Holmes v. City of Oakland

• Decision Date: 25 March 1968
• Citation: 67 Cal.Rptr. 197,260 Cal.App.2d 378
• Court: California Court of Appeals Court of Appeals
• Parties: Monty HOLMES, a minor, by and through his Guardian ad Litem, Pearleane Holmes, Plaintiff and Appellant, v. The CITY OF OAKLAND, a municipal corporation, Defendant and Respondent. Civ. 24370.

Page 197

67 Cal.Rptr. 197

260 Cal.App.2d 378

Monty HOLMES, a minor, by and through his Guardian ad Litem, Pearleane Holmes, Plaintiff and Appellant, v. The CITY OF OAKLAND, a municipal corporation, Defendant and Respondent.

Civ. 24370.

Court of Appeal, First District, Division 1, California.

March 25, 1968.

Rehearing Denied April 17, 1968.

Hearing Denied May 22, 1968.

Arthur C. Zief, Raymond Glickman, San Francisco, for appellant.

Edward A. Goggin, City Atty., William C. Sharp, Deputy City Atty., Oakland, for respondent.

MOLINARI, Presiding Justice.

Plaintiff, a minor appearing by his guardian ad litem, filed a complaint purporting to allege four causes of action against the City of Oakland and other defendants for damages for personal injuries incurred when a Santa Fe railroad train ran over plaintiff, severing both of his legs. The court sustained with leave to amend the City's demurrer to all four causes of action on the ground that none of them stated a cause of action against the City. Plaintiff having declined to amend, the court entered judgment of dismissal in favor of the City, from which plaintiff appeals.

Plaintiff concedes that his claim of liability against the City is predicated solely upon Government Code section 835 ¹ which provides that a public entity is liable for injury caused by a dangerous condition of its property if the injury was proximately caused by the dangerous condition, the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred, and the City had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken protective measures. Section 830, subdivision (a) defines a dangerous condition as one creating a substantial risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

The complaint alleges essentially that the six-year-old plaintiff was run over by a Santa Fe train while a pedestrian on Lowell Street in Oakland on June 3, 1965. The 'first cause of action' alleges that the City owned a certain railroad right-of-way which it negligently maintained, operated, leased, and controlled so as to cause the said train to be negligently maintained, owned, operated and controlled by the Santa Fe Railroad Company. The 'second cause of action' contains the foregoing allegations and in addition alleges that Lowell Street is owned by the City; that the railroad tracks were located on the street in close proximity to a grammar school, a fact known to the City; that the City allowed trains to be operated on the street at or near the time students were dismissed from school; that many students, including plaintiff, crossed the tracks on their way home from school; that the students were attracted to and regularly played on or around the trains and railroad cars; that the City realized or should have realized this was a dangerous condition; that this attractive and dangerous condition could have been remedied by imposing restrictions on the operation of the trains, or by providing guards or other safeguards, at the time when children were on their way home from school; that although the City had knowledge of the dangerous condition, it failed to take any measures whatsoever to protect the children and that plaintiff while crossing Lowell Street on his way home from school was attracted to the train and railroad cars, causing him to be thrown under the wheels thereof.

The 'third cause of action,' which alleges that the City conducted classes in said grammar school, realleges essentially all of the foregoing allegations and alleges that the City knew or should have known that students of tender years would be attracted to the railroad tracks and that they regularly played thereon or upon the train and cars which were run on said tracks. Finally, the 'fourth cause of action' alleges all of the foregoing facts and alleges further that the City negligently failed to instruct or supervise plaintiff as to his conduct in returning home from said school.

In determining whether the trial court was justified in sustaining the demurrer we must ascertain whether the complaint states at least one cause of action. Our consideration of whether the subject complaint states one or more causes of action requires that we examine it in relation to certain well-defined rules. These are: 'A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice' (Weil v. Barthel, 45 Cal.2d 835, 837, 291 P.2d 30, 31; County of L. A. v. Security First Nat. Bank, 84 Cal.App.2d 575, 579, 191 P.2d 78); the material and issuable facts pleaded in the complaint must be regarded as true (Stigall v. City of Taft, 58 Cal.2d 565, 567--568, 25 Cal.Rptr. 441, 375 P.2d 289; Flores v. Arroyo, 56 Cal.2d 492, 497; Hauger v. Gates, 42 Cal.2d 752, 755, 269 P.2d 609); a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the complaint (Marin v. Jacuzzi, 224 Cal.App.2d 549, 552, 36 Cal.Rptr. 880; Howard v. City of Los Angeles, 143 Cal.App.2d 195, 197, 299 P.2d 294), or facts impossible in law (Griffin v. County of Colusa, 44 Cal.App.2d 915, 918, 113 P.2d 270), or allegations contrary to facts of which a court may take judicial knowledge. (Chavez v. Times-Mirror Co., 185 Cal. 20, 23, 195 P. 666; Griffin v. County of Colusa, supra, 44 Cal.App.2d at p. 918, 113 P.2d 270; American Distilling Co. v. Johnson, 132 Cal.App.2d 73, 77, 281 P.2d 598; Livermore v. Beal, 18 Cal.App.2d 535, 540, 64 P.2d 987.) We are also to be guided by the following basic principle: All that is necessary against a general demurrer is that, upon a consideration of all the facts stated, it appears that the plaintiff is entitled to Any judicial relief against the defendant, notwithstanding that the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged. (Gressley v. Williams, 193 Cal.App.2d 636, 639, 14 Cal.Rptr. 496; Hilltop Properties, Inc. v. State of California, 233 Cal.App.2d 349, 354, 43 Cal.Rptr. 605.)

Adverting to the instant complaint in the light of the foregoing principles we first conclude that it purports to state only one cause of action although stated differently in each of the four counts. The action seeks to enforce a single right allegedly violated by the City, the essence of the complaint being that the City had the duty of maintaining its property in a safe condition, that it owed this duty to plaintiff, and that it breached that duty. There is, therefore, an attempt to plead only one single cause of action, which, if it exists, arises under the provisions of section 835.

The first count does not state a cause of action because it not only fails to allege that the City maintained a 'dangerous condition as that term is defined in section 830, but also fails to allege that the condition alleged to exist created a reasonably foreseeable risk of the kind of injury that was incurred and neglects to allege that the City had actual or constructive notice of such condition.

A cause of action is stated, however, in the second and third counts. The only apparent difference between the allegations of these counts is that the second count predicates liability on a dangerous condition of the City's Own property while the third count bases liability on the theory that the City's own property was dangerous because a condition on Adjacent property exposed those using the public property to a substantial risk of injury.

Directing our attention, first, to the second count we note that plaintiff alleges that the City owns the railroad right-of-way. The City argues that the Santa Fe has a franchise from the City to run trains over and along Lowell Street and that, therefore, section 830, subdivision (c) is applicable. That section excepts from the definition of property of public entity 'easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.' Although the complaint does not allege facts which would invoke section 830, subdivision (c) by indicating that the City merely owns the underlying land and the railroad owns and controls an easement or franchise to lay tracks and operate trains thereon, regulations and enactments of the City which disclose the relationship between the City and the railroad and the legal status and nature of the subject right-of-way are matters which may be judicially noticed and read into the complaint. (Evid. Code, §§ 451 and 452; see South Shore Land Co. v. Petersen, 226 Cal.App.2d 725, 745--746, 38 Cal.Rptr. 392.) The record does not disclose that any such matter was properly noticed by the trial court or that an appropriate request therefor was made to such court under Evidence Code section 453. Accordingly, since section 459 of the Evidence Code provides authority for the reviewing court to exercise the same discretionary power to take judicial notice as is possessed by the trial court, we elected to invoke section 459 and requested the City to furnish us with pertinent information for the purpose of determining the propriety of taking judicial notice and the tenor of the matter to be noticed, and we afforded plaintiff the opportunity to meet such information.

Pursuant to said request we have been furnished with a certified copy of Ordinance No. 6457 C.M.S. of the City granting the Atchison, Topeka & Santa Fe Railroad Company a franchise to construct, maintain and operate a commercial railroad along and across various public streets in the City of Oakland. The geographical boundaries of the franchise are delineated in a print referred to in the ordinance, a copy of which...