2018-00234097-CU-PO

Margarito Rodriguez vs. SMUD

Nature of Proceeding: Hearing on Demurrer

Filed By: Day, Corey M.

Defendant Sacramento Municipal Utility District’s demurrer to Plaintiffs Margarito Rodriguez’, et al.’s complaint is sustained with leave to amend.

Defendant’s request for judicial notice is granted.

This action arises out of injuries Plaintiff Margarito Rodriguez suffered when he was providing tree trimming services at Defendant’s property. Plaintiff Margarito Rodriguez was allegedly electrocuted when his tree trimming tool came into contact with a SMUD power line. Plaintiff Francisco Rodriguez, Margarito’s son witnessed the incident. Plaintiffs allege causes of action for negligence, premises liability, negligent infliction of emotional distress and loss of consortium.

With respect to the loss of consortium claim, it is alleged by Plaintiff Margarito’s spouse “Roe 1.” However, as Defendant points out, Margarito’s spouse Irma Rodriguez filed a petition for relief from Government Code § 945.4 so that she could file a late claim for loss of consortium. That petition was denied and she filed an appeal. While Irma Rodriguez is not specifically named in the loss of consortium cause of action, it is not disputed that “Roe 1” is intended to be Irma Rodriguez.

The Court will address the arguments in the order presented in Defendant’s moving papers.

Fifth Cause of Action (Loss of Consortium-Plaintiff Roe 1/Irma Rodriguez Only)

Defendant’s demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. “Failure to allege compliance or circumstances excusing compliance with the claim presentation requirement subjects a complaint to a general demurrer for failure to state facts sufficient to constitute a cause of action.” (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1245.) Here, Plaintiff has not alleged that she complied with the claim presentation requirement or that she was excused from compliance.

Plaintiffs’ opposition entirely fails to address Defendant’s argument. Rather, they argue that Roe 1 simply pled her cause of action to protect her rights as the statute of limitations was about to run and that Irma Rodriguez will be substituted in the place of Roe 1 in the event her appeal is granted and if her appeal is denied the cause of action will be removed. They then analyze joinder and argue that the failure to specifically name Irma Rodriguez is not a basis for demurrer and there is no prejudice in allowing the cause of action to proceed. Regardless of the merits of these points, they do not respond to the basis for the demurrer, specifically, that Plaintiff failed to allege compliance with the claim presentation requirement or that she was excused for doing so.

First and Fourth Causes of Action (Negligence and NIED)

Defendant’s demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. “A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute.” ( Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438.) In order to state a cause of action for public entity tort liability, “‘every fact essential to the existence of a statutory liability must be pleaded with particularity, including the existence of a statutory duty. [citations omitted]…Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 96.) Plaintiffs fail to identify any statute or enactment that provides for Defendant’s liability in this action. Rather the subject causes of action are premised on general negligence allegations. Public entity liability cannot be based on common law

negligence. (Van Kempen v. Hayward Area Park, Recreation and Park District (1972)

23 Cal.App.3d 822, 825.)

In opposition, Plaintiffs argue that they may bring a cause of action against a public utility pursuant to Public Utilities Code § 2106 and that Defendant had specific maintenance duties pursuant to General Order 95 of the California Public Utilities Commission. However, the complaint entirely fails to allege the specific statutory basis for Defendant’s liability. Plaintiffs ultimately concede this failure and request leave to amend these causes of action to set forth the statutory basis for Defendant’s liability.

Plaintiffs’ arguments regarding the sufficiency of the allegations of the elements of their NIED claim are not relevant. Again, the demurrer was simply based on the failure to identify a statutory basis for liability.

The demurrer is sustained with leave to amend.

Plaintiffs may file and serve an amended complaint no later than October 11, 2018. Defendant shall file and serve its response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP § 430.41 extension as necessary.

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

Item 14 2018-00234097-CU-PO

Margarito Rodriguez vs. SMUD

Nature of Proceeding: Hearing on Demurrer

Filed By: Erickson, David E.

Defendant Sabina Montero’s demurrer to Plaintiffs Margarito Rodriguez’s, et al.’s complaint is ruled upon as follows.

This action arises out of injuries Plaintiff Margarito Rodriguez suffered when he was providing tree trimming services at Defendant’s property. Plaintiff Margarito Rodriguez was allegedly electrocuted when his tree trimming tool came into contact with a SMUD power line. Plaintiff Francisco Rodriguez, Margarito’s son witnessed the incident. Defendant rented the property at the time. Plaintiffs allege causes of action for negligence, premises liability, negligent infliction of emotional distress and loss of consortium.

First Cause of Action (Negligence)

While Defendant appears to demur to this cause of action, it is only stated against SMUD. It is not asserted against Defendant. The Court issues no ruling on this cause of action.

Second Cause of Action (Premises Liability)

Defendant’s demur is overruled.

The elements of a premises liability are: (1) defendant owned, leased, occupied or controlled the property; (2) defendant was negligent in use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (CACI 1000)

Defendant argues that Plaintiffs fail to adequately allege control. To that end they rely on Hooker v. Dep’t. of Transp. (2002) 27 Cal.4th 198. Hooker provides that a hirer of an independent contractor is liable to an employee of a contractor only where the hirer retained control over safety conditions at the worksite and that control affirmatively contributed to the employee’s injuries. (Id. at 202.) Defendant argues that Plaintiffs failed to allege that she was in position to control the property because she rented the property at the time and Plaintiffs failed to allege what safety practices and conditions over which she retained control or how that control affirmatively contributed to their injuries. Here Plaintiffs alleged that Defendant “owned, leased, occupied, and/or controlled” the property. (Comp. ¶ 34.) This is an allegation of ultimate fact that must be accepted as true on demurrer. Questions of what degree of control Defendant retained are factual questions not properly resolved on a demurrer. Defendant’s reliance on Hooker and Alcaraz v. Varece (1997) 14 Cal.4th 1149 to argue to the contrary is not persuasive as those cases involved summary judgment motions and whether the plaintiff raised a triable issue of fact, and did not deal with pleading requirements.

Further, and though not addressed by either party, a landowner as a hirer may be liable to contractor’s employees even where it does not retain control over the work if “(1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 674-675.) Here, Plaintiffs alleged that Defendant knew or should have known that trees and other items were in close proximity to the power lines thus creating a dangerous condition, failed to properly maintain the property and failed to warn Plaintiffs of the improperly maintained power lines. (Comp. ¶¶ 36-41.) Though the complaint does not specifically allege that the power lines were concealed and that Mr. Margarito could not have discovered the power lines, liberally construing the complaint, allows for such an inference. Indeed, by alleging that Defendant knew of should have known that Plaintiffs would come into contact with the area near the allegedly improperly maintained power lines and that Defendant failed to warn them, it may reasonably be inferred from the allegations that the power lines were concealed and that Plaintiffs were not and could not reasonably ascertain the condition. The Court therefore rejects the argument that Plaintiffs failed to allege the first element of a premises liability cause of action.

Defendant next argues that Plaintiffs failed to allege she was negligent. Defendant argues that although the complaint is not clear if the power lines were concealed or obvious, in either case she owed no duty. To that end Defendant argues that if the power lines were open and obvious than she had no duty to warn. While Defendant argues that one engaged in tree-trimming services cannot seriously argue that the power lines were not open and obvious dangers, this is a factual question not appropriately resolved on demurrer. Defendant also argues that if the condition was concealed than she had no duty to warn because it was Mr. Margarito’s duty to inspect the area. “[T]he landowner would not be liable when the contractor has failed to engage in inspections of the premises implicitly or explicitly delegated to it…[I] nspection for such defects could reasonably be implied to be within the scope of the

contractor’s employment.” (Kinsman, supra, 37 Cal.4th at 677-678.) However, the question of whether Plaintiffs failed to engage in an inspection of the premises implicitly or expressly delegated to them and whether the alleged condition would or should have been discovered under such an inspection is a factual one not appropriately resolved on demurrer. Indeed, Kinsman involved a jury trial and in fact noted that even in a situation where the dangerous condition was within the object of the contractor’s work, the landowner would still be liable if the contractor did not know of the condition and could not reasonably have discovered it. (Id. at 677.)

The demurrer to the second cause of action is overruled.

Third, Fourth, and Fifth Causes of Action (Negligence, Negligent Infliction of Emotional Distress, and Loss of Consortium)

Defendant’s demurrer is overruled. Defendant simply argues that the arguments pertaining to the second cause of action for premises liability apply equally to these causes of action. Given that the demurrer to the second cause of action was overruled, the demurrer to the third, fourth, and fifth causes of action is overruled for the same reasons.

Defendant’s demurrer is overruled in its entirety.

Given that the Court sustained co-defendant SMUD’s demurrer with leave to amend, Defendant need not file and serve its answer until 10 days after Plaintiffs file and serve their amended complaint.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.