used by the airport. (Id. at p. 486.) The
reviewing court in Slapin found the trial court erred in
sustaining the demurrer without leave to amend because
plaintiff’s complaint adequately pleaded that the absence of
proper lighting in an airport parking lot contributed to or
facilitated the assault, where there was notice of ongoing
criminal activity; it thus presented a defective/dangerous
physical condition. (Id. at pp. 488, 490.) “That a mugger thrives
in dark public places is a matter of common knowledge.” (Id. at
p. 488.)
The same cannot be said here, as the FAC does not
sufficiently allege with the requisite particularity that the
absence of surveillance cameras in Darby Park’s parking lot
facilitated a third party’s shooting of decedent while in his vehicle
in the parking lot, such that it is a defective or dangerous
condition. “ ‘A condition is not dangerous “if the trial or appellate
court, viewing the evidence most favorably to the plaintiff,
determines as a matter of law that the risk created by the
condition was of such a minor, trivial, or insignificant nature in
view of the surrounding circumstances that no reasonable person
16
would conclude that the condition created a substantial risk of
injury when such property or adjacent property was used with
due care in a manner in which it was reasonably foreseeable that
it would be used.” ([§ 830.2].)’ ” (Thimon, supra, 44 Cal.App.5th
at p. 754.) In the present case, the FAC does not plead sufficient
facts to establish that the absence of security cameras created a
substantial risk of risk of being shot. The “necessary causal
connection between the condition of the property and [the] crime
was not present.” (Zelig, supra, 27 Cal.4th at pp. 1137, 1140.)
c. Failure to Provide Adequate Warning
Third, appellants argue the FAC properly alleged that the
City “maintained a dangerous condition” by failing to “provide
adequate warning about the dangerous condition.”
We have already found that the FAC did not adequately
plead the existence of a dangerous condition, so as to require the
City to provide warning of same. We have also found that the
FAC did not sufficiently plead the existence of “ongoing criminal
activity” such that the City had adequate prior notice, actual or
constructive, of the condition. (See § 835.2, subd. (b).)
And finally, case law provides a public entity has no duty to
warn against criminal conduct. Hayes held that the failure to
post a warning that the beach was frequented by undesirable
persons did not fall within section 835, since the problem of crime
is well known to the public and the warning would be
inconsistent with the administrative-legislative determination
that the beach should be used by the public. (Hayes, supra,
11 Cal.3d at pp. 472–473 [“both public awareness of the
prevalence of crime and policy factors militate against imposing a
governmental duty to warn in circumstances such as these”].)
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C. The Trial Court Properly Sustained the Demurrer to
the Negligence Cause of Action.
As previously noted, a public entity like the City is not
liable for an injury arising out of an act or omission of the public
entity or its employees except as provided by statute. (§ 815,
subd. (a).) “In other words, direct tort liability of public entities
must be based on a specific statute declaring them to be liable, or
at least creating some specific duty of care, and not on the general
tort provisions of Civil Code section 1714. Otherwise, the general
rule of immunity for public entities would be largely eroded by
the routine application of general tort principles.” (Eastburn v.
Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183,
italics added.) As Zelig observed, “ ‘ “[t]he intent of the [Tort
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.” ’ ”
(Zelig, supra, 27 Cal.4th at p. 1127.)
Appellants fail to cite any statute which creates liability
against the City for their claim. The two statutes cited—sections
815.2, subdivision (a) and 815.4—both stand only for the
proposition that a public entity may be liable for an act of an
employee if the act falls within the course and scope of
employment. However, appellants’ negligence cause of action is
predicated on their dangerous condition on public property claim.
The FAC alleges the City breached its duty of care by
maintaining a dangerous/unsafe condition and for its failure to
warn of the dangers thereon. Thus, we agree with the trial
court’s assessment that because the first cause of action fails as a
matter of law, appellants’ second cause of action similarly fails.
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Appellants concede the FAC was “not alleged as precisely
as it could be” but refer us to sections 840.2 and 820, which they
contend “clearly establish the government employee’s liability for
injury . . . aside from that of not maintaining a dangerous
condition on its property.” That may be true, but the fact
remains, we are here on appeal following an order sustaining a
demurrer, which tests the legal sufficiency of the operative
pleading. We reject appellants’ argument that “there is no need
to cite to any statute which creates liability.”
D. Leave to Amend
Generally, leave to amend is warranted when the
complaint is in some way defective, but plaintiff has shown in
what manner the complaint can be amended and “ ‘how that
amendment will change the legal effect of [the] pleading.’ ”
(Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Appellants
shoulder the burden to show a reasonable possibility the defect in
the FAC can be cured by amendment; if it can, the trial court
abused its discretion in sustaining the demurrer without leave to
amend. (Dudek, supra, 34 Cal.App.5th at pp. 163–164.)
Appellants have advanced amendments on appeal that they
contend would cure the defects of the FAC. Because appellants
are allowed to make this showing in the first instance to the
appellate court, we will review their contention. (Roman, supra,
85 Cal.App.4th at p. 322.)
Appellants provide the FAC “did not include any specifics
about the multiple shootings in Darby Park (other than giving
the examples of the two previous murders)” and “did not address
any additional problematic criminal activity in Darby Park which
the City could have had notice of and which could have created a
dangerous condition and a duty to warn.” They further contend
19
they could add allegations regarding “crime in the areas of
Inglewood immediately surrounding Darby Park [which] is
relevant to any duty by the City to ‘protect against’ the dangerous
condition, i.e., to provide notice, to install cameras, or to take
other protective measures.” Appellants believe they could amend
the FAC to include this information which “could be obtained
through discovery or independent additional investigation.”
This is not enough.
“To satisfy that burden on appeal, a plaintiff ‘must show in
what manner he can amend his complaint and how that
amendment will change the legal effect of his pleading.’
[Citation.] The assertion of an abstract right to amend does not
satisfy this burden. [Citation.] The plaintiff must clearly and
specifically set forth the ‘applicable substantive law’ [citation] and
the legal basis for amendment, i.e., the elements of the cause of
action and authority for it. Further, the plaintiff must set forth
factual allegations that sufficiently state all required elements of
that cause of action. [Citations.] Allegations must be factual and
specific, not vague or conclusionary. [Citation.] [¶] The burden of
showing that a reasonable possibility exists that amendment can
cure the defects remains with the plaintiff; neither the trial court
nor this court will rewrite a complaint. [Citation.] Where the
appellant offers no allegations to support the possibility of
amendment and no legal authority showing the viability of new
causes of action, there is no basis for finding the trial court
abused its discretion when it sustained the demurrer without
leave to amend.” (Rakestraw v. California Physicians’ Service
(2000) 81 Cal.App.4th 39, 43–44, italics added; see Hedwall v.
PCMV, LLC (2018) 22 Cal.App.5th 564, 579–580.)
20
Here, appellants’ proposed allegations about “additional
problematic criminal activity in Darby Park” and “crime in the
areas of Inglewood immediately surrounding Darby Park” are
vague and not specific. Appellants in no way explain how these
proposed amendments would change the legal effect of the
allegations in their FAC and merely state in a conclusory fashion
that they “could have created a dangerous condition and a duty to
warn.” Furthermore, appellants fail to propose any new facts
addressing the main issue of the FAC as we see it, i.e., how the
City’s alleged failure to install surveillance cameras in the
parking lot of Darby Park amounts to a dangerous condition. We
therefore affirm the trial court’s order denying leave to amend.
DISPOSITION
We affirm the judgment of dismissal and the underlying
order sustaining the demurrer to the causes of action for
dangerous condition on public property and negligence. Costs on
appeal are awarded to respondent City of Inglewood.
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
We concur:
WILEY, J. VIRAMONTES, J.
21
WILEY, J., Concurring.
The gravity of this case is sobering. The Summerfields’ son
Andrew was murdered when he went to play in the park. The
family’s loss is overwhelming.
Despite their anguish, the Summerfields cannot hold the
City of Inglewood liable for the act of an unknown killer. The
analysis requiring this conclusion illustrates the deep structure
of modern tort law—a simple structure that lends predictability
to the law and that unites our result with nearly 80 years of
California tort jurisprudence.
In 1944, Justice Roger Traynor told us how to decide this
type of case: public policy demands judges in tort suits fix
responsibility where it will most effectively reduce hazards. (See
Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 462
(Escola) (conc. opn. of Traynor, J.).) The Traynor approach
imposes tort duties on defendants when the expected safety
benefit outweighs the burden, but refrains when the burden
exceeds the expected benefits. A leading tort scholar aptly
summarizes Traynor’s approach as “the torts lodestar: the
irresistible simplicity of preventing harm.” (See Sharkey, The
Irresistible Simplicity of Preventing Harm (2023) 16 J. Tort L.
143, 143.)
The logic and power of Traynor’s approach have, since
1944, made it into national as well as California law. (See Air
and Liquid Systems Corp. v. DeVries (2019) 586 U.S. __, __ [139
S.Ct. 986, 994–995] [majority opinion determines tort duty by
analyzing who is in the better position to prevent the injury];
id. at p. __ [997] (dis. opn. of Gorsuch, J.) [dissent uses same
method]; see generally Sharkey, Modern Tort Law: Preventing
1
Harms, Not Recognizing Wrongs (2021) 134 Harv. L.Rev. 1423,
1423, fn. 3, 1435–1444.)
The Traynor approach resolves this case.
The Summerfields seek to impose a tort duty that is
unprecedented: they cite no law requiring a city to post cameras
in parks.
Justice Traynor certainly was willing to recognize novel
tort duties. He was famous for doing so. (See White, The
American Judicial Tradition (3d ed. 2007) pp. 243–266.) But he
imposed only duties that were cost-justified from a social
viewpoint. His approach puts demands on plaintiffs aiming to
create new law.
We must ask whether the Summerfields give us a reliable
basis for thinking the expected benefits of their proposed safety
measures would outweigh the expected burdens.
What exactly are the Summerfields proposing?
To start, they urge us to mandate a duty for every
municipality (and, logically, every public entity) in California to
install, maintain, and monitor security cameras at every park
(and, logically, every public facility) where there has been
criminal violence. The duty would seem to include hiring trained
personnel to respond rapidly and visibly to brewing violence, for
the streetwise would be unimpressed by mere Potemkin cameras.
Where do the Summerfields propose the cameras go? How
many locales experience criminal violence? Thirty-five years ago,
the California Legislature counted nearly 600 criminal street
gangs in California and hundreds of yearly gang-related murders
in Los Angeles alone. (Pen. Code, § 186.21.)
Our county’s murder problem is widespread. (See, e.g.,
“The Homicide Report,” an ongoing project of the L.A. Times
2
attempting to document every known homicide in Los Angeles
County, available at <homicide.latimes.com>. As the project’s
main page changes rapidly, sometimes many times a day, its
Frequently Asked Questions page <homicide.latimes.com/about/>
[as of Oct. 24, 2023], is archived at https://perma.cc/K5AP-
PDHQ.)
This proposed new duty would require many mandatory
locations for the Summerfields’ cameras.
Although the Summerfields ask us to use the power of tort
incentives to impose a sizeable public works program on public
entities, they offer no reason to think the expenditure would be
rational. Their proposal gives no confidence the safety benefits
would outweigh the burden.
The California Supreme Court rejected similarly
unpromising proposals to combat gang violence when it decided
Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1210–1223
(Castaneda). A gang member’s bullet wounded plaintiff Ernest
Castaneda, who lived in a mobile home park near the gang-
affiliated Levario family. Paul Levario was hosting fellow
Northside gang members in his home when rival Westside gang
members arrived outside. Northsiders emerged from Levario’s
home, exchanged insults with the Westsiders, and shot bystander
Castaneda by accident. (Id. at pp. 1210–1211.) Castaneda
presented evidence about recent park gang activity, including
gun shots. (Id. at pp. 1211–1212.) He sued the park owner for
renting to the gang members, for failing to hire guards, and for
failing to install brighter lights. (Id. at pp. 1216–1223.)
Our Supreme Court conducted a social utility analysis and
concluded Castaneda’s proposed tort duties were not worthwhile.
Creating a duty not to rent to gang members would be imposing
3
“a burdensome, dubiously effective and socially questionable
obligation on landlords, at least absent circumstances making
gang violence extraordinarily foreseeable.” (Castaneda, supra, 41
Cal.4th at p. 1217.) “Given the extraordinarily burdensome
nature of the duty plaintiff seeks to impose and its likely social
cost, we conclude much greater foreseeability than that
demonstrated here would be required to recognize the duty not to
rent housing to gang members.” (Id. at p. 1218.) Similarly, “a
shoot-out between two rival gangs was not highly foreseeable,
and [the park owner] did not have a tort duty to prevent it by
evicting the Levarios.” (Id. at p. 1222.) Concerning Castaneda’s
proposed duty that the park owner hire guards, “common
experience” suggested this “heavily burdensome” measure would
have been ineffective: it was unlikely to have deterred “Levario
from entertaining an individual guest inside his home.” (Id. at
pp. 1223, 1222.) As for brighter illumination, the Supreme Court
rejected this proposal “[g]iven that the occupants of the
mobilehome . . . were willing to engage in an armed confrontation
with rival gang members where lighting allowed their weapon to
be seen and themselves to be recognized . . . .” (Id. at p. 1223.)
That is, the possibility the shooters would be identified and
prosecuted was too dubious a safety incentive to place on the
park owner a brighter-illumination duty—whatever that actually
might mean.
In short, the Castaneda court decided the proposed safety
precautions were burdensome and not clearly cost-justified. This
approach follows Justice Traynor in spirit. It is familiar and
authoritative. (E.g., Kuciemba v. Victory Woodworks, Inc. (2023)
14 Cal.5th 993, 1025 [no duty of care when the social utility of the
activity is great and avoidance of injuries is socially burdensome]
4
(Kuciemba); Kesner v. Superior Court (2016) 1 Cal.5th 1132,
1150, 1153 [courts assign tort duty to ensure those best situated
to prevent injuries are incentivized to do so]; Morris v. De La
Torre (2005) 36 Cal.4th 260, 277–278 [proprietor’s duty to
patrons includes an obligation to call 911 about an ongoing
assault or to take similarly minimal safety measures]; Delgado v.
Trax Bar & Grill (2005) 36 Cal.4th 224, 238–250 [to protect
patron from crime, a tavern has the duty to take minimally
burdensome steps, but not costly security measures]; Parsons v.
Crown Disposal Co. (1997) 15 Cal.4th 456, 473–475 (Parsons)
[court determined duty by conducting a “social utility analysis”
that weighs the utility of proposed safety measures against their
burdens]; Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114,
123–124 [duty to protect arose because defendant “easily” could
have undertaken the proposed protective measure].)
Using this Traynor style of analysis, the Supreme Court
rejected a surveillance camera proposal in a different case. After
an unknown assailant assaulted her in a parking garage, the
plaintiff in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181 sued
the garage owner for failing to institute adequate security
precautions. The plaintiff faulted the garage because it did not
have working surveillance cameras. (Id. at p. 1189.) The
Supreme Court rejected this camera proposal because “it is
questionable whether plaintiff’s proposed measures would have
been effective to protect against the type of violent assault that
occurred here. . . . [S]urveillance cameras do not deter all crime
and criminals do not confine their activities to locations that are
untidy or unkempt. . . . [S]urveillance cameras may be
ineffectual to protect against crime unless there are employees
who are available to continuously monitor video transmissions
5
and respond effectively when suspicious or criminal behavior is
observed. . . . [A] requirement that owners . . . provide ‘adequate’
security monitoring through existing personnel would be vague
and impossible to define . . . .” (Id. at p. 1196.) The opinion
likewise noted “the substantial monetary and social costs
associated with the hiring of security guards.” (Id. at p. 1192, see
also p. 1195.)
In short, the Castaneda court reached the same conclusion
as the Sharon P. decision: the plaintiffs were proposing
burdensome safety measures that were not clearly cost-effective.
Both courts refused to impose those duties on the property
owners. Justice Traynor would have approved.
The same problems plague the Summerfields’ safety
proposals. Their proposals raise questions but offer no clear
answers about the balance of burdens and benefits. Would
cameras in parks save a single life? How deterred are shooters
by cameras in a park or elsewhere? If shooters are impulsive or
poor at considered analysis, they will not be thinking much about
cameras. And if a shooting is planned rationally, will not this
thoughtful and determined shooter merely shift the attack to
beyond the camera’s range? Will face masks, vandalism, and
spray paint over the cameras’ lens counteract their effectiveness?
And so on. The chain of questions is lengthy. Cascading
problems afflict the Summerfields’ camera idea.
Tort plaintiffs seeking to impose unprecedented tort duties
must make proposals that are specific as well as plainly cost-
effective. The proposals must be specific enough for common law
judges to size them up in a practical way. (Cf. Zelig v. County of
Los Angeles (2002) 27 Cal.4th 1112, 1140 (Zelig) [“plaintiffs are
unable to point to the manner in which the physical condition of
6
the property should have been altered to prevent the shooting”].)
And the cost-effectiveness must be obvious and intuitive, for
common law judges cannot use finely-calibrated quantitative
methods to calculate precise burdens and benefits.
To expand a bit on this last point, the Traynor burden-
balancing approach uses what fairly may be called cost-benefit
analysis, but it is not the quantitative analysis familiar to
economists and policy analysts: the estimation of figures in
dollars and cents on two sides of a ledger. Common law judges
use common sense, not numbers, to decide our cost-benefit
questions. For many reasons, we rarely have recourse to
quantitative data and numerical methods. Our weighing of
probable burdens and benefits unavoidably is qualitative, which
means proposals will fail unless their virtues are clear. And the
virtues of the proposals here are not.
Essentially the same analysis thus governs the
Summerfields’ dangerous conditions claim, which merely robes
their negligence count in a tort cloak of a different color. This
case is the opposite of Rowland v. Christian (1968) 69 Cal.2d 108,
where Nancy Christian knew the bathroom faucet handle in her
apartment was cracked and needed replacing. Christian invited
James Rowland to the apartment. Rowland said he was going to
the bathroom. The handle broke and cut Rowland when he tried
to use it. The court held Christian owed a duty to warn Rowland
of the faucet crack. (Id. at pp. 110–112.) It would have cost
Christian little to share her knowledge of the dangerous
condition with Rowland. The information would have allowed
Rowland to take suitable care. Imposing this safety duty on the
knowledgeable property possessor was socially rational, and
obviously so.
7
By contrast, in this case we can have no confidence the
burdensome measures the plaintiffs propose would be of practical
benefit in reducing the risk of harm.
This case thus is similar to Parsons. Darrell Parsons was
riding his horse on an urban bridle path when a truck noisily
lifted a nearby trash bin. The crashing sound made the horse
bolt; the frightened animal threw Parsons to the ground.
(Parsons, supra, 15 Cal.4th. at p. 462.) Parsons sued the trash
company. The Supreme Court ruled the company owed Parsons
no tort duty. The Supreme Court used a “social utility analysis”
to evaluate safety measures the trash company could have taken:
“changing the hours of collection, temporarily ‘blocking off’ the
area with warning cones or tape, posting warning signs,
providing riders with a schedule of collection times, or a
combination of these methods.” (Id. at p. 474.) The court rejected
Parsons’s proposals because they would increase “the burden on
machine operators over what was considered reasonable.” (Ibid.)
These precautions “unreasonably would impair the utility” of the
trash company, which ran a business “of high social utility.”
(Ibid.) And imposing these duties on the trash company would
imply similar restrictions on a wide “range of socially useful
activities that may produce such noises and provoke such fright.”
(Id. at pp. 474–475.)
In sum, this qualitative judicial cost-benefit analysis
showed the safety program Parsons proposed was not worth its
burden. (Cf. Zelig, supra, 27 Cal.4th at p. 1139 [“it does not
appear that the addition of a physical barrier, by itself, would
have had any effect on the risk of harm”].) There were no
mathematical calculations of quantitative data to reach this
conclusion. Common sense alone showed Parsons’s idea was bad.
8
Common sense also is apparent in Zelig, the main decision
the Summerfields cited in oral argument. In 1995, Eileen Zelig
was at a county courthouse seeking child support from her ex-
husband. In the courthouse, he shot her to death. “Lisa Zelig,
then six years of age, witnessed her father shoot her mother in
the chest at point-blank range.” (Zelig, supra, 27 Cal.4th at p.
1118.) The Zelig children sued the county for failing to install
gun screening with physical barriers and metal detectors.
The Supreme Court in Zelig ruled the county did not have a
tort duty to take these security measures.
The Zelig case posed common-sense questions like those in
this case. The murderous ex-husband was willing to kill in a
public place where nearby police made his immediate arrest a
certainty. Would gun screening at courthouses have been a cost-
effective safety measure against this heedless and homicidal
man? Or would gun screening merely have diverted him to the
sidewalk outside or to some other crime scene? (See Zelig, supra,27 Cal.4th at pp. 1139–1140.) Surely there would be some safety
benefit to gun screening, just as surely there would be some
safety benefit to installing cameras. But would the benefit offset
the sizeable cost? Maybe. But maybe is not certain enough.
When the certainty of the calculus is beyond the judicial ken,
courts say no and leave the issue to legislators or executives who
can weigh the available funds and the competing demands and
can answer “ ‘an allocative question best left to the political
branches.’ ” (See id. at p. 1127 [quoting Sklansky, The Private
Police, 46 UCLA L.Rev. 1165, 1282].)
Is it callous to discuss cost-benefit analysis when human
life is at risk? No, it is beneficial, rational, and objective. Courts
must analyze cases involving people like Andrew Summerfield, as
9
well as Eileen Zelig, whose six-year-old daughter looked on as she
was shot to death. Despite the distressing human trauma, we
are to remain attentive to legal doctrine. Courts are aware of the
human lives at stake, but empathy coexists with and cannot
supplant allegiance to the law. Public officials weigh dollar costs
against the risk of human injury every time they economize with
a flat rail crossing instead of a safer but more expensive overpass.
These tradeoff decisions are unavoidable. The public benefits
when they are rational.
Our result here is consistent with the Supreme Court’s
recent decision in Kuciemba, where the court held employers owe
no duty of care to prevent the spread of COVID-19 to employees’
household members. (Kuciemba, supra, 14 Cal.5th at p. 1033.)
The costs of this proposed duty seemed staggering, while the
benefits seemed doubtful. The court wrote “ ‘the pool of potential
plaintiffs isn’t a pool at all — it’s an ocean.’ ” (Id. at p. 1029,
quoting Ruiz v. ConAgra Foods Packaged Foods LLC (E.D.Wis.
2022) 606 F.Supp.3d 881, 888.) Imposing a duty to the household
members of employees had the potential to alter employers’
behavior in socially harmful ways. “[E]ven with perfect
implementation of best practices, the prospect of liability for
infections outside the workplace could encourage employers to
adopt precautions that unduly slow the delivery of essential
services to the public.” (Kuciemba, supra, 14 Cal.5th at p. 1028.)
And the benefits to such a duty were dubious, given that
employers “cannot fully control the risk of infection because many
precautions, such as mask wearing and social distancing, depend
upon the compliance of individual employees. Employers have
little to no control over the safety precautions taken by employees
or their household members outside the workplace. Nor can they
10
control whether a given employee will be aware of, or report,
disease exposure.” (Id. at pp. 1026–1027.) Facing a lopsided
social “calculus” (id. at p. 1025), the high court reached the same
conclusion we do: no duty.
The same style of analysis negates the Summerfields’
failure-to-warn idea. What assurance is there that their
proposal, if given force by tort law, would have any result besides
warning signs everywhere that everyone ignores? (Cf. O’Neil v.
Crane Co. (2012) 53 Cal.4th 335, 363 [when every firm must
warn everybody about everything, the costly exercise does no
good, for to warn of all potential dangers is to warn of nothing];
Hayes v. State of California (1974) 11 Cal.3d 469, 472–473 [it is
indisputable the public is aware of the incidence of violent crime,
so it would serve little purpose further to remind the public].)
The irresistible simplicity of preventing harm means courts
should impose tort duties on defendants when the expected safety
benefits outweigh the burden, but refrain when the burden
exceeds the expected benefits. This case fits the second category.
The trial court was right to sustain this demurrer.
WILEY, J.
11