2013-00146861-CU-PO

Lawrence Catlin vs. Isleton Chamber Of Commerce

Nature of Proceeding: Hearing on Demurrer

Filed By: Dehoff, Kevin J.

Filed By: Dehoff, Kevin J.

Defendant City of Isleton’s demurrer to Plaintiff Larry Catlin and David Silva’s first
amended complaint is sustained with leave to amend.

Plaintiffs assert causes of action against City for negligence and premises liability
based on allegations that City failed to provide private security for the 2011 Isleton
Cajun Festival, a for-profit event at which private security had been provided in the
past to reduce the risk of crime from attendees that consumed alcohol throughout the
day. Plaintiffs rented a sales booth at the festival and allege that the failure to provide
private security resulted in a “gang of violent youths to run[ning] wild” ultimately
attacking Plaintiffs.

First Cause of Action (Negligence)

City’s demurrer to the first cause of action is sustained with leave to amend for failure
to state facts sufficient to constitute a cause of action. City demurs on the basis that
Government Code § 845 immunizes public entities from claims based upon alleged
failures to provide police protection. That section provides that “[n]either a public entity
nor a public employee is liable for failure to establish a police department or otherwise
to provide police protection service or, if police protection service is provided, for
failure to provide sufficient police protection.” (Gov’t Code § 845.) Relevant authority
establishes that the section applies where public entities are sued for failing to provide
adequate police protection at special events such as fairs. (Stone v. State of California
(1980) 106 Cal.App.3d 924.)

Plaintiffs argue that governmental immunities such as the immunity provided for in
Section 845 do not apply where the public entity voluntarily assumes the duty. While
Plaintiffs set forth “eight reasons” why “City’s failure to hire private security is
actionable as a negligent performance of a voluntarily assumed duty,” each reason is
contingent upon the City actually assuming a duty to provide private security at the
Cajun Festival. However, no such allegations appear in the complaint. Indeed, while
Plaintiffs allege that in 2011 “unlike previous years, defendants failed to provide
security for the event despite knowledge that attendees at the festival would consume
alcohol all day,” they do not allege that the City agreed to provide security for the 2011
festival. They allege that they contracted with the City Chamber of Commerce “with
the understanding that security would be provided as it had in the past” though again,
they do not allege facts showing that the City agreed to provide security for the subject
festival. As pled, the first cause of action is barred by the immunity provided in
Government Code § 845.

The Court notes City’s reply argument that even assuming Plaintiffs could allege facts
showing it assumed some duty, any duty would not defeat immunity under
Government Code § 845 given that duty of care and immunity are separate doctrines
and there is no voluntary assumption exception to the immunity provided in § 845.
Here, the Court cannot evaluate whether the immunity in § 845 definitively applies to
allegations that have yet to be pled in a complaint demonstrating City owed a duty in
the first instance. “Conceptually, the question of the applicability of a statutory
immunity does not even arise until it is determined that a defendant otherwise owed a
duty of care to the plaintiff and thus would be liable in the absence of such
immunity.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202.) Any
immunity analysis addressed to allegations not yet pled in the complaint would be

premature and Plaintiffs should be given a chance to amend to state facts
demonstrating a duty against which such immunity claims can be evaluated,
otherwise, the Court would engage in an analysis that would result in the “immunity
cart [being] placed before the duty horse.” ( Williams v. State of California (1983) 34
Cal.3d 18, 22.)

Second Cause of Action (Premises Liability)

City’s demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. As with the first cause of action, City argues that the
second cause of action is precluded by Government Code § 845. The Court agrees as
the factual basis for this cause of action is essentially identical to the first as Plaintiffs
allege that City created a dangerous condition of property as “unlike previous years,
defendants failed to provide security for the event despite knowledge that attendees at
the festival would consume alcohol all day.” Again, however, they have not alleged
facts demonstrating that City voluntarily undertook such a duty to provide private
security.

Further, the cause of action is deficient because Plaintiffs alleged that the property was
rendered more dangerous as a result of third parties, specifically, a “gang of violent
youths” being allowed to “run wild” due to the absence of private security. Thus, they
have alleged that the actions of third parties were the danger, not the public property.
As seen from relevant case law, actions of third parties by themselves do not render
th
property dangerous. (Zelig v. County of Los Angeles (2002), 27 Cal.4 1112, 1135.)
“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
th
Diego (1994) 30 Cal.App.4 909, 916 [emphasis added].) “We reiterate, moreover, the
limitation we stated in Zelig: public liability lies under section 835 only when a feature
of the public property has ‘increased or intensified’ the danger to users from third party
th
conduct.” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4 139,
155.) Here, Plaintiffs have not alleged any facts with respect to the actual property
itself which “increased or intensified” the danger to them from third parties. Rather,
they allege only that the failure to provide security allowed third parties to injure them.

Plaintiffs’ argument that they have stated a premises liability causes of action simply
because they alleged that City negligently “owned, managed and controlled” the
property is not correct. The authority cited by Plaintiffs involved a pleading which did
not simply allege that a public entity “owned, managed, and controlled” property, but
included allegations that the public entity created a dangerous condition of property
because the “thick and untrimmed foliage and trees around the parking lot and
stairway permitted the assailant to perpetuate his crime.” (Peterson v. San Francisco
Community College Dist. (1984) 36 Cal.3d 799, 812.) Thus, unlike Plaintiffs complaint,
the cited authority dealt with a pleading that included facts showing how a feature of
the public property increased a risk of injury from third parties.

The demurrer to the second cause of action is therefore sustained with leave to
amend.

As this is the first challenge to the complaint, leave to amend is granted. Plaintiffs may
file and serve an amended complaint no later than December 16, 2013. Defendant
shall file and serve its response within 10 days thereafter, 15 days if the amended

complaint is served by mail. (Although not required by any statute or rule of court,
Plaintiffs are requested to attach a copy of the instant minute order to the amended
complaint to facilitate the filing of the pleading.)

This minute order is effective immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.