Filed 6/30/22 Diaz v. City of L.A. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
SAMANTHA DIAZ, B312296
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No.
19STCV13193)
CITY OF LOS ANGELES et al.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Lia Martin, Judge. Affirmed.
Law Offices of Jude A. Akubuilo and Jude A. Akubuilo for
Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Scott Marcus, Senior
Assistant City Attorney, Blithe S. Bock, Managing Assistant City
Attorney, and Maureen M. Home, Deputy City Attorney for
Defendant and Respondent.
INTRODUCTION
Plaintiff and appellant Samantha Diaz sued the City of Los
Angeles (City), alleging she was attacked and injured by dogs
owned by a homeless man, Walter Underwood, while she was
walking on a City sidewalk.1 She alleged causes of action for
premises liability, negligence, and maintenance of nuisance on
public property. The trial court concluded Diaz failed to state
facts sufficient to allege a cause of action against the City, and
Diaz’s proposed amendments to the complaint could not cure the
defects. It therefore sustained the City’s demurrer, without leave
to amend, and dismissed the case.
Diaz appeals from the order of dismissal, contending the
trial court: (1) erred because her complaint contained allegations
sufficient to support each of her causes of action; and (2) abused
its discretion by denying her request for leave to amend the
complaint. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the operative complaint, Diaz alleges Underwood
acquired possession of “vicious dogs from the [City], through the
[City’s] adoption program on a date prior to the incident that is
the subject matter of this action.” “Underwood was known by [the
City] to be a homeless person, who resided on the [City’s] public
property where he kept the vicious dogs he owned and possessed,
following the adoption.”
In 2018, Diaz was “mauled by dangerous dogs kept
unrestrained on [City] property by . . . Underwood.” “[E]mployees
of the [City] failed to remove the dangerous dogs which they had
1 Diaz also sued Underwood. He is not a party to this appeal.
2
observed were tethered on City property in violation of Los
Angeles Municipal Code, Sections 53.70(A), and 53.70(D),[2]
knowing that the dogs created a dangerous condition on [City]
property.” Further, the City and its employees “knew from the
history of the dogs, that they were vicious dogs, at the time that
they gave [Underwood] the possession and ownership of the dogs
when they knew, or ought to have known that [Underwood] was
homeless and lived on public property owned by the [City].”
Following the incident, Diaz filed a complaint against
Underwood and the City for premises liability and negligence,
alleging a “dangerous condition existed on [City] property,
(dangerous dogs), which [City] employees knew or ought to have
known about.” In response, the City filed a demurrer on the
following grounds: (1) the first cause of action failed to allege
facts demonstrating a “dangerous condition” within the meaning
of Government Code section 8353 (the sole statutory basis for a
claim imposing liability on a public entity based on the condition
of public property); and (2) the second cause of action failed to
2 Los Angeles Municipal Code section 53.70, subdivision (A)
provides, in relevant part: “No person shall keep, use, or
maintain a dog outdoors on any premises unless the dog is either
provided with full access to an enclosed building, or if not
provided with such access, is provided with access to a dog house
or similar shelter at all times.” Subdivision (D) provides, in
relevant part: “It shall be unlawful for any person to
tether, . . . restrain or cause a dog to be . . . tied or restrained
to . . . trees . . . or highly immobile objects . . . for the purpose of
confinement,” except in certain circumstances.
3 All further undesignated statutory references are to the
Government Code.
3
allege the City employees were negligent, and therefore, the City
could not be held vicariously liable. The trial court sustained the
City’s demurrer with leave to amend.
Diaz subsequently filed a first amended complaint (FAC).
Diaz amended the first cause of action for premises liability by
adding an allegation that the City violated Los Angeles
Municipal Code section 53.70, subdivisions (A) and (D), which
allegedly created a dangerous condition on public property. With
respect to the negligence cause of action, Diaz alleged the City
was vicariously liable under section 815.2 based on its employees’
failure “to deny [Underwood] the privilege to acquire vicious dogs
without investigating whether he had an appropriate and safe
place to keep such types of pets.” Diaz also added a third cause of
action for maintenance of nuisance on public property, in which
she alleged the City “created or permitted a nuisance to exist” by
allowing “vicious dogs given by [City employees] to [Underwood]
to roam the public property, threatening and harming the
public . . . .”
The City filed a demurrer to the FAC, contending the
amendments did not cure the defects in the original complaint. In
opposition, Diaz contended the FAC sufficiently alleged a
dangerous condition on public property and the City negligently
“failed to act in a timely manner to impose strict measures to
assure the safety of the public.” Diaz also filed a supplemental
opposition arguing a new theory, i.e., that the dogs were obscured
by a pile of junk on the sidewalk.
The trial court sustained the demurrer to the FAC without
leave to amend. With respect to premises liability, the court held
the FAC did not “allege any defect in the sidewalk itself (or in
any other government property) but for the presence of a third
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party’s unrestrained dogs on a public sidewalk.” With respect to
negligence, the trial court held the FAC failed to allege a duty
owed to Diaz by City employees, an essential element of a
negligence cause of action. Finally, the trial court held the
nuisance claim failed as a matter of law because the FAC neither
alleged “statutory authority that employees had a duty to remove
the dogs” nor that the “City created or assisted in the creation of
the nuisance.” The court denied leave to amend, explaining that
adding allegations regarding a “pile of junk” cannot cure the
defects in the FAC: “The presence of the pile of junk on adjacent
property does not, by itself, establish that [Diaz] can amend the
complaint to allege the City has liability.”
The trial court entered an order dismissing the City from
the action. Diaz timely appealed from the order of dismissal.4
DISCUSSION
A. The Trial Court Did Not Err By Sustaining the City’s
Demurrer to the FAC
Diaz contends the FAC alleges facts sufficient to state
causes of action against the City for premises liability,
negligence, and maintenance of nuisance on public property for
injuries she sustained after being mauled by dogs on a sidewalk
owned by the City.
“In considering whether [a] demurrer should have been
sustained, we treat the demurrer as an admission by defendant[ ]
4 Although “[a]n order sustaining a demurrer without leave
to amend is not appealable,” an “appeal is proper . . . after entry
of a dismissal on such an order.” (Sisemore v. Master Financial,
Inc. (2007) 151 Cal.App.4th 1386, 1396.)
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of all material facts properly pled in plaintiff[’s] first amended
complaint—but not logical inferences, contentions, or conclusions
of fact or law. [Citation.]” (Winn v. Pioneer Medical Group, Inc.
(2016) 63 Cal.4th 148, 152.) “[W]e review the complaint de novo
to determine whether it contains sufficient facts to state a cause
of action.” (Czajkowski v. Haskell & White, LLP (2012) 208
Cal.App.4th 166, 173.)
1. Premises Liability
“The nature and extent of a public entity's liability for an
injury suffered on its property is governed by statute, specifically
the Government Claims Act.” (Metcalf v. County of San Joaquin
(2008) 42 Cal.4th 1121, 1129 (Metcalf).) “‘[A] public entity is not
liable for injuries except as provided by statute (§ 815) and . . .
section 835 sets out the exclusive conditions under which a public
entity is liable for injuries caused by’” the condition of public
property. (Metcalf, supra, 42 Cal.4th at p. 1129.)
Section 835 provides: “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
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 [defining
actual and constructive notice] a sufficient time prior to
the injury to have taken measures to protect against the
dangerous condition.”
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Section 830, subdivision (a) defines a dangerous condition
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.” “Although there need not be any physical defect in
property owned by a public entity, there must be something
about the physical condition of the property where an injury
occurred which increased the risk of harm to plaintiffs.” (Pekarek
v. City of San Diego (1994) 30 Cal.App.4th 909, 916, fn. omitted.)
Applying the above-stated principles, we conclude the FAC
fails to allege a “dangerous condition” within the meaning of
section 835. The FAC alleges the “dogs created a dangerous
condition on [City] property.” Paragraph 9 of the FAC also
inconsistently alleges the dogs were “unrestrained” and “tethered
on City property.” The dogs themselves, however, do not
constitute a “dangerous condition” of the sidewalk whether they
were “unrestrained” or “tethered.” (See Zelig v. County of Los
Angeles (2002) 27 Cal.4th 1112, 1135 (Zelig) [“[L]iability is
imposed [against the City] only when there is some defect in the
property itself and a causal connection is established between the
defect and the injury”].) Here, the FAC fails to allege a defect in
the sidewalk itself; rather, it alleges Diaz was mauled by
“dangerous dogs kept unrestrained on [City] property by
[Underwood]” or “tethered on City property.” A third party’s
negligence or unlawful conduct alone (i.e., Underwood’s failure to
restrain the dogs or tethering dogs to a tree in violation of the Los
Angeles Municipal Code) is insufficient to hold the City liable
under section 835. (See Zelig, supra, 27 Cal.4th at p. 1137
[“‘[T]here is no liability for injuries caused solely by acts of third
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parties. [Citations.] Such liability can arise only when third party
conduct is coupled with a defective condition of property.’
[Citation.]”].)
Moreover, the City’s alleged failure to remove and impound
dogs tethered to City property in violation of the Los Angeles
Municipal Code is irrelevant to whether a “dangerous condition”
existed on City property under section 835. As noted above, the
FAC fails to allege a physical condition of the sidewalk increased
Diaz’s risk of being harmed, but rather alleges the conduct of a
third party (i.e., Underwood’s failure to restrain the dogs) caused
her injuries.
Accordingly, we conclude the FAC fails to state a cause of
action against the City based on the alleged “dangerous
condition” of public property.5
2. Negligence
The FAC alleges the City is vicariously liable under section
815.2 for the “acts or omissions” of City employees. Under section
815.2, subdivision (a), a public entity is vicariously liable for the
tortious acts and omissions of its employees committed within the
scope of employment under circumstances in which the employee
would be personally liable for the conduct. “The elements of a
negligence cause of action are duty to use due care and breach of
duty, which proximately causes injury.” (Lopez v. City of Los
Angeles (2011) 196 Cal.App.4th 675, 685.) “Thus, in a cause of
action for negligence, the existence and extent of an entity’s
5 We note the FAC lumps allegations of negligence and
nuisance all under the heading of “premises lability.” We will
address those allegations below under the appropriate causes of
action.
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vicarious liability under [section 815.2, subdivision (a)], will be
determined by the scope of duty legally attributed to its
employees.” (Torsiello v. Oakland Unified School Dist. (1987) 197
Cal.App.3d 41, 45.)
“‘As a general rule one has no duty to control the conduct of
another, and no duty to warn those who may be endangered by
such conduct. [Citations.] A duty may arise, however, where “(a)
a special relation exists between the actor and the third person
which imposes a duty upon the actor to control the third person's
conduct, or (b) a special relation exists between the actor and the
other which gives the other a right to protection.” [Citations.]’”
(Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925,
933.) A special relationship exists “if and only if an injured
person demonstrates the public [employee] ‘assumed a duty
toward [her] greater than the duty owed to another member of
the public.’ [Citation].” (Walker v. County of Los Angeles (1987)
192 Cal.App.3d 1393, 1398-1399.) The special relationship rule is
“narrow, to be applied in a limited class of unusual cases.” (Minch
v. Department of California Highway Patrol (2006) 140
Cal.App.4th 895, 905.) California courts have found “special
relationships” to arise where: (1) public employees “‘create a
foreseeable peril, not readily discoverable by endangered
persons, . . . .’ [citation]; or, (2) public employees make a promise,
express or implied, they will undertake a special duty toward the
plaintiff. [citation]; or, (3) public employees cause an injured
person to rely to his detriment in a situation where that plaintiff
is dependent on the employees. [Citation.]” (Walker v. County of
Los Angeles (1987) 192 Cal.App.3d 1393, 1399.)
We conclude the FAC fails to allege a special relationship
between City employees and Diaz giving rise to a duty of care.
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The FAC alleges City employees breached their duty to Diaz by:
(1) failing to deny Underwood the privilege of acquiring
dangerous dogs without first investigating whether he had an
appropriate and safe place to keep them; (2) allowing Underwood
to keep the dogs on City property with knowledge the dogs were
dangerous and prone to attacking pedestrians; and (3) failing to
enforce applicable sections of the Los Angeles Municipal Code to
remove and impound the dogs from City property. Based on these
allegations, however, the City animal shelter employees did not
know Underwood would not, or could not, control the dogs (even if
they knew he was homeless). The City did not, therefore, “‘create
a foreseeable peril, not readily discoverable by endangered
persons.’” (Walker, supra, 192 Cal.App.3d at p. 1399, italics
omitted.) Further, the FAC does not allege Diaz had any contact
with City employees. Thus, it alleges no facts establishing the
City employees had undertaken special duties to protect Diaz or
done anything to induce Diaz to rely on a promise of special
protection. (See, e.g., Zelig, supra, 27 Cal.4th at pp. 1129-1130 [a
special relationship exists in limited circumstances where it is
alleged that “‘detrimental reliance by the plaintiff on the
[employee’s] conduct [or] statements made by [the
employee] . . . induced a false sense of security and thereby
worsened her position’” or a public employee “voluntarily
assumes a duty to provide a particular level of protection, and
then fails to do so”].) Finally, liability cannot be imposed on the
City for its alleged failure to enforce the Municipal Code.
(See § 818.2 [“A public entity is not liable for an injury caused . . .
by failing to enforce any law.”]; see also § 821 [“A public employee
is not liable for an injury caused . . . by his failure to enforce an
enactment.”].)
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We therefore conclude the allegations in the FAC do not
state a cause of action for negligence against the City.
3. Nuisance
Civil Code section 3479 defines nuisance as: “Anything
which is injurious to health, including, but not limited to, the
illegal sale of controlled substances, or is indecent or offensive to
the senses, or an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property, or
unlawfully obstructs the free passage or use, in the customary
manner, of any navigable lake, or river, bay, stream, canal, or
basin, or any public park, square, street, or highway . . . .”6
The FAC’s cause of action for nuisance merely incorporates
the allegations of the first and second causes of action, with the
addition of the following allegation: the City and its employees
“permitted a nuisance to exist on City property in that, they
allowed the vicious dogs given by them to [Underwood] to roam
the public property, threatening and harming the public, to wit,
the plaintiff in this action.” The nuisance cause of action,
therefore, relies entirely on facts asserted in support of the causes
of action for premises liability and negligence.7 Having concluded
6 Our Supreme Court has held the Government Claims Act
“does not bar nuisance actions against public entities to the
extent such actions are founded on section 3479 of the Civil Code
or other statutory provision that may be applicable.” (Nestle v.
City of Santa Monica (1972) 6 Cal.3d 920, 937.)
7 In her reply brief on appeal, Diaz concedes the nuisance
cause of action is “based on the factual allegations in the original
form complaint filed by [Diaz].” As stated above, the original
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those claims fail as a matter of law, we likewise conclude the
FAC fails to allege facts sufficient to state a cause of action for
nuisance. (See Melton v. Boustred (2010) 183 Cal.App.4th 521,
542 [“‘Where negligence and nuisance causes of action rely on the
same facts about lack of due care, the nuisance claim is a
negligence claim.’ [Citation.] The nuisance claim ‘stands or falls
with the determination of the negligence cause of action’ in such
cases”].)
In her reply brief on appeal, Diaz relies for the first time on
Leslie Salt Co. v. San Francisco Bay Conservation etc. Com.
(1984) 153 Cal.App.3d 605 (Leslie Salt) for the proposition that
the City may be held liable for public nuisance based on its
failure to act (i.e., failure to remove the dangerous dogs tethered
to a tree). The Leslie Salt holding, however, has no application to
this case. The Leslie Salt court considered “whether the McAteer-
Petris Act (Gov. Code, § 66600 et seq.), which created the San
Francisco Bay Conservation and Development Commission
(BCDC) and defines its jurisdiction and powers, allows BCDC to
hold a landowner responsible for unauthorized bay fill placed on
its property by unknown third persons.” (Leslie Salt, supra, 153
Cal.App.3d at pp. 608-609, fn. omitted.) Noting that under the
common law, “liability for a public nuisance may result from the
failure to act as well as from affirmative conduct[,]” the court held
that “if specific conduct . . . is proscribed by statute – as clearly it
is by the McAteer-Petris Act – then, consistent with the common
law rule, one may be held in violation of that statute” even if the
defendant did not know of or intend to cause harm. (Id. at p. 619.)
complaint only included causes of action for premises liability
and negligence.
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In contrast to Leslie Salt, here, no statute proscribes the conduct
at issue; as discussed above, no statute imposes a duty on the
City to warn Diaz about the dangerous dogs or mandates that the
City remove dogs tethered to trees.
B. The Trial Court Did Not Abuse Its Discretion By
Denying Diaz’s Request for Leave to Amend
Alternatively, Diaz contends the defects in the FAC can be
cured by amendment. We disagree.
“If the court sustained the demurrer without leave to
amend, as here, we must decide whether there is a reasonable
possibility the plaintiff could cure the defect with an amendment.
[Citation.] If we find that an amendment could cure the defect,
we conclude that the trial court abused its discretion and we
reverse; if not, no abuse of discretion has occurred. [Citation.] The
plaintiff has the burden of proving that an amendment would
cure the defect. [Citation.]” (Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081.)
Diaz contends she set forth additional facts to support a
second amended complaint in her supplemental opposition to the
City’s demurer, including that a “pile of junk” concealed the
dangerous dogs from Diaz’s view as she walked on the sidewalk.
She alleges the pile of junk constituted a dangerous condition
within the meaning of section 835. A pile of junk on City
property, however, does not sufficiently allege a “dangerous
condition” under section 835. Diaz has not alleged the City was
responsible for the pile of junk or that the City had actual or
constructive knowledge of it. (See § 835.)
We also reject Diaz’s contention that additional allegations
regarding the City’s “actual knowledge of the existence of the
dangerous condition of the dogs on public sidewalks” can cure the
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defects in the FAC. As discussed above, the dogs do not constitute
a “dangerous condition” of the sidewalk. And, even assuming the
City employees had actual knowledge the dogs were dangerous,
the employees had no duty to warn Diaz of Underwood’s alleged
negligent conduct of failing to restrain the dogs.
Because Diaz’s proposed amendments cannot cure the
defects in the FAC, the trial court did not abuse its discretion by
sustaining the demurrer without leave to amend.
DISPOSITION
The order of dismissal is affirmed. The City is awarded its
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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