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Court of Appeal:
Existence of Homeless Encampment Near Beach Is Not ‘Dangerous Condition’ of Public Property
Opinion Says Plaintiffs Failed to Adequately Plead Facts to Justify Holding County Liable for Attack Even Though Perpetrator Had Previously Been Asked to Leave Area
By a MetNews Staff Writer
Div. Five of this district’s Court of Appeal has found that a complaint filed against the County, by a father who was attacked by a homeless man wielding a machete at a Malibu beach, was properly dismissed because the pleading failed to allege facts showing that the existence of an encampment near a path to the public restroom was a “dangerous condition” as required to impose liability on a locality.
At issue is whether the plaintiff’s pleading sufficiently alleges facts to trigger Government Code §835, which provides:
“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if 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, and that either:
“(a) A negligent or wrongful act or omission of an employee …created the dangerous condition; or
“(b) The public entity had actual or constructive notice of the dangerous condition…a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
In an unpublished opinion, filed Tuesday and written by Justice Carl H. Moor, the court said:
“Even were we to accept the proposition that County had the ability to remove the encampment before the attack (given that it did so after [the perpetrator] had been taken into custody), that does not demonstrate that the encampment itself was a dangerous condition. Plaintiffs do not sufficiently plead a claim for dangerous condition of public property simply based on the machete attack coupled with the existence of the encampment. They need to do more than presuppose that the encampment was dangerous and then fault the County for not removing it.”
Attack on Father
According to the complaint, the attack occurred on Aug. 29, 2021, when Cuauhtemoc Perez was returning to the beach from the restroom with his children across a well-worn path. Perez noticed rocks were being thrown toward the group from nearby bushes, and he yelled, “Stop that, you’re going to hit the kids!”
Perez says a homeless man named Richard Franck jumped out from behind the shrubbery with a machete and struck him, causing serious injuries. In the operative pleading, Perez details ten purported interactions in the months leading up to the incident between Los Angeles County Sheriff’s Department employees and Franck at an encampment in the area.
During some of these encounters, Perez says that Franck was ordered to leave the encampment and had at least once acted violently by pulling a knife on a deputy. In his operative complaint, Perez alleged:
“Plaintiffs are informed and believe, and thereon allege, that the County knew that Franck and his companion had established their residence on the Beach, that they had at least one dangerous and lethal weapon stored in the encampment, that they had a long history of violently attacking beach goers claiming that portion of the Beach belonged to them, that the placement of the encampment adjacent to the well-worn path constituted a danger which could be remedied by removing the illegal encampment, and that there was a high likelihood that unsuspecting beach-goers who traversed the well-worn path to the restroom would be attacked and suffer serious injury due to the continued existence of the dangerous condition.”
On behalf of himself and his children, Perez asserted causes of action for premises liability, willful failure to warn, and loss of consortium.
Los Angeles Superior Court Judge Lisa R. Jaskol granted the county’s demurrer to the second amended complaint, without leave to amend, noting that the plaintiffs had failed to cure deficiencies present in earlier pleadings.
Tuesday’s opinion, joined in by Presiding Justice Brian M. Hoffstadt and Justice Lamar Baker, affirms the ensuing defense judgment.
Dangerous Condition
Moor noted that third-party conduct will not absolve the defendant of liability for a dangerous condition where the plaintiff alleges that the public entity maintained the property in a way that increased the risk of criminal activity. Under those circumstances, he said that there must be a defect in the physical condition of the property that has some causal relationship to the injurious event.
He wrote:
“Plaintiffs argue that the County ‘created’ a dangerous condition through the following property management decisions: allowing an illegal and hidden encampment to exist adjacent to the only practical access path to the public restrooms near the beach, channeling visitors past the encampment by its property layout, and failing to address the conditions despite knowledge of the violent tendencies of the encampment’s occupants.”
Rejecting these contentions, he remarked:
“The encampment itself did not have defects such that it was a dangerous condition within the meaning of 835; rather, the encampment was made dangerous by the individuals who were residing in it.”
He continued:
“Here, plaintiffs’ allegations fail to show that there was some physical defect in the encampment itself or that there was any causal connection between such a defect and plaintiffs’ injuries. Although plaintiffs allege that Franck and his companion ‘had at least one dangerous and lethal weapon stored in the encampment,’ there is nothing in the complaint’s allegations to suggest that the weapon could not have readily been stored on their persons, or in the bushes near the encampment.”
Peterson Case
Moor was similarly unpersuaded by the plaintiffs’ comparison to the 1984 California Supreme Court case of Peterson v. San Francisco Community College District, in which the high court held that a female student, who was assaulted along a stairway in the school’s parking lot by a man who jumped out from behind thick foliage, had sufficiently alleged a dangerous condition.
The jurist noted that the Peterson court found that a special relationship existed between the school and the students and opined:
“Here, plaintiffs, who were members of the general public accessing a public beach, claim no special relationship with the County….
“To the extent plaintiffs argue that removal of the encampment is the equivalent of trimming the foliage in Peterson in order to reduce the risk of third party criminal activity, we disagree.”
As to the asserted duty to warn, he wrote:
“We disagree that the County had a duty to warn beachgoers for many of the same reasons discussed above…. There are solid policy reasons behind not interpreting section 835 to impose upon public entities a duty to warn of the risks of possible criminal conduct.”
He added that “[a]lthough plaintiffs resist the notion that this case has little to do with the encampment, and everything to do with Franck’s dangerousness, the solution to the risks posed by Franck’s dangerousness was a greater police presence.” However, he said that Government Code §845 “provides statutory immunity for failing to provide” such services.
The case is Perez v. County of Los Angeles, B335848.
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