City of L.A. v. Super. Ct.

Filed 3/18/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CITY OF LOS ANGELES, B308909
Petitioner, (Super. Ct. No. 20STCV08168)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent,
BARBARA WONG,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate.
Petition granted; alternative writ discharged. Daniel S. Murphy ,
Judge.
Office of the City Attorney, Michael N. Feuer, City
Attorney, Kathleen A. Kenealy, Chief Deputy City Attorney,
Scott Marcus, Blithe S. Bock and Shaun Dabby Jacobs, City
Attorneys for Petitioner.
No appearance for Respondent.
McNicholas & McNicholas, Matthew S. McNicholas,
Courtney C. McNicholas; Esner, Chang & Boyer, Stuart B. Esner
for Real Party in Interest.
INTRODUCTION
Plaintiff Barbara Wong alleges that her husband, Los
Angeles Police Department (LAPD) officer Franklin Chen,
contracted typhus from unsanitary conditions in and around the
Central Community Police Station where he worked. Wong
alleged that several months after Chen first became ill, she
contracted typhus as a result of sharing a living space with Chen.
Wong sued the City of Los Angeles, alleging negligence and a
dangerous condition of public property under Government Code
section 835.1
The City demurred to Wong’s complaint, asserting that
because Wong did not allege that she had contact with the
property at issue, the City did not owe Wong a duty of care with
respect to the condition of its property. The City also contended
it was immune from liability under section 855.4, which bars
claims relating to a “decision to perform or not to perform any act
to promote the public health of the community by preventing
disease or controlling the communication of disease within the
community.” (§ 855.4, subd. (a).) The trial court overruled the
City’s demurrer, and the City filed a petition for writ of mandate.
We issued an alternative writ, and now grant the City’s
petition. A public entity’s liability must be based on statute, and
section 835 does not extend liability to members of the public
whose alleged injuries do not arise from use of the property at
issue or any adjacent property. In addition, the immunity in
section 855.4 bars liability for decisions affecting public health.
1 All
further statutory references are to the Government
Code unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. First amended complaint
Wong filed her first amended complaint on July 15, 2020
alleging two causes of action: “liability for dangerous condition of
public property pursuant to Government Code § 835,” and
“negligence for personal injuries.” Wong alleged that her
husband, Franklin Chen, was an LAPD officer assigned to the
Central Community Police Station (Central Division). Wong
alleged that the “Central Division encompasses Bunker
Hill/Historic Core, Central City East, Chinatown, Civic Center,
City Hall, City Hall East, Downtown Los Angeles, Fashion
District, Jewelry District, Little Tokyo, Old Bank District, Solano
Canyon, South Park-Entertainment, and the Toy District
(collectively, the ‘Subject Premises’).” She asserted that “LAPD
Central Division officers, including Chen, are required to engage
and interact on a regular basis with the homeless population that
live[s] in downtown Los Angeles,” and “[t]he encampments of the
homeless population within Central Division are unsanitary,
unhygienic, unclean, rat-infested, and flea-infested.”
Wong further alleged that “Cal-OSHA has also deemed the
Central Division Police Station, located at 251 East 6th Street,
Los Angeles, CA 90014, as unsanitary, unhygienic, unclean, rat-
infested, flea-infested, and/or otherwise unfit to be occupied by
humans, including City and LAPD employees. Cal-OSHA issued
citations to the City of Los Angeles Police Department Central
Division and ordered the City to vacate and abate the unsanitary,
unhygienic, unclean, rat-infested, and flea-infested conditions on
the City’s property at 251 East 6th Street, Los Angeles, CA
90014.” “Despite the direction of Cal-OSHA, the City failed to
abate, maintain, upkeep, oversee, manage, repair, mend,
3
renovate, overhaul, clean, sanitize, disinfect, sterilize,
decontaminate, wash, and otherwise preserve the properties and
premises within Central Division, including, but not limited to,
Central Division Police Station where Chen was assigned to
work.”
Wong alleged that “[t]he accumulation of the waste and
lack of maintenance, upkeep, cleaning, and/or abatement of the
unsanitary and unhygienic conditions allowed the City premises
to become infested with rats and mice which carried fleas infected
with the typhus virus. The typhus-infected fleas continued to
spread to City properties and premises, including Central
Division Police Station and its surrounding areas where Chen
was assigned to work.” Wong alleged that Chen became ill in
spring 2019, and was diagnosed in June 2019 with typhus; she
alleged he contracted typhus while working on City property in
and around Central Division. Wong and Chen “resided in the
same house where they shared meals, bathrooms, and common
living areas and had ongoing physical contact with one another.”
In October 2019, Wong was also diagnosed with typhus, and
alleged that she “is informed and believes, and thereon alleges,
that she was infected with typhus as a result of the unsafe,
unsanitary, and dangerous conditions that existed on City
property.”
Wong alleged that the City “knew of the unsanitary
hazardous conditions at Central Division Police Station and in
the areas it served and permitted the conditions to remain
unabated and to increase in severity despite the threat to the
health, safety and welfare of Plaintiff.” The City had a duty to
“maintain, upkeep, oversee, manage, repair, mend, renovate,
overhaul, clean, sanitize, disinfect, sterilize, decontaminate, wash
4
and otherwise preserve the properties and premises within
Central Division, including, but not limited to, Central Division
Police Station,” and it breached that duty.
In the cause of action for dangerous condition of public
property, Wong alleged that the City “knew of the dangerous
condition (i.e., the unsanitary, unhygienic, rat-infested, and flea-
infested condition) of the Subject Premises,” knew or should have
known the dangerous condition would cause injury or death, but
failed to abate the dangerous condition. She asserted that
“[p]rior to Spring 2019, [the City] had actual and/or constructive
notice that the Subject Premises was the subject of a typhus
epidemic and that proactive conduct was required in order to
ensure safety.” Wong alleged that the City, “in violation of
California Government Code § 815.2, failed to exercise reasonable
care,” and “allowed the dangerous condition to remain in
violation of Government Code § 835, thus posing a hazard to
persons such as [Wong] who would foreseeably come in contact
with the typhus virus even when acting with due care.” She also
alleged that the City “failed to remedy the dangerous condition to
discharge [its] mandatory duty as required by Government Code
§ 815.6.” In her cause of action for negligence, Wong alleged that
the City negligently failed to maintain the subject premises,
causing injury to Wong.
Wong prayed for damages including general and special
damages, medical expenses, and costs.
B. Demurrer
The City demurred on the basis that it was immune from
liability relating to the control of disease under section 855.4;
Wong failed to allege facts sufficient to state a cause of action
5
because she did not allege a cognizable duty; and a public entity
may not be liable under common law theories of negligence.
The City asserted that it was immune from liability
because the “failure to keep public property germ and virus free
does not make the City subject to liability for [a] dangerous
condition of public property.” The City relied on section 855.4,
which provides that a public entity is not liable “for an injury
resulting from the decision to perform or not to perform any act
to promote the public health of the community by preventing
disease or controlling the communication of disease . . . if the
decision . . . was the result of the exercise of discretion vested in
the public entity . . . , whether or not such discretion be abused.”
(§ 855.4, subd. (a).) The City also cited Wright v. City of Los
Angeles (2001) 93 Cal.App.4th 683 (Wright), which we discuss
more fully below. In short, Wright held that under section 855.4,
a public entity could not be held liable for the presence of germs
or viruses on publicly owned property. The City argued that the
same reasoning barred Wong’s claims.
The City also contended that Wong’s cause of action for
dangerous condition of public property failed because she alleged
she contracted typhus from Chen in their home—not directly
from the allegedly dangerous property. The City argued that it
could not be liable for any injury occurring on private property.
The City further asserted that Wong failed to allege that
the City had a mandatory duty relating to the property, as
required under section 815.6. It asserted that any “citation” or
“order” from Cal-OSHA did not “impose a mandatory duty to
guarantee the safety of [Wong] or her husband.” Finally, the City
asserted that liability against a public entity must be based on
6
statute, but there was no statutory basis for Wong’s claim of
negligence.2
C. Opposition and reply
In her opposition, Wong asserted that immunity under
section 855.4 was not applicable. She argued that section 855.4
requires public health decisions to “be made in due care,” and
“once the decision has been made, there is no immunity from
liability for negligence in carrying it out.” She argued that the
City “did not act with due care in omitting to respond to Cal-
OSHA violations.”
Wong also argued that the City owed her a duty to provide
disease-free conditions of public properties, which was “a duty
separate and distinct from its duty as [Wong’s] husband’s
employer.” Wong rejected the City’s contention that it could not
be liable because Wong contracted typhus in her own home,
asserting that her illness was proximately caused by the
dangerous conditions of public property.
The City filed a reply reiterating its arguments from the
demurrer.
2The City further asserted that Wong’s claims were barred
by workers’ compensation exclusivity, which bars derivative
injury claims by non-employee third parties. The City requested
judicial notice of a workers’ compensation award to Chen,
acknowledging an illness that arose out of the scope of
employment and a lifetime disability of two percent. The City
asserted that the Workers’ Compensation Appeals Board had
exclusive jurisdiction of the matter. The City does not assert
these contentions on appeal.
7
D. Hearing and decision
The trial court issued a tentative ruling overruling the
demurrer. The court found that Wong’s claim of exposure to
typhus was similar to “take-home exposure” to asbestos discussed
in Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1140 (Kesner).
In that case, the Supreme Court held, “Where it is reasonably
foreseeable that workers, their clothing, or personal effects will
act as vectors carrying asbestos from the premises to household
members, employers have a duty to take reasonable care to
prevent this means of transmission.” In addressing the City’s
demurrer, the trial court found that Wong, “like the plaintiff in
Kesner, suffered a distinct and separate [injury] from her
husband, Chen.”
The court also found that the City was not immune under
section 855.4. The court noted that “[t]here is very little case law
concerning Government Code § 855.4.” The court quoted a
California Law Revision Commission comment stating, “Public
health officials and public entities should not be liable for
determining whether to impose quarantines or otherwise take
action to prevent or control the spread of disease, where they
have been given the legal power to determine whether or not
such action should be taken. Where the law gives a public
employee discretion to determine a course of conduct, liability
should not be based upon the exercise of that discretion in a
particular manner, for this would permit the trier of fact to
substitute its judgment as to how the discretion should have been
exercised for the judgment of the person to whom such discretion
was lawfully committed. But when a public official has a legal
duty to act in a particular manner, he should be liable for his
wrongful or negligent failure to perform the duty; and his
8
employing public entity should be liable if such failure occurs in
the scope of his employment.” (4 Cal. Law Rev. Comm. Reps. 801
(1963) pp. 830-831, [as of March 16, 2021], archived at
.)
The court stated that the City had a legal duty toward
Wong “[a]s set forth in Kesner,” and could be liable for any injury
caused by lack of due care under section 855.4, subdivision (b).
Because Wong “clearly alleges that [the City] negligently carried
out and/or failed to maintain a disease-free area in Central
Division,” the immunity in section 855.4 “does not apply.” The
court further found that the factual allegations of the first and
second causes of action were sufficient, and therefore stated that
it intended to overrule the demurrer.
At the hearing on the demurrer on September 21, 2020,
counsel for the City argued that the court’s tentative ruling was
erroneous in that it found that immunity under section 855.4 did
not apply. The court asked, “When does 855.4(b) – when does
that trigger? Because 855.4(b) specifically says the public entity
has to act with due care.” Counsel for the City asserted that
immunity must be broad, because if “the court finds liability, the
court is then exercising judgment on how the entity should have
exercised discretion, which is not proper.” Counsel for the City
also suggested that the court was “saying that the City did not
exercise . . . due care,” and the court responded, “I’m basically
saying there’s enough facts at this phase of the case. I’m not
inclined to dismiss it. [¶] I think either a summary judgment or a
trial is necessary.”
The court adopted its tentative ruling as the final order on
the demurrer. The City filed a petition for writ of mandate with
9
this court on November 19, 2020. We issued an alternative writ
requiring the superior court to vacate its ruling on the basis that
Wong’s complaint is barred by governmental immunity, or show
cause why a writ of mandate should not issue. Wong filed a
return asking that the demurrer ruling be upheld. The superior
court held a hearing on an order to show cause on January 28,
2021, but did not change its ruling.
DISCUSSION
The City asserts that the trial court erred in finding that
immunity did not bar Wong’s action. It asserts that it cannot be
liable for an allegedly dangerous condition of property with which
Wong had no contact, and that under section 855.4 it is immune
for allegedly failing to prevent Wong’s exposure to illness. Wong
asserts that direct contact with the dangerous condition on the
property was not required because the cause of her illness is
clear, and that governmental immunity is not evident from the
facts alleged in her complaint, so the demurrer was correctly
overruled.
Wong’s premises liability claim under section 835 and the
City’s immunity contention under section 855.4 arise from the
Government Claims Act, section 810, et seq. (the Act). “Enacted
in 1963, the Government Claims Act is a comprehensive
statutory scheme governing the liabilities and immunities of
public entities and public employees for torts.” (Quigley v.
Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 803.)
“The basic architecture of the Act is encapsulated in Government
Code section 815. Subdivision (a) of that section makes clear that
under the [Act], there is no such thing as common law tort
liability for public entities; a public entity is not liable for an
injury ‘[e]xcept as otherwise provided by statute.’” (Id. at p. 803,
10
citing § 815 and Guzman v. County of Monterey (2009) 46 Cal.4th
887, 897.) “But even when there are statutory grounds for
imposing liability, subdivision (b) of section 815 provides that a
public entity’s liability is ‘subject to any immunity of the public
entity provided by statute.’” (Quigley, supra, 7 Cal.5th at p. 804.)
Generally, we review a demurrer de novo, and “give the
complaint a reasonable interpretation, reading it as a whole and
its parts in their context. [Citation.] Further, we treat the
demurrer as admitting all material facts properly pleaded, but do
not assume the truth of contentions, deductions or conclusions of
law.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859,
865.) In addition, because “all governmental tort liability is
based on statute, the general rule that statutory causes of action
must be pleaded with particularity is applicable. Thus, ‘to state a
cause of action against a public entity, every fact material to the
existence of its statutory liability must be pleaded with
particularity.’” (Lopez v. Southern Cal. Rapid Transit Dist.
(1985) 40 Cal.3d 780, 795 (Lopez).)
A. Wong has not alleged a cognizable duty
Wong alleged causes of action for a dangerous condition of
public property and common law negligence due to the City’s
alleged failure to maintain the subject property. “The sole
statutory basis for imposing liability on public entities as
property owners is Government Code section 835.” (Cerna v. City
of Oakland (2008) 161 Cal.App.4th 1340, 1347.) Section 835
states, “Except as provided by statute, 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
11
dangerous condition created a reasonably foreseeable risk of the
kind of injury which was incurred, and that . . . [t]he 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, subd. (b).)
The City asserts that because Wong never visited the
property at issue, it owed no duty to Wong with respect to the
property and cannot be liable for her injuries.3 Wong accuses the
City of “mixing apples and oranges,” and asserts that duty is
irrelevant because she can prove her injuries were proximately
caused by the dangerous condition of the property.
We agree with the City that duty must be considered.
“When addressing the Act’s application, we have consistently
regarded actionable duty and statutory immunity as separate
issues, holding that in general, an immunity provision need not
even be considered until it is determined that a cause of action
would otherwise lie against the public employee or entity.”
(Caldwell v. Montoya (1995) 10 Cal.4th 972, 985 (Caldwell); see
3The City also contends that the trial court erred in finding
that the City and Wong were in a “special relationship” giving
rise to potential liability. This contention is somewhat
perplexing, because although the trial court found a duty, it did
not state that a special relationship existed. (See, e.g., Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607,
620-622 [discussing the features of a special relationship].) Wong
pointed this out in her return, but the City reiterates its
argument in its reply. Because the trial court did not conclude
that a special relationship existed and neither party suggests
that a special relationship exists here, we do not address the
City’s arguments on the issue.
12
also Creason v. Department of Health Services (1998) 18 Cal.4th
623, 630 [when considering liability under section 815.6, “the
question of possible statutory liability for breach of a mandatory
duty ordinarily should precede the question of statutory
immunity”].) We therefore consider the City’s contention that it
did not owe Wong a duty under section 835 because she never
visited the property at issue.
“Our fundamental task in interpreting a statute is to
determine the Legislature’s intent so as to effectuate the law’s
purpose. We first examine the statutory language, giving it a
plain and commonsense meaning. We do not examine that
language in isolation, but in the context of the statutory
framework as a whole in order to determine its scope and purpose
and to harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning
unless a literal interpretation would result in absurd
consequences the Legislature did not intend. If the statutory
language permits more than one reasonable interpretation,
courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.” (Coalition of Concerned
Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733,
737.)
Section 835 “imposes a duty on public entities not to
maintain property in a ‘dangerous condition.’” (Zelig v. County of
Los Angeles (2002) 27 Cal.4th 1112, 1134 (Zelig).) However,
section 835 does not expressly state to whom that duty is owed.
The City points out that authorities discussing dangerous
conditions of public property focus on either the “use” of the
property or harm to adjacent property. For example, a dangerous
condition of public property is defined as “a condition of property
13
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 Supreme Court has stated that “[p]ublic property is in a
dangerous condition within the meaning of section 835 if it ‘is
physically damaged, deteriorated, or defective in such a way as to
foreseeably endanger those using the property itself.’” (Cordova
v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105; quoting
Bonanno v. Central Contra Costa Transit Authority (2003) 30
Cal.4th 139, 148 (Bonanno).) The City asserts that Wong never
visited or “used” the property at issue, and there is no authority
supporting a finding of liability for a dangerous condition of
public property with which the plaintiff has had no contact.
Wong contends that physical contact with the property is
not required, because causation can be established nonetheless.
She asserts, “There is nothing in section 835 (nor any case
interpreting that section) negating liability if a dangerous
condition caused the plaintiff’s injuries just because the plaintiff
happened not to be on the government’s property when he or she
was injured.” She relies on cases such as Osborn v. City of
Whittier (1951) 103 Cal.App.2d 609 (Osborn), in which the
plaintiff alleged that the defendant city “maintained [a] rubbish
disposal dump in a dangerous condition, permitting the
continued burning of rubbish therein, under all weather
conditions, without supervision.” (Id. at p. 612.) “On June 22,
1949, a fire started in the rubbish disposal dump and spread
through and over surrounding property to plaintiff’s property,
burned and destroyed 248 avocado trees, full grown and bearing,
and the crops thereon, damaged the sprinkler system and fence
14
posts, and destroyed 750 tree props.” (Id. at p. 613.) The
defendant city argued that it could not be liable to the plaintiff,
because her property was located several miles from the dump
where the fire began.
The Court of Appeal, relying on “the Public Liability Act of
1923 and The Claims Act of 1931” (Osborn, supra, 103
Cal.App.2d at p. 613), rejected this contention. It found that the
fire could be deemed a proximate cause of the damage to the
plaintiff’s nearby property, because “[g]enerally, a fire, however
far it may go, is one continuous fire—the same fire—and is the
proximate cause of all the injuries and damage it may produce in
its destructive march, whether it goes to abutting property or
several miles.” (Id. at p. 618.) The court continued, “We hold,
therefore, that liability is not, as a matter of law, dependent upon
proximity of the damaged property to the dangerous condition,
but is dependent upon the dangerous condition being a proximate
cause of the damage, and that the question is one of fact.” (Ibid.)
More recent cases decided under the current Government
Claims Act have found that liability may be found where a
dangerous condition of public property causes personal injuries to
occur on an adjacent property. (See, e.g., Bonanno, supra, 30
Cal.4th at p. 151 [transit authority could be held liable when
pedestrians were injured on adjacent property while attempting
to reach bus stop in an allegedly dangerous location].) Similarly,
liability may be found when adjacent property creates a
dangerous condition on the subject public property. (See, e.g.,
Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 841
[liability may exist under section 835 when “a sign located on
property adjacent to a City intersection allegedly obstructed the
view and rendered the intersection dangerous”]; Bakity v. County
15
of Riverside (1970) 12 Cal.App.3d 24, 30 [dangerous condition
may exist where trees on private property obscured the view of
approaching vehicles at an intersection].) In these cases,
however, the plaintiffs have been injured on or near the public
property, while using or attempting to use the public property.
Even in Osborn, which was decided before the enactment of the
Government Claims Act, liability arose from the fact that the
dangerous condition escaped the public property and reached the
plaintiff’s nearby property. Wong cites no case, and we have
found none, finding liability under section 835 where the plaintiff
has had no physical contact with the dangerous condition on the
subject property or on any adjacent property.
Wong also contends that the trial court was correct to rely
on Kesner, supra, 1 Cal.5th 1132, to find that the City owed her a
duty of care for “take-home” exposure to typhus. In Kesner, the
Supreme Court found that “the duty of employers and premises
owners to exercise ordinary care in their use of asbestos includes
preventing exposure to asbestos carried by the bodies and
clothing of on-site workers. Where it is reasonably foreseeable
that workers, their clothing, or personal effects will act as vectors
carrying asbestos from the premises to household members,
employers have a duty to take reasonable care to prevent this
means of transmission.” (Id. at p. 1140.) The court relied on the
factors articulated in Rowland v. Christian (1968) 69 Cal.2d 108,
113 (Rowland) and Civil Code section 1714, subdivision (a),
which states in part, “Everyone is responsible, not only for the
result of his or her willful acts, but also for an injury occasioned
to another by his or her want of ordinary care or skill in the
management of his or her property or person.” (Kesner, supra, 1
Cal. 5th at p. 1143.) The court noted that “‘the general duty to
16
take ordinary care in the conduct of one’s activities’ applies to the
use of asbestos on an owner’s premises or in an employer’s
manufacturing processes,” and considered whether property
owners and employers should be liable to “individuals who were
exposed to asbestos by way of employees carrying it on their
clothes or person.” (Id. at p. 1144.)
Kesner involved two different plaintiff families. One
family, the Havers, asserted a premises liability claim,
contending that the wife, Lynne, developed mesothelioma as a
result of exposure to asbestos on the clothing of her husband,
Mike. (Kesner, supra, 1 Cal. 5th at p. 1158.) The defendant,
BNSF, asserted that such a claim could not lie where the
plaintiff’s “‘only connection to the property at issue is an
encounter with someone who visited the site.’” (Id. at p. 1159.)
The court rejected this argument: “Although this last statement
is superficially correct, it misconstrues the Havers’ theory of
negligence. It is not Lynne’s contact with Mike that allegedly
caused her mesothelioma, but rather Lynne’s contact with
asbestos fibers that BNSF used on its property.” (Ibid. [emphasis
in original].) The court noted that “liability for harm caused by
substances that escape an owner’s property is well established in
California law.” (Ibid., citing Sprecher v. Adamson Companies
(1981) 30 Cal.3d 358 [uphill landowner had a duty to correct or
control a landslide condition that damaged the adjacent downhill
home]; Davert v. Larson (1985) 163 Cal.App.3d 407 [landowner
could be held liable for an escaped horse that collided with the
plaintiffs’ car]; Curtis v. State of California ex rel. Dept. of
Transportation (1982) 128 Cal.App.3d 668 [upholding verdict
finding the state negligent in constructing defective fences that
permitted a cow to escape and create a dangerous condition by
17
entering a public highway].) The court held that because
“BNSF’s predecessors are alleged to have engaged in active
supervisory control and management of asbestos sources, the
Havers’ premises liability claim is subject to the same
requirements and same duty analysis that apply to a claim of
general negligence.” (Id. at p. 1161.)
Here, the trial court held, “In the case before this court,
plaintiff claims that she was exposed to typhus as a result of
take-home exposure from her husband’s work at the City of Los
Angeles police station and City buildings. As set forth in Kesner,
plaintiff may bring a take home exposure action against her
husband’s employer, the City of Los Angeles.” The court also
stated multiple times in its ruling that the City owed a duty to
Wong, “as set forth in Kesner.”
The City contends that the court’s reliance on Kesner was
inappropriate, in part because Kesner involved private companies
rather than public entities. We agree. The Supreme Court in
Kesner relied on Civil Code section 1714 and the Rowland factors,
but pursuant to the Act, liability for a public entity must be based
on statute. The Supreme Court has “declined to hold that ‘public
entity liability under [Government Code] section 835 is
coextensive with private liability for maintaining property in an
unsafe condition.’” (Vasilenko v. Grace Family Church (2017) 3
Cal.5th 1077, 1093, quoting Bonanno, supra, 30 Cal.4th at p.
152.) In Zelig, supra, 27 Cal.4th at p. 1132, another case
involving a claim of a dangerous condition of public property, the
Supreme Court stated, “To the extent the Court of Appeal
determined that the provisions of Civil Code section 1714
properly may be applied to extend the liability of a public entity
in this setting beyond the usual reach of the ‘dangerous condition’
18
provisions of Government Code section 835, we conclude that the
appellate court was in error. Such a determination by the court
ignores the general rule that the government does not, by
assuming responsibility for providing police services, impose
upon itself a legal duty that would give rise to civil liability.” And
the Supreme Court in Eastburn v. Regional Fire Protection
Authority (2003) 31 Cal.4th 1175, 1183, stated, “[D]irect 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.” Thus, the trial court erred in relying on Kesner’s
negligence analysis to find a duty on the part of the City, a public
entity.
In addition, the Supreme Court in Kesner pointed out that
the plaintiffs’ liability allegations were not premised on the wife’s
contact with the husband, but instead on the wife’s contact with
the hazardous condition from the defendant’s premises that had
been carried home on the husband’s clothing. Here, by contrast,
Wong has not alleged that Chen brought home infected fleas or
rodents, thus exposing Wong to the conditions of the property.
Instead, Wong alleges that she contracted typhus from Chen,
months after Chen first became ill. Thus, the basis for premises
liability the Supreme Court relied upon in Kesner—that a private
premises owner may be held liable for hazardous substances that
have escaped the property and caused harm offsite—is not
applicable here.
Thus, because Wong had no contact with the subject
property and she has not alleged exposure to any condition of the
subject property, Wong has not alleged facts to support a finding
that the City had a duty to her. The demurrer should have been
19
sustained on this basis. But even if the City had a duty toward
Wong, it was nevertheless immune from liability under section
855.4.
B. The City has immunity under section 855.4
“[T]he immunity of section 855.4 is applicable to causes of
action for alleged dangerous conditions of public property under
section 835.” (Wright, supra, 93 Cal.App.4th at p. 688.) This is
consistent with “[t]he Act’s purpose that specific immunities
should prevail over general rules of actionable duty.” (Caldwell,
supra, 10 Cal.4th at p. 985 [emphasis in original].)
Section 855.4 states in full:
“(a) Neither a public entity nor a public employee is liable
for an injury resulting from the decision to perform or not to
perform any act to promote the public health of the community by
preventing disease or controlling the communication of disease
within the community if the decision whether the act was or was
not to be performed was the result of the exercise of discretion
vested in the public entity or the public employee, whether or not
such discretion be abused.
“(b) Neither a public entity nor a public employee is liable
for an injury caused by an act or omission in carrying out with
due care a decision described in subdivision (a).”
By its plain language, section 855.4, subdivision (a)
immunizes any “decision” relating to the control of the
communication of disease that is “the result of the discretion
vested in the public entity.” Such a “decision” is immune,
“whether or not such discretion [was] abused.” Under subdivision
(b), immunity attaches to any act or omission performed while
carrying out such a decision, as long as the act or omission was
performed with due care.
20
This reading of section 855.4 is in accord with the
California Law Revision Commission cited by the trial court:
“Public health officials and public entities should not be liable for
determining whether to impose quarantines or otherwise take
action to prevent or control the spread of disease, where they
have been given the legal power to determine whether or not
such action should be taken. . . . But when a public official has a
legal duty to act in a particular manner, he should be liable for
his wrongful or negligent failure to perform the duty; and his
employing public entity should be liable if such failure occurs in
the scope of his employment.” (4 Cal. Law Rev. Comm. Reps.,
supra, at pp. 830-831, [as of March 16, 2021], archived at
.)
The City asserts that the trial court erred in finding that
section 855.4 did not provide governmental immunity for Wong’s
claims. The City relies on Wright, supra, 93 Cal.App.4th 683, the
only published case to analyze the application of that statute.4 In
Wright, the Wright family lived in a mobile home on property
4 One other published case briefly addressed the application
of section 855.4. In Sava v. Fuller (1967) 249 Cal.App.2d 281, a
state-employed botanist was hired to analyze a plant substance a
child may have ingested; the botanist incorrectly concluded that
the substance was toxic. The child’s parents sued, alleging that
the child died as a “proximate result of the incorrect analysis
because the treatment by the physician was thereafter based
upon the misinformation that ingestion of toxic materials rather
than bronchopneumonia was the child’s ailment.” (Id. at p. 283.)
The court rejected the botanist’s assertion of immunity under
section 855.4, finding simply that “[t]he acts charged here were
not within the purview of that section.” (Id. at p. 292.)
21
owned by the City of Los Angeles and leased to Inyo County. (Id.
at p. 685.) The property included “a municipal airport with
runways, terminals, parking and other miscellaneous related
structures, as well as an old, abandoned hospital building, a
pump house, a communications center, and several
mobilehomes.” (Ibid.) The abandoned hospital building was
“located between 60 and 100 yards from their home. Being in
such close proximity to her home, Misty, the Wrights’ daughter,
would often explore in and around the old hospital building and
she would remove some old records from that building. Shortly
after an excursion into the old hospital building in June 1999,
Misty contracted hantavirus pulmonary syndrome . . . and died
on June 21.” (Id. at pp. 685-686.) The Court of Appeal noted that
the “The hantavirus is spread via contact with infected deer mice
feces and dried urine.” (Id. at p. 686, fn. 2.) The Wrights sued
the City for wrongful death, and the trial court sustained the
City’s demurrer “on the ground that the [wrongful death] cause of
action failed to state facts sufficient to constitute a cause of action
in light of the immunity granted by section 855.4.” (Id. at pp.
686-687.)
The Court of Appeal affirmed. The court first rejected the
Wrights’ contention that section 855.4 was inapplicable to a cause
of action involving a dangerous condition of public property. The
court stated, “Utilizing the clear language in the statute, the
immunity of section 855.4 is applicable to causes of action for
alleged dangerous conditions of public property under section
835.” (Wright, supra, 93 Cal.App.4th at p. 688.) The court also
stated that sections 835 and 855.4, read together, “[make] it clear
that the immunity provided in section 855.4 prevails over the
liability established in section 835.” (Id. at p. 689.)
22
The court next held that 855.4 applies “‘where a public
entity’s substandard maintenance of public property is the sole
cause in fact of an individual[’]s exposure to and contraction of a
deadly disease.’” (Wright, supra, 93 Cal.App.4th at p. 689.) The
court quoted with approval the City’s argument that “‘[t]he
presence of germs, bacteria and viruses and the like, many of
which are microscopic, and which may or may not be contained in
saliva, animal droppings, or any multitude of other forms, upon
the vast public property of this state, cannot . . . be viewed as
liability events, without some specifically stated intent of the
[L]egislature.’” (Id. at p. 690 [alterations in Wright].) The court
added, “Although the Wrights argue that City is responsible for
maintaining a dangerous condition of property by failing to rid
the property of the virus-infected mice, the fact remains that the
property involved in this case included old, abandoned, buildings
that were not open to the public. Given that fact alone, City
should not be held liable for its ‘omissions relating to . . . the
prevention or control of’ the hantavirus.” (Ibid., quoting § 855.4,
subd. (a).)
The City asserts that “Wright compels the conclusion that
section 855.4 immunizes the City from Wong’s lawsuit.” It
argues that the cases are extremely similar in that both Wong
and the Wrights alleged illness spread by rodents, and lack of
action on the part of the City to maintain the property where the
infection occurred. We agree that much of the Wright court’s
reasoning is applicable here. As in Wright, Wong has alleged
infection from the presence of viruses in infected fleas on rodents
on City property, and that the City allowed the disease to spread
by failing to maintain the property adequately. Moreover, the
spread of hantavirus in Wright and the spread of typhus here fall
23
directly within the language of section 855.4 addressing the
“public health of the community by preventing disease or
controlling the communication of disease within the community.”
And we agree with the Wright court’s statement that section
855.4 applies “‘where a public entity’s substandard maintenance
of public property is the sole cause in fact of an individual[’]s
exposure to and contraction of a deadly disease.’” (Wright, supra,
93 Cal.App.4th at p. 689.)
The trial court dismissed the reasoning of Wright because
that case involved an abandoned building, and, “In the present
case, unlike the abandoned hospital building, Central Division
Police Station was not an abandoned building, closed off to the
public.” We disagree that this distinction is relevant. Nothing in
section 855.4 suggests that its application is limited to abandoned
buildings, and although the Wright court mentioned the building
was abandoned, that factor was not the basis for most of its
reasoning.
Wong asserts that Wright does not support the City’s
position, because “at no point did [the Wright court] analyze just
what a defendant must prove to establish an exercise of
discretion sufficient to trigger” section 855.4. She argues that
before a public entity defendant may assert section 855.4
immunity, it must show that there was “an exercise of discretion
sufficient to trigger the application” of section 855.4.
Wong relies on cases interpreting section 820.2, which
states in full, “Except 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.” Wong contends that because both section 855.4 and
24
section 820.2 include the language “was the result of the exercise
of the discretion vested in” the public employee or entity, we
should interpret section 855.4 similarly.
Section 820.2 codified a longstanding rule to ensure that
“‘public employees will continue to remain immune from liability
for their discretionary acts within the scope of their
employment.’” (Caldwell, supra, 10 Cal.4th at p. 980 [emphasis
added].) Thus, in determining whether immunity applies under
section 820.2, courts often attempt to “draw[ ] the line between
the immune ‘discretionary’ decision and the unprotected
ministerial act.” (Johnson v. State of California (1968) 69 Cal.2d
782, 793 (Johnson).) The Supreme Court has stated that “a
‘workable definition’ of immune discretionary acts draws the line
between ‘planning’ and ‘operational’ functions of government.
[Citation.] Immunity is reserved for those ‘basic policy decisions
[which have] . . . been [expressly] committed to coordinate
branches of government,’ and as to which judicial interference
would thus be ‘unseemly.’” (Caldwell, supra, 10 Cal.4th at p. 981,
quoting Johnson, supra, 69 Cal.2d at pp. 793-794 (italics in
Johnson).) On the other hand, “lower-level, or ‘ministerial,’
decisions that merely implement a basic policy already
formulated” are not immune under section 820.2. (Caldwell,
supra, 10 Cal.4th at p. 981; see also Elton v. County of Orange
(1970) 3 Cal.App.3d 1053, 1057 [“Immunity is not achieved
because the acts complained of are not ‘discretionary acts’ within
the meaning of” section 820.2]; Lopez, supra, 40 Cal.3d at p. 794
[“an individual bus driver’s decision concerning what form of
protective action to take in a particular case” was “the kind of
ministerial, ‘operational’ action . . . that is not immunized by
Government Code section 820.2.”].)
25
Although section 820.2 and 855.4 include similar language,
there are important differences between them. Section 820.2
addresses only public employees, while section 855.4 addresses
both public employees and public entities. In general, the Act
“establishes the basic rules that public entities are immune from
liability except as provided by statute (§ 815, subd. (a)), [and]
that public employees are liable for their torts except as otherwise
provided by statute (§ 820, subd. (a)).” (Caldwell, supra, 10
Cal.4th at p. 980 [emphasis in original].) In addition, section
820.2 addresses only the “act or omission” of a public employee,
while section 855.4 applies to a public employee’s or entity’s
“decision to perform or not to perform any act.” These
distinctions are relevant to the scope of liability, and as such we
find cases interpreting section 820.2 are not directly on point.
But even if we were to accept Wong’s contention that the
statutes should be treated similarly, we find no support for her
contention that the City was required to prove at the demurrer
stage that immunity applies. She argues that the demurrer
should have been overruled, because “there is nothing on the face
of [the] complaint establishing that either the condition of the
subject property generally or the transmission of typhus
specifically was the result of a consciously made exercise of
discretion as to a basic policy decision.”
However, “[s]ince all California governmental tort liability
flows from the California [Government] Claims Act [citations],
the plaintiff must plead facts sufficient to show his [or her] cause
of action lies outside the breadth of any applicable statutory
immunity. [Citations.] He [or she] must plead ‘with
particularity,’ ‘[e]very fact essential to the existence of statutory
liability.’” (Keyes v. Santa Clara Valley Water Dist. (1982) 128
26
Cal.App.3d 882, 885-886; see also Giannuzzi v. State of California
(1993) 17 Cal.App.4th 462, 467 [same]; Nealy v. County of Orange
(2020) 54 Cal.App.5th 594, 602 [same].) Thus, to allege a viable
cause of action against the City, Wong was required to allege
facts showing that the City’s actions did not fall within the
statutory immunity in section 855.4. She did not do so.
Section 855.4, subdivision (a) immunizes “the decision to
perform or not to perform any act to promote the public health of
the community by preventing disease or controlling the
communication of disease.” Wong’s allegations fall squarely
within this section. She alleged that the City had actual or
constructive notice that the property “was the subject of a typhus
epidemic and that proactive conduct was required in order to
ensure safety,” but the City “permitted the conditions to remain
unabated.” Any such “decision” on the part of the City falls under
the immunity in section 855.4, subdivision (a).
Wong did not allege that the City failed to comply with a
non-discretionary, ministerial duty. Although she alleged that
the City failed to comply with directives from Cal-OSHA, the City
points out that such a failure cannot serve as a basis for liability.
(See, e.g., Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th
52, 64 [although Labor Code section 6400, subdivision (b)
provides that Cal-OSHA may cite an employer for exposing
employees to a hazard, “this statute does not create civil liability
on the part of specified ‘employers’ to injured employees, for
breach of a nondelegable duty or otherwise”].) Wong does not
contradict this contention.
Wong alleged that the City “failed to remedy the dangerous
condition to discharge their mandatory duty as required by
Government Code § 815.6.” However, section 815.6 does not
27
impose any mandatory duty; it simply states that a public entity
may be liable if it fails to comply with an existing mandatory
duty.5 Wong has not identified any mandatory duties the City
violated with respect to its decisions relating to the spread of
typhus on City property. Thus, Wong has not alleged facts
sufficient to demonstrate that the City’s actions or omissions do
not constitute a “decision to perform or not perform any act” to
“control[ ] the communication of disease within the community”
which was within “the discretion vested in” the City.
Wong asserts that even if the immunity in section 855.4,
subdivision (a) applies, she alleged that the City “acted without
due care in implementing” its decision, and therefore the City’s
actions fall outside the immunity provisions in section 855.4,
subdivision (b). However, Wong did not allege facts in her
complaint that the City carried out any particular “act or
omission” without due care. To the contrary, she alleged that the
decision itself—to not abate the allegedly dangerous condition of
the property—was the cause of her injury. As such, Wong failed
to allege facts demonstrating that the immunity under section
855.4, subdivision (b) does not apply.6
5 Section 815.6 states in full, “Where a public entity is
under a mandatory duty imposed by an enactment that is
designed to protect against the risk of a particular kind of injury,
the public entity is liable for an injury of that kind proximately
caused by its failure to discharge the duty unless the public
entity establishes that it exercised reasonable diligence to
discharge the duty.”
6For the first time at oral argument, Wong requested leave
to amend her complaint to address any ambiguities in her
pleadings. An amendment would not change Wong’s basic
28
DISPOSITION
Let a peremptory writ of mandate issue directing the
respondent court to vacate its order overruling the City’s
demurrer, and enter a new order sustaining the demurrer. The
alternative writ is discharged. The City is entitled to recover its
costs in this original proceeding.
CERTIFIED FOR PUBLICATION
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
allegations against the City, however, or resolve the issues of
duty or immunity, which, as discussed herein, are fatal to her
causes of action. We therefore deny Wong’s request.
29