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Court of Appeal:
City Not Liable for Unsanitary Conditions at Its Building
Applying Decisions in Wright and Wong, Appeals Court Affirms Los Angeles Superior Court Judge Crowley’s
Dismissal of Action Based on Former Deputy City Attorney Contracting Typhus at City Hall East
By a MetNews Staff Writer
A former Los Angeles deputy city attorney has failed in her effort to persuade the Court of Appeal for this district that a judge erred in sustaining a demurrer, without leave to amend, to her complaint alleging that she contracted typhus at City Hall East, where she had her office, due to unsanitary conditions.
Div. One on Monday affirmed a judgment of dismissal of the action brought by attorney Elizabeth L. Greenwood who, in her second amended complaint (“SAC”) alleged a cause of action against the city based on a dangerous condition of public property. She relied on Government Code §835 which provides for government liability where “the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.”
One of two alternative conditions that must be met is that the public entity had “actual or constructive notice of the dangerous condition” and had enough time before the injury to have remedied the problem.
Allegations of Pleading
Greenwood alleged in her pleading that “[s]ince approximately September 2018, there was a typhus epidemic in the downtown Los Angeles area, and the County of Los Angeles designated an area in downtown almost immediately adjacent to the Subject Property as the ‘Typhus Zone.’ ”
The SAC continues:
“Plaintiff is informed and believes that there was an accumulation of trash and other items at the and adjacent to the Subject Property that caused and contributed, to the outbreak of typhus. Plaintiff is further informed and believes that the City was aware of the dangerous condition of the Subject Property for a few months and therefore had actual or constructive notice of its condition and sufficient time to take action to protect against it, yet ignored this knowledge and failed to take measures to protect against this dangerous condition.”
Crowley Cites Statute
In sustaining a demurrer without leave to amend, Los Angeles Superior Court Judge Daniel M. Crowley found that the action was barred by Government Code §855.4 which provides:
“(a) Neither a public entity nor a public employee is 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 within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee, whether or not such discretion be abused.
“(b) Neither a public entity nor a public employee is liable for an injury caused by an act or omission in carrying out with due care a decision described in subdivision (a).”
Appellant’s Position
The appellant’s opening brief argues:
“While there is sparse case-law discussing this exercise of discretion in the context of section 855.4, there are numerous cases interpreting similar language contained in section 820.2 (providing for discretionary immunity generally) which was enacted at the same time as section 855.4. Under section 820.2, the law is clear that the discretion necessary to implicate discretionary immunity, such as that contained in section 855.4, concerns only basic policy decisions of the governmental entity consciously balancing risks and advantages of a particular course of action.
“On the face of Plaintiff’s complaint, it appears that the condition of the City premises which resulted in the transmission of typhus was not the result of any exercise of any discretion, let alone one that could be considered a basic policy decision.”
The brief explains:
“[T]here is nothing on the face of Plaintiff’s complaint establishing that either the condition of the subject property generally or the transmission of typhus specifically was the result of a consciously made exercise of discretion as to a basic policy decision. Indeed, nothing on the face of the complaint (which is what the City’s demurrer is limited to challenging) indicates that there was an exercise of discretion at all.”
Appeals Court Opinion
Div. One, in an opinion by Presiding Justice Frances Rothschild, expressed agreement with Crowley.
She concluded that the SAC reveals an exercise of discretion took place, rendering subd. (a) of §855.4 applicable. The presiding justice declared that “[n]either the statutory language nor case law interpreting it suggests a defendant must qualify for immunity under both section 855.4 subdivision (a) and section 855.4 subdivision (b) in order to be immune,” so that it did not matter whether Greenwood could show a lack of due care “as this is relevant only to immunity under subdivision (b).”
She noted that only two published Court of Appeal cases have discussed immunity under §855.4: Wright v. City of Los Angeles, which was decided in 2001 by the Fourth District’s Div. Two, and City of Los Angeles v. Superior Court (Wong), handed down in 2021 by this district’s Div. Four.
Decision in Wright
In Wright, an action was brought by the parents of a child who contracted a disease from rummaging in and around an old hospital building owned by the city, and died from the disease. Acting Presiding Justice Thomas E. Hollenhorst (now retired) wrote the opinion affirming a judgment of dismissal.
The parents argued that §855.4 is “clearly intended to apply in situations where a public entity acts in response to an outbreak of a disease which affects the community as a whole such as small pox or tuberculosis, not situations where a public entity’s substandard maintenance of public property is the sole cause in fact of an individual[’]s exposure to and contraction of a deadly disease.”
Hollenhorst merely adopted the city’s argument:
“[T]o hold that the immunity provided by...Section 855.4 is not applicable to public property would be to subject public health facilities and all other owners of any public property, improved or unimproved, to be sued for failure to adequately keep the facility or unimproved property germ, bacteria and virus-free. There is no showing that this was the intent of the [L]egislature in the statutory scheme of…Sections 835 and 855.4.
“The presence of germs, bacteria and viruses and the like, many of which are microscopic, and which may or may not be contained in saliva, animal droppings, or any multitude of other forms, upon the vast public property of this state, cannot...be viewed as liability events, without some specifically stated intent of the legislature.”
Nonliability in Wong
In Wong, plaintiff Barbara Wong was the wife of a Los Angeles police officer. He contracted typhus from unsanitary conditions at and surrounding the police station and she caught the disease from him.
Wong was represented on appeal by the law firms of McNicholas & McNicholas and Esner, Chang & Boyer—which also represented Greenwood in the appeal decided on Monday.
“We agree that much of the Wright court’s reasoning is applicable here, Justice Audrey B. Collins wrote in an opinion directing that a writ of mandate issue ordering the Los Angeles Superior Court to vacate its order overruling the city’s demurrer and to sustain the demurrer. Rejecting Judge Daniel S. Murphy’s view as to the limited scope of Wright, she said:
“Nothing in section 855.4 suggests that its application is limited to abandoned buildings, and although the Wright court mentioned the building was abandoned, that factor was not the basis for most of its reasoning.”
Rothschild said Crowley did not abuse his discretion in denying Greenwood leave to file a third amended complaint, explaining:
“[B]ecause we conclude that the SAC sufficiently alleges immunity under section 855.4, subdivision (a), additional allegations Greenwood represents she could add establishing that the City acted without due care as required by section 855.4, subdivision (b) would not defeat such immunity.”
Bendix’s Opinion
Justice Helen I. Bendix said in a concurring opinion:
“To the extent Wright v. City of Los Angeles…holds that Government Code1 section 855.4, subdivision (a) immunizes public entities from any disease-related injury occurring on public property, I question whether it was correctly decided. There is a difference between governmental response to an outbreak of disease, which clearly falls within the ambit of section 855.4, and a public entity’s responsibility to keep its facilities safe and sanitary.
“I nonetheless concur in the disposition of this case for two reasons. First, appellant has not challenged this particular holding in Wright; rather, her arguments focus on whether the City of Los Angeles (the City)’s alleged failure to maintain disease-free conditions on its property constituted a ‘decision’ that was ‘the result of the exercise of discretion vested in the public entity.’ (§ 855.4, subd. (a).) Accordingly, I would deem any challenge to Wright’s holding forfeited, and leave for another day whether it was correctly decided.
“Second, the allegations in the instant case fit comfortably within the scope of section 855.4 even if that section is read more narrowly to apply solely to governmental action or nonaction in response to outbreaks of disease. Appellant alleges, in essence, that the City insufficiently insulated its property from the effects of a typhus outbreak in the nearby area, thus allowing the disease to spread to appellant and, presumably, others. Put in terms of section 855.4, appellant alleges the City failed to ‘promote the public health of the community by preventing disease or controlling the communication of disease within the community.”
The case is Greenwood v. City of Los Angeles, 2023 S.O.S. 1189.
Attorneys for Greenwood were Matthew S. McNicholas, Douglas D. Winter, Jeffrey R. Lamb of McNicholas & McNicholas and Stuart B. Esner and Kathleen J. Becket of Esner, Chang & Boyer. Deputy City Attorney Shaun Dabby Jacobs represented the city.
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