Case Name: Jomar Azarcon v. Milpitas Unified School District, et al.
Case No.: 17-CV-305604

Currently before the Court is the demurrer by defendant Palo Alto Unified High School District (“Palo Alto UHSD”) to the second amended complaint (“SAC”) of plaintiff Jomar Azarcon (“Plaintiff”).

Factual and Procedural Background

This is a personal injury action. (SAC, ¶ 19.) On May 5, 2016, Plaintiff, a student athlete on the Milpitas High School Track team, was injured at the De Anza League Track and Field Finals held at Los Gatos High School. (Id. at ¶¶ 19-20.) Other members of the De Anza Track and Field League (the “League”) that participated in the track and field event included Henry M. Gunn High School and Los Gatos High School. (SAC, ¶¶ 21 and 43.) Henry M. Gunn High School is a school facility operated by and under the management and control of Palo Alto UHSD. (Id. at ¶ 6.) Los Gatos High School is a school facility operated by and under the management and control of Los Gatos-Saratoga Union High School District. (Id. at ¶ 4.)

At the De Anza League Track and Field Finals, Plaintiff was participating in the shot-put event, which involved throwing a 12 pound metal sphere onto a V-shaped field known as the sector. (SAC, ¶ 22.) Abutting each side of the sector “is a required safety buffer zone (generally at least 10 feet wide) that must be kept clear of spectators and participants during the event.” (Ibid.) “Relevant rules and established custom and practice dictate that a qualifying throw can only be made when both the throwing sector and adjacent safety buffer zones are clear of any participants or spectators.” (Id. at ¶ 23.) Throwers and event officials are allegedly required to make sure no one is in either area before a throw is made. (Ibid.) Once a throw is completed, “only designated officials are permitted to retrieve the [metal sphere] from the … sector and safety buffer zone, and participating athletes should not be in said zones.” (Ibid.)

At the time of the incident, Plaintiff was standing in the buffer safety zone, bending down to pick up his metal sphere. (SAC, ¶ 25.) His body was “close to or straddling the line separating the … sector and buffer safety zone.” (Ibid.) Plaintiff was struck on the head by another metal sphere thrown by defendant Rick Wytmar (“Wytmar”), a student athlete from Henry M. Gunn High School. (Ibid.) As a result of the incident, Plaintiff suffered serious and permanent head injuries. (Id. at ¶ 27.)

Plaintiff alleges that the incident was not an inherent risk of the sport because “[he] had to enter the buffer safety zone to retrieve his shot implement, and once he had entered the buffer safety zone, another shot put throw should not have been permitted or taken, and [he] had no reason to assume or expect that he would be hit by another shot implement since relevant rules, regulations and custom dictate that another shot implement should not be thrown while he was in the throwing sector buffer safety zone.” (SAC, ¶ 26.)

Based on the foregoing allegations, Plaintiff filed the operative SAC against numerous defendants, including Wytmar and Palo Alto UHSD, alleging causes of action for: (1) negligence; (2) dangerous condition of public property; and (3) breach of duties under Government Code sections 815.2, 815.4, and 815.6. Only the second and third causes of action are alleged against Palo Alto UHSD.

On February 9, 2018, Palo Alto UHSD filed the instant demurrer to the SAC. Plaintiff filed papers in opposition to the demurrer on May 21, 2018. On May 29, 2018, Palo Alto UHSD filed a reply.

Discussion

Palo Alto UHSD demurs to the second and third causes of action of the SAC on the grounds of uncertainty and failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (e) and (f).)

I. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) However, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact.” (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.)

II. Uncertainty

Palo Alto UHSD demurs to the second and third causes of action of the SAC on the ground of uncertainty. But, its memorandum of points and authorities is devoid of any argument specifying an allegation in the SAC that it contends is uncertain, ambiguous, and/or unintelligible. Rather, Palo Alto UHSD’s arguments pertain to Plaintiff’s purported failure to allege sufficient facts to state a claim. It appears that Palo Alto UHSD misunderstands the nature of uncertainty as a ground for demurrer. The law is settled that “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations already made.” (Butler v. Sequiera (1950) 100 Cal.App.2d 143, 145-146.) The “failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809 overruled on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30.)

Accordingly, the demurrer on the ground of uncertainty is OVERRULED.

III. Failure to Allege Sufficient Facts to State a Claim

A. Second Cause of Action

In the second cause of action for dangerous condition of public property, Plaintiff alleges that Los Gatos-Saratoga Union High School District “owned, operated, designed, constructed, controlled, managed, and maintained that certain track and field venue, and the ‘shot-put’ area, and all areas thereof relevant to this [incident] ….” (SAC, ¶ 42.) Los Gatos-Saratoga Union High School District, Palo Alto UHSD, and Milpitas Unified High School District were members of the League. (Id. at ¶ 43.) The districts and the League were also members of the California Interscholastic Federation (“CIF”) and the Central Coast Section of the California Interscholastic Federation (“CCS/CIF”). (Ibid.) “CCS/CIF was, and has been, delegated authority by the state to govern, oversee and conduct high school interscholastic athletics in California” and it “conducts regional athletic events ….” (Id. at ¶ 44.) “CCS/CIF contracts with various people … ‘to work’ and host these events, including the De Anza League track and field finals, and, particularly, the De Anza League track and field finals conducted at Los Gatos High School on May 5, 2016.” (Id. at ¶ 45.) At all times, the districts and “CIF, CCS/CIF, [and defendant Santa Clara Valley Athletic League (‘SCVAL’)] were agents of each other and in doing or not doing the things and matters herein alleged, were acting as agents … for each other.” (Id. at ¶ 46.)

Plaintiff further alleges that the shot put venue “and surrounding environs” were in a dangerous condition at the time of the incident. (SAC, ¶ 47.) Specifically, the dangerous conditions were that: (1) “[t]he shot put throwing area had an insufficient safety or buffer zone and lacked sufficient barriers separating the throwing sector from the implement retrieval area”; (2) the shot put throwing area “was otherwise improperly designed and constructed with insufficient implement retrieval areas”; and (3) “[t]he shot put area had deficient field geometry that created a significant risk of harm and/or increased risk of harm that someone would be struck by an implement during the course of an event.” (Ibid.) The districts allegedly had knowledge of the dangerous conditions and knew or should have known of the dangerous conditions in sufficient time to have taken measures to protect against them. (Id. at ¶ 48.) The employees, agents, and contractors of the districts allegedly had the authority and responsibility to take adequate measures to protect against the dangerous conditions, but they failed to do so. (Id. at ¶¶ 49-50.)

As Palo Alto UHSD persuasively argues, these allegations are insufficient to state a claim for dangerous condition of public property against it because Plaintiff does not adequately allege facts showing that Palo Alto UHSD owned or controlled the subject public property.

It is well-established that “the public property upon which liability is based must be owned or controlled by the public entity at the time of the injury.” (Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383; see Aaitui v. Grande Properties (1994) 29 Cal.App.4th 1369, 1373 [“Government Code section 830, subdivision (c) provides that ‘ “[p]roperty of a public entity” and “public property” mean real or personal property owned or controlled by the public entity[.]’ ”]; see also Avey v. Santa Clara (1968) 257 Cal.App.2d 708, 712 [highway, with island in middle, was owned and controlled by state; summary judgment for defendant city and defendant county]; see also Petersen v. Vallejo (1968) 259 Cal.App.2d 757, 776 [property was, by reason of freeway agreement, in possession and control of state; summary judgment for city]; Tolan v. California (1979) 100 Cal.App.3d 980, 983 [state relinquished control and ownership of street to city].)

Here, only Los Gatos-Saratoga Union High School District is alleged to have owned and controlled the subject public property. (SAC, ¶ 42.) There are no factual allegations in the complaint demonstrating that Palo Alto UHSD owned or otherwise controlled the subject public property.

In opposition, Plaintiff asserts that Palo Alto UHSD controlled the public property because it was allegedly an agent of the other defendants. This argument is not well-taken as Plaintiff fails to explain why Palo Alto UHSD’s alleged status as an agent of the other defendants necessarily means that Palo Alto UHSD had control over the subject public property. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Plaintiff also contends that Palo Alto UHSD controlled the subject public property because it allegedly had the authority and responsibility to take adequate measures to protect against the dangerous conditions. This argument lacks merit. There are no factual allegations in the SAC showing that Palo Alto UHSD had any authority or responsibility to take steps to change the condition of the subject public property and statutory causes of action must be pleaded with particularity. (See Lopez v. Southern California Rapid Transit District (1985) 40 Cal.3d 780, 795 [the general rule in California is that statutory causes of action must be pleaded with particularity]; Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 790 [same].)

For this reason, the demurrer to the second cause of action on the ground of failure to allege sufficient facts to state a claim is SUSTAINED, with 10 days’ leave to amend.

B. Third Cause of Action

In the third cause of action for breach of duties under Government Code sections 815.2, 815.4, and 815.6, Plaintiff alleges that the districts, including Palo Alto UHSD, “were obligated to ensure that appropriate safety measures were taken to protect participants and spectators at the Event, and to properly hire, train and supervise all staff, contractors, employees and agents in the safe operation of the Event. (See e.g., Cal. Ed. Code §§ 35179 et seq. and 44807; Cal. Code Regs., tit. 5, § 5552 et seq. and the rules, regulations and bylaws of the California Interscholastic Federation and its sections, divisions and leagues.)” (SAC, ¶ 58.) The districts failed to comply with their obligations by: providing an inadequate number of experienced and properly trained personnel to conduct the shot put event; providing personnel who allowed the shot put event to proceed; providing inexperienced or inadequately trained personnel; providing personnel who did not retrieve Plaintiff’s metal sphere; and providing event personnel who “allowed an inadequate number of emergency medical personnel and stationed them an inadequate distance from the Event ….” (Id. at ¶ 59.) “These acts and omissions were improper and contrary to the mandatory supervisory duties imposed upon … defendants, their employees, agents and contractors, and constituted a reckless disregard for the rights and safety of [event] participants and spectators, all of which created a significant risk of harm, and/or increased the risk of harm that someone would be struck by an implement during the course of the shot put event.” (Id. at ¶ 60.)

Plaintiff further alleges that defendant Ronald Huynh (“Huynh”) was the employee and agent of Milpitas Unified School District and the agent of the other districts. (SAC, ¶ 61.) Huynh was allegedly in control of and running the shot put event. (Id. at ¶ 62.) Huynh knew or should have known of the dangerous condition of the subject public property; however, he improperly allowed student athletes to retrieve their own implements while other athletes were throwing. (Id. at ¶ 63.) Plaintiff alleges that Huynh “had a mandatory duty to provide reasonable safety instructions to participating student athletes as to the proper and safe practices of participating in the shot put even,” but failed to comply with his obligation. (Id. at ¶¶ 64-66.)

Thus, as alleged, Plaintiff seeks to hold the districts liable because: (1) the districts allegedly breached various mandatory duties that they owed to Plaintiff; (2) the districts employees, agents, contractors, officials, coaches, management, and track and field personnel did not comply with duties imposed on them; and (3) Huynh did not comply with his duty to provide reasonable safety instructions.

In its moving papers, Palo Alto UHSD attacks the third cause of action to the extent the claims is based on Government Code section 815.6 and its alleged breach of mandatory duties that it owed to Plaintiff. (Mem. Ps. & As., pp. 9:8-14:20.)

However, the third cause of action is also based on a theory of vicarious liability under Government Code sections 815.2 and 815.4 and allegations that Palo Alto UHSD’s employees, agents, contractors, officials, coaches, management, and track and field personnel did not comply with duties imposed on them, as individuals. This is a separate and distinct basis for the claim that does not turn on whether the statutes identified by Plaintiff in the SAC impose a mandatory duty on Palo Alto UHSD. Because Palo Alto UHSD does not address this alternative basis for liability in its moving papers, it fails to dispose of the third cause of action in its entirety. (See PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action.”].)

Accordingly, the demurrer to the third cause of action on the ground of failure to allege sufficient facts to state a claim is OVERRULED.