Tentative Ruling: (1) CalTrans’ demurrer to the 5th COA is sustained without leave to amend.

(2) Kiewit’s demurrer to the 5th COA is sustained with 15 days leave to amend.

(3) LACMTA’s demurrer is sustained as to the 5th COA without leave to amend and as to the 3rd and 4th COAs with 15 days leave to amend.

In addition to the above, the Court grants Plaintiffs leave to amend to clearly indicate which COAs are asserted against which parties. CalTrans may respond to the Second Amended Complaint as appropriate.
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I. BACKGROUND
On 6/24/13, Plaintiffs Daniel Mehran Afshani and Mojdeh Sionit Afshani, individually and as trustees of the Afshani Revocable Family Trust dated 6/14/06, filed this action against various defendants arising out of the construction of a public project which has damaged Plaintiff’s property and removed barriers of access which invited the 2/7/12 burglary of Plaintiff’s property. After the Court sustained Defendant Kiewit Pacific Company’s demurrer on 11/15/13, Plaintiffs filed a First Amended Complaint on 12/2/13. Trial is set for 7/14/14; FSC for 6/19/14.

II. FACTUAL ALLEGATIONS OF THE FAC
Defendants have been constructing a public project including the relocation and reconstruction of on- and off-ramps to the Interstate 405-N (¶ 8) which has caused subsidence and other damages (caused by dust, noise, and vibrations) to Plaintiffs’ property (¶¶ 1, 9). Defendants’ activities relating to the project have also removed barriers of access to Plaintiffs’ property and left the project unsecured which resulted in the burglary of Plaintiffs’ property on 2/7/12. ¶¶ 10-12.

The FAC assert causes of action for (1) inverse condemnation, (2) trespass, (3) nuisance, (4) dangerous condition of public property, and (5) premises liability.

III. DEMURRERS
The People of the State of California, acting by and through the Department of Transportation (“CalTrans”); Kiewit Pacific Company; and the Los Angeles County Metropolitan Transportation Authority (“LACMTA”) demur to the FAC.

1. CalTrans
CalTrans demurs to the 5th COA on the ground that Plaintiffs fail to identify a statutory basis for the negligence claim. See Gov’t Code § 815(a); Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809. In opposition, Plaintiffs clarify that they are not bringing the 5th COA against CalTrans. Opp’n [CalTrans] p. 3:23-26. Therefore, CalTrans’ demurrer is sustained as to the 5th COA without leave to amend.

2. Kiewit
The Court previously sustained Kiewit’s demurrer to the 5th COA on two grounds. First, Plaintiffs failed to allege facts of misfeasance, ongoing direct involvement, or a special relationship to establish a duty owed to Plaintiffs. Melton v. Boustred (2010) 183 Cal.App.4th 521, 530-32; see also Ericson v. Federal Expresss Corp. (2008) 162 Cal.App.4th 1291, 1300 (stating the general principle that there is no duty to protect others from third-party criminal activity). Second, Plaintiffs failed to allege any facts concerning the foreseeability of risk from a third party. Melton, 183 Cal.App.4th at 532, 536-39. Kiewit argues that Plaintiffs’ allegations do not cure the deficiencies of the Complaint.

a. Factual Allegations as to Kiewit
There were three fences between the highway and Plaintiffs’ property: between Interstate 405 and Sepulveda Blvd., between Sepulveda Blvd. and a property owned by CalTrans or another of Defendants (“Sepulveda Property”), and between the Sepulveda Property and Plaintiffs’ property. FAC ¶ 35. These fences were constructed to control access to private property as stated in the CalTrans Highway Design Manual Index 701.1, 701.2, and 701.4, and Gov’t Code § 66478.4(b)(4). FAC ¶ 36. Additionally, these fences were erected because of prior incidents in which private property had been trespassed upon or been the subject of criminal actions by using access provided via a state highway. Id. ¶ 37. Kiewit removed the fences between the highway and the Sepulveda Property in February 2012 without notifying Plaintiffs. Id. ¶¶ 38-39. Kiewit could have maintained security by simple and low-cost means by leaving the fencing in place, erecting temporary construction fencing, or informing Plaintiffs. Id. ¶ 40.

b. Request for Judicial Notice
In connection with the demurrer, Kiewit requests judicial notice of the Court’s 11/15/13 ruling on its previous demurrer and of the pertinent portions of the CalTrans Highway Design Manual Index: the RJN is granted.

c. Merits
Kiewit argues that Plaintiffs’ allegations do not cure the deficiencies of the Complaint. The Court disagrees in part.

i. Misfeasance
As stated in the Court’s previous ruling on Kiewit’s demurrer, misfeasance requires active conduct that created or increased the risk of harm to Plaintiffs (i.e., the risk of a burglary occurring). Compare Melton, 183 Cal.App.4th at 533 (concluding that an invitation to a party which was to include alcohol consumption was not misfeasance as to a battery occurring at the party) with Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46-47 (concluding that a radio contest’s competition to be the first to physically locate a traveling automobile for a prize was misfeasance as to a negligent automobile accident caused by contest participants); see also Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 408 (distinguishing Weirum as concerning “ongoing direct involvement in the act that caused the accident and injuries”).

Plaintiffs’ new factual allegations consist of Kiewit removing fences that permitted unrestricted access to property adjacent to Plaintiffs’ property without notifying Plaintiffs or installing temporary fencing. Although these facts do not rise to the level of the “ongoing direct involvement” considered in Weirum, these facts are also greater than the mere party invitations as considered in Melton and Sakiyama. At the pleading stage, this is sufficient to allege active conduct by Kiewit that constitutes misfeasance.

ii. Reasonable Foreseeability
Plaintiffs’ new factual allegations also consist of the “simple and low-cost means” Kiewit could have maintained security. This supports a lessened degree of foreseeability. Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, 1097 (distinguishing between heightened and regular foreseeability depending on the degree of the burden of preventing the harm). However, Plaintiffs’ new factual allegations of prior criminal incidents in which access to private property via a state highway was used to trespass upon private property is insufficient to allege facts concerning the foreseeability of risk because Plaintiffs fail to allege that Kiewit knew of these prior criminal incidents (Melton, 183 Cal.App.4th at 536-38).

d. Ruling
Therefore, Kiewit’s demurrer is sustained as to the 5th COA with 15 days leave to amend.

3. LACMTA

a. 5th COA for Premises Liability
LACMTA demurs to the 5th COA on the ground that Plaintiffs fail to identify a statutory basis for the negligence claim. See Gov’t Code § 815(a); Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183 (finding insufficient the codification of common law principles of negligence in Civil Code § 1714). In opposition, Plaintiffs clarify that they are not bringing the 5th COA against LACMTA. Opp’n [LAMCTA] p. 8:22-26. Therefore, LACMTA’s demurrer is sustained as to the 5th COA without leave to amend.

b. 4th COA for Dangerous Condition
LACMTA demurs to the 4th COA on the ground that Plaintiffs fail to identify a dangerous condition of LACMTA’s property or allege facts of LACMTA’s notice thereof. See Gov’t Code § 835.

i. Dangerous Condition
A public entity may be liable if it maintained property in such a way so as to increase the risk of criminal activity or in such a way to create a reasonably foreseeable risk of criminal conduct. Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1134-35. However, there must be some defect in the property itself and a causal connection between the defect and the injury. Id. at 1135. The 4th COA is based on the removal of barriers on LACMTA’s property, consisting of the project and other property owned, controlled, or utilized in the project. FAC ¶¶ 10, 31. Plaintiffs allege that the removal of barriers created a reasonably foreseeable risk of third parties using LACMTA’s property to access and burglarize Plaintiffs’ property. Id. ¶¶ 11-12, 31, 33.

LACMTA argues that the absence of barriers has been rejected as a dangerous condition, citing Zelig. However, Zelig concerned a courthouse in which a woman was shot to death by her former husband. 27 Cal.4th at 1118. In rejecting that the courthouse had a dangerous condition, the Supreme Court noted that that the failure to erect barriers or to close off entrances to the courthouse would not have had any effect of the risk of crimes such as those that occurred in Zelig. Id. at 1137.

Unlike the disconnect between the alleged property defects and injury in Zelig, Plaintiffs’ action addresses the absence of barriers next to a public highway that permitted access to and the burglary of Plaintiffs’ property. At the pleading stage, this is sufficient to identify a defect and a causal connection.

ii. Notice
However, Gov’t Code § 835(b) requires a public entity to have actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. Plaintiffs fail to allege any facts supporting such notice. Indeed, Plaintiffs allege that the barriers were removed in February 2012 (see FAC ¶¶ 38) and that the burglary of Plaintiffs’ property occurred on 2/7/12 (see, e.g., id. ¶ 12).

LACMTA’s demurrer to the 4th COA is sustained on this ground.

iii. Reasonable Foreseeability
The Court notes that Gov’t Code § 835 also requires that the dangerous condition increase or create a risk that is reasonably foreseeable. Zelig, 27 Cal.4th at 1134-35. Although Plaintiffs argues foreseeability by citing to the allegations concerning Kiewit (FAC ¶ 36) and LACMTA replies that no facts are alleged as against LACMTA, the Court notes that LACMTA’s demurrer did not challenge the 4th COA as failing to allege facts concerning the foreseeability of the burglary of Plaintiffs’ property. Therefore, the Court does not consider the parties’ arguments as to reasonable foreseeability. Nevertheless, the Court directs the parties’ attention to the Court’s ruling on Kiewit’s demurrer for guidance.

c. 3rd COA for Nuisance
Preliminarily, the Court notes that Plaintiffs confusingly oppose LACMTA’s demurrer to the 3rd COA for nuisance asserting that it is a valid claim (see, e.g., Opp’n [LACMTA] p. 8:20) but later request leave to clarify that it does not assert this claim against LACMTA (id. p. 9:2-4). Notwithstanding these confusing statements, the Court will address the merits of LACMTA’s demurrer to the 3rd COA

LACMTA argues that the nuisance claim is barred by Civil Code § 3482 because the project is expressly authorized by statute (see Stats.2006, c. 1 (S.B.1026) § 1; Gov’t Code §§ 14000, 14001; Streets & Highways Code § 90 et seq.). See Dina v. People ex rel. Dept. of Transp. (2007) 151 Cal.App.4th 1029, 1052-53. In opposition, Plaintiffs argue that Civil Code § 3482 does not apply to the failure to erect temporary fencing or to notify Plaintiffs of the removal of barriers. See Friends of H. Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160-61.

However, as alleged, the FAC appears to only be based on the subsidence and other damages (caused by dust, noise, and vibrations) to Plaintiffs’ property. FAC ¶¶ 9, 16, 19-20, 25. Plaintiffs fail to allege that the 3rd COA is based on the failure to erect temporary fencing or to notify Plaintiffs of the removal of barriers. Indeed, neither party has addressed whether these facts would constitute a private nuisance. See, e.g., Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302-3.

Therefore, LACMTA’s demurrer to the 3rd COA is sustained.

d. Ruling
LACMTA’s demurrer is sustained as to the 5th COA without leave to amend, and is sustained as to the 3rd and 4th COAs with leave to amend.

IV. ADDITIONAL LEAVE TO AMEND
The Court notes that the FAC does not clearly indicate which COAs are asserted against which parties. This results in confusion as revealed by Plaintiffs’ oppositions and requests for leave to amend as well as CalTrans’ joinder. Therefore, in addition to the Court’s ruling on the demurrers, the Court grants Plaintiffs leave to amend to clearly indicate which COAs are asserted against which parties.