McCuistion v. Cnty. of Tulare

Decision Date16 February 2022
Docket NumberF080284
CourtCalifornia Court of Appeals Court of Appeals
PartiesJOHN MCCUISTION et al., Plaintiffs and Appellants, v. COUNTY OF TULARE, Defendant and Respondent.


APPEAL from a judgment of the Superior Court of Tulare County. No VCU276084 Bret D. Hillman, Judge.

Christopher Lionel Haberman for Plaintiffs and Appellants.

Deanne H. Peterson, County Counsel, Kathleen A. Taylor and Stephanie R. Smittle, Deputy County Counsel, for Defendant and Respondent.



Plaintiffs sued the County of Tulare (County) and others for personal injuries and wrongful death suffered in a traffic accident at an intersection next to an elementary school. Plaintiffs alleged County was liable for a dangerous condition of public property and negligence per se. County demurred, contending the intersection, which had no marked crosswalks and was controlled by a two-way stop, was not a dangerous condition when used with due care. (Gov. Code, § 830, subd. (a))[1] County also contended it was immune from liability for failing to provide additional regulatory and warnings signs pursuant to sections 830.4 and 830.8. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal.

Plaintiffs appealed, contending they properly alleged that the intersection's configuration as a two-way stop and its other characteristics qualified as a "concealed trap" or had invited public reliance. They also alleged County had actual notice of the intersection's dangerous condition because of 26 previous accidents, including one fatality. As to negligence per se, plaintiffs contend they adequately alleged County failed to mark the intersection with pedestrian crosswalks and warnings in violation of a mandatory duty imposed by Vehicle Code section 21368.

First, we conclude plaintiffs failed to allege physical damage, deterioration, or defects or other physical characteristics of the intersection that created a concealed trap or otherwise rendered it dangerous. Thus, they failed to state a cause of action based on a dangerous condition of public property. Second, based on the plain language of Vehicle Code section 21368, we conclude it does not create a mandatory duty to establish crosswalks near schools and, therefore, the negligence per se claim fails. Third, we conclude plaintiffs have not shown they could cure these defects if granted leave to amend.

We therefore affirm the judgment of dismissal.


Plaintiffs in this action are John McCuistion, Kimberly Parriera, and their minor sons, Jovani and Jayden. Plaintiffs assert claims individually and as successors in interest to Jayden, who died after the accident.

The defendants are County, Joe Garza, and Amelia Flores.[2] The car that struck McCuistion's vehicle was owned by Garza and was driven by Flores with Garza's permission.

The children attended Sundale Union Elementary School, which is located on the northwest corner of the intersection of Road 140 (Lovers Lane) and Avenue 240 (Prosperity Avenue) in an unincorporated area of County. The intersection of Lovers Lane and Prosperity Avenue was not an all-way stop, but rather a two-way stop. Vehicles traveling east and west on Prosperity Avenue were directed to stop at the intersection by signs, not lights. Northbound and southbound traffic on Lovers Lane were not directed to stop. County, the public entity that controls the intersection, posted "School Zone - 25 MPH" signs near the school. However, there were no pedestrian crosswalks and no "SLOW - SCHOOL XING" warning painted on Lovers Lane at the intersection.

Before the accident in this case, the intersection of Lovers Lane and Prosperity Avenue was the site of more than 26 automobile accidents in which 34 people were injured, one fatally. Based on this history, plaintiffs allege County had actual notice of the dangerous character of the intersection long before the accident involving plaintiffs.

Shortly after 6:30 a.m. on November 27, 2017, McCuistion was driving his sons to school, traveling northbound on Lovers Lane. The sun had not risen, the weather was rainy and overcast, and the roadway was wet. McCuistion stopped at the intersection and waited to make a left-hand turn onto westbound Prosperity Avenue. McCuistion yielded to Lovers Lane's southbound traffic and, once he perceived that traffic had cleared, began a left-hand turn across the southbound lane. He did not see Flores approaching the intersection in the southbound lane. She was driving a grey vehicle in excess of 65 miles per hour and without any headlights on. Before McCuistion's vehicle cleared the intersection, it was struck by Flores, knocked upside down, and propelled on its roof into a nearby irrigation canal.

McCuistion and his sons were injured in the collision. Jayden sustained severe head trauma, and died at Valley Children's Hospital on December 5, 2017, as a consequence of those injuries.

Following the accident, County's board of supervisors conducted a study of the collision history of the intersection. Based upon the study's findings, the board passed a resolution to reconfigure the intersection. It was converted to an all-way stop with "School Zone Ahead" flashing beacons on Lovers Lane. In addition, a no stopping zone was placed across the street from the elementary school on Prosperity Avenue.


In October 2018, plaintiffs filed their initial complaint against County, Flores, and Garza, alleging general negligence on the part of County in the design and maintenance of the intersection, as well as intentional tort, and negligence per se.

In July 2019, after multiple orders sustaining demurrers with leave to amend, plaintiffs filed a third amended complaint (TAC), the operative complaint in this appeal. The TAC alleged County was liable for general negligence and intentional tort due to the dangerous condition of the intersection and for negligence per se. The TAC alleged that the dangerous condition of the intersection was created by (1) the extensive traffic either travelling on Prosperity Avenue across Lovers Lane or turning onto Prosperity Avenue across traffic on Lovers Lane to pick up and drop off children at the school; (2) the failure to provide proper warnings, including a properly marked crosswalk across Lovers Lane; (3) the posting of a two-way stop at the intersection, which invited the public's reliance on same; and (4) the failure to warn the public of concealed dangers at the intersection, which dangers were evident from previous accidents at the intersection.

The TAC also alleged County owed a statutory duty of care to students of the elementary school and their parents to provide safe ingress and egress from the school grounds on County's roads. The TAC alleged this duty, codified in Vehicle Code section 21368, required school zone pedestrian crosswalks painted in yellow along with the warning, "SLOW SCHOOL XING."

In August 2019, County demurrered to the TAC. County asserted a dangerous condition had not been alleged with the requisite particularity and Vehicle Code section 21368 did not mandate the installation of a school pedestrian crosswalk on Lovers Lane.

In September 2019, the trial court sustained the demurrer without leave to amend. The court determined that the dangerous condition alleged in the TAC was limited to County's failure to provide sufficient regulatory traffic control signals and that no physical deficiency in the intersection was alleged. The court concluded that County was statutorily immune under sections 830.4 and 830.8 from liability for failure to erect stop signs and traffic signals at the intersection; any failure of County to provide signs or signals in and around the accident intersection did not constitute a "concealed trap" subjecting County to liability; and plaintiffs' "invited reliance" theory of liability was unsupported by allegations of a condition that caused the drivers to be unaware of each other or caused their misconduct as they drove through the intersection. The court also concluded that the plain language of Vehicle Code section 21368 did not create a mandatory duty to establish a marked pedestrian crosswalk at the intersection, which defeated the negligence per se theory of liability.

The trial court entered a judgment of dismissal based on its order sustaining County's demurrer to the TAC without leave to amend. Plaintiffs timely appealed.


When a general demurrer is sustained without leave to amend, this court applies two separate standards on appeal. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).)

First, we review the complaint de novo to determine whether it states facts sufficient to constitute a cause of action, which is a question of law. (Ibid.; Bichai v. Dignity Health (2021) 61 Cal.App.5th 869, 876 [whether facts alleged state a cause of action is a question of law].) We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig).) We treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. (Ibid.)

Second, the question of leave to amend requires us to "decide whether there is a reasonable possibility that the defect can be cured by amendment." (Blank, supra, 39 Cal.3d at p. 318.) If there is a reasonable probability of a cure, "the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm." (Ibid.)

Plaintiffs as appellants, bear the burden of demonstrating that the trial court erred in concluding no cause of action was stated...

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