City of L. A. v. Superior Court of L. A. Cnty.

62 Cal.App.5th 129

276 Cal.Rptr.3d 332

CITY OF LOS ANGELES, Petitioner,

v.The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent,Barbara Wong, Real Party in Interest.

B308909

Court of Appeal, Second District, Division 4, California.

Filed March 18, 2021

Office of the City Attorney, Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Deputy City Attorney, Scott Marcus, Blithe S. Bock and Shaun Dabby Jacobs, City Attorneys for Petitioner.

No appearance for Respondent.

McNicholas & McNicholas, Matthew S. McNicholas, Los Angeles, Courtney C. McNicholas ; Esner, Chang & Boyer, Stuart B. Esner, Los Angeles, for Real Party in Interest.

COLLINS, J.

INTRODUCTION

Plaintiff Barbara Wong alleges that her husband, Los Angeles Police Department (LAPD) officer Franklin Chen, contracted typhus from unsanitary conditions in and around the Central Community Police Station where he worked. Wong alleged that several months after Chen first became ill, she contracted typhus as a result of sharing a living space with Chen. Wong sued the City of Los Angeles, alleging negligence and a dangerous condition of public property under Government Code section 835.¹

The City demurred to Wong's complaint, asserting that because Wong did not allege that she had contact with the property at issue, the City did not owe Wong a duty of care with respect to the condition of its property. The City also contended it was immune from liability under section 855.4, which bars claims relating to a "decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community." ( § 855.4, subd. (a).) The trial court overruled the City's demurrer, and the City filed a petition for writ of mandate.

We issued an alternative writ, and now grant the City's petition. A public entity's liability must be based on statute, and section 835 does not extend liability to members of the public whose alleged injuries do not arise from use of the property at issue or any adjacent property. In addition, the immunity in section 855.4 bars liability for decisions affecting public health.

FACTUAL AND PROCEDURAL BACKGROUND

A. First amended complaint

Wong filed her first amended complaint on July 15, 2020 alleging two causes of action: "liability for dangerous condition of public property pursuant to Government Code § 835," and "negligence for personal injuries." Wong alleged that her husband, Franklin Chen, was an LAPD officer assigned to the Central Community Police Station (Central Division). Wong alleged that the "Central Division encompasses Bunker Hill/Historic Core, Central City East, Chinatown, Civic Center, City Hall, City Hall East, Downtown Los Angeles, Fashion District, Jewelry District, Little Tokyo, Old Bank District, Solano Canyon, South Park-Entertainment, and the Toy District (collectively, the ‘Subject Premises’)." She asserted that "LAPD Central Division officers, including Chen, are required to engage and interact on a regular basis with the homeless population that live[s] in downtown Los Angeles," and "[t]he encampments of the homeless population within Central Division are unsanitary, unhygienic, unclean, rat-infested, and flea-infested."

Wong further alleged that "Cal-OSHA has also deemed the Central Division Police Station, located at 251 East 6th Street, Los Angeles, CA 90014, as unsanitary, unhygienic, unclean, rat-infested, flea-infested, and/or otherwise unfit to be occupied by humans, including City and LAPD employees. Cal-OSHA issued citations to the City of Los Angeles Police Department Central Division and ordered the City to vacate and abate the unsanitary, unhygienic, unclean, rat-infested, and flea-infested conditions on the City's property at 251 East 6th Street, Los Angeles, CA 90014." "Despite the direction of Cal-OSHA, the City failed to abate, maintain, upkeep, oversee, manage, repair, mend, renovate, overhaul, clean, sanitize, disinfect, sterilize, decontaminate, wash, and otherwise preserve the properties and premises within Central Division, including, but not limited to, Central Division Police Station where Chen was assigned to work."

Wong alleged that "[t]he accumulation of the waste and lack of maintenance, upkeep, cleaning, and/or abatement of the unsanitary and unhygienic conditions allowed the City premises to become infested with rats and mice which carried fleas infected with the typhus virus. The typhus-infected fleas continued to spread to City properties and premises, including Central Division Police Station and its surrounding areas where Chen was assigned to work." Wong alleged that Chen became ill in spring 2019, and was diagnosed in June 2019 with typhus ; she alleged he contracted typhus while working on City property in and around Central Division. Wong and Chen "resided in the same house where they shared meals, bathrooms, and common living areas and had ongoing physical contact with one another." In October 2019, Wong was also diagnosed with typhus, and alleged that she "is informed and believes, and thereon alleges, that she was infected with typhus as a result of the unsafe, unsanitary, and dangerous conditions that existed on City property."

Wong alleged that the City "knew of the unsanitary hazardous conditions at Central Division Police Station and in the areas it served and permitted the conditions to remain unabated and to increase in severity despite the threat to the health, safety and welfare of Plaintiff." The City had a duty to "maintain, upkeep, oversee, manage, repair, mend, renovate, overhaul, clean, sanitize, disinfect, sterilize, decontaminate, wash and otherwise preserve the properties and premises within Central Division, including, but not limited to, Central Division Police Station," and it breached that duty.

In the cause of action for dangerous condition of public property, Wong alleged that the City "knew of the dangerous condition (i.e., the unsanitary, unhygienic, rat-infested, and flea-infested condition) of the Subject Premises," knew or should have known the dangerous condition would cause injury or death, but failed to abate the dangerous condition. She asserted that "[p]rior to Spring 2019, [the City] had actual and/or constructive notice that the Subject Premises was the subject of a typhus epidemic and that proactive conduct was required in order to ensure safety."

Wong alleged that the City, "in violation of California Government Code § 815.2, failed to exercise reasonable care," and "allowed the dangerous condition to remain in violation of Government Code § 835, thus posing a hazard to persons such as [Wong] who would foreseeably come in contact with the typhus virus even when acting with due care." She also alleged that the City "failed to remedy the dangerous condition to discharge [its] mandatory duty as required by Government Code § 815.6." In her cause of action for negligence, Wong alleged that the City negligently failed to maintain the subject premises, causing injury to Wong.

Wong prayed for damages including general and special damages, medical expenses, and costs.

B. Demurrer

The City demurred on the basis that it was immune from liability relating to the control of disease under section 855.4 ; Wong failed to allege facts sufficient to state a cause of action because she did not allege a cognizable duty; and a public entity may not be liable under common law theories of negligence.

The City asserted that it was immune from liability because the "failure to keep public property germ and virus free does not make the City subject to liability for [a] dangerous condition of public property." The City relied on section 855.4, which provides that a public entity is not liable "for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease ... if the decision ... was the result of the exercise of discretion vested in the public entity ..., whether or not such discretion be abused." ( § 855.4, subd. (a).) The City also cited Wright v. City of Los Angeles (2001) 93 Cal.App.4th 683, 113 Cal.Rptr.2d 352 ( Wright ), which we discuss more fully below. In short, Wright held that under section 855.4, a public entity could not be held liable for the presence of germs or viruses on publicly owned property. The City argued that the same reasoning barred Wong's claims.

The City also contended that Wong's cause of action for dangerous condition of public property failed because she alleged she contracted typhus from Chen in their home—not directly from the allegedly dangerous property. The City argued that it could not be liable for any injury occurring on private property.

The City further asserted that Wong failed to allege that the City had a mandatory duty relating to the property, as required under section 815.6. It asserted that any "citation" or "order" from Cal-OSHA did not "impose a mandatory duty to guarantee the safety of [Wong] or her husband." Finally, the City asserted that liability against a public entity must be based on statute, but there was no statutory basis for Wong's claim of negligence.²

C. Opposition and reply

In her opposition, Wong asserted that immunity under section 855.4 was not applicable. She argued that section 855.4 requires public health decisions to "be made in due care," and "once the decision has been made, there is no immunity from liability for negligence in carrying it out." She argued that the City "did not act with due care in omitting to respond to Cal-OSHA violations."

Wong also argued that the City owed her a duty to provide disease-free conditions of public properties, which was "a duty separate and distinct from its duty as [Wong's] husband's employer." Wong rejected the City's contention that it could not be liable because Wong contracted typhus in her own home, asserting that her illness was proximately caused by the...