Filed 1/5/16 Steinborn v. Dos Palos Oro Loma Joint School Dist. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

JOHN STEINBORN,
                                                                                           F069711
         Plaintiff and Appellant,
                                                                                    (Merced Super. Ct.
                   v.                                                               No. CVM016173)

DOS PALOS ORO LOMA JOINT SCHOOL
DISTRICT et al.,                                                                         OPINION
         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Merced County. Donald J.
Proietti, Judge.
         Georgeson and Belardinelli and Richard A. Belardinelli for Plaintiff and
Appellant.
         Edrington, Schirmer & Murphy, Timothy P. Murphy, and Owen T. Rooney for
Defendants and Respondents.
                                                        -ooOoo-
       Plaintiff John Steinborn sued respondents Dos Palos Oro Loma Joint Unified
School District and Bryant Middle School (collectively, “defendants”)1 for injuries he
allegedly sustained crossing a street adjacent to the school. Defendants filed a demurrer
to the two causes of action against them, which the court sustained without leave to
amend.
       We conclude the court properly sustained the demurrer, but should have granted
leave to amend the cause of action alleging a dangerous condition of public property. We
therefore reverse the judgment and remand with directions for the trial court to enter a
new order that sustains the demurrer, but grants leave to amend the fourth cause of
action.2
                                          FACTS3
       On December 6, 2012, Steinborn officiated a basketball game at the gymnasium of
Bryant Middle School, which is part of the Dos Palos Oro Loma Joint Unified School
District. The school is adjacent to Bryant Avenue, a north/south roadway on the east side
of the school. After the game, at approximately 5:45 p.m., Steinborn walked across
Bryant Avenue heading towards his vehicle. Steinborn’s vehicle was parked on a
property across from Bryant Avenue, which defendants used as a parking lot. Upon
reaching his vehicle, Steinborn learned he had forgotten something in the school
gymnasium. Steinborn began to cross Bryant Avenue heading back towards the school
when he was struck by a motorist. Steinborn was outside the crosswalk when struck. The
motorist’s view had been obstructed by a Chowchilla School District bus, which had been



       1Steinborn also sued several other defendants who are not parties to this appeal.
Our use of the word “defendants” in this opinion refers only to Bryant Middle School and
Dos Palos Oro Loma Joint Unified School District.
       2   The new order shall deny leave to amend the third cause of action.
       3   The facts are taken from Steinborn’s first amended complaint.


                                              2.
parked on Bryant Avenue while loading students. Bryant Middle School had a
designated bus loading lane, but it was locked at the time of the accident.
       Steinborn sued several individuals and entities. His first amended complaint
alleged two causes of action against the defendants in this appeal: failure to discharge a
mandatory duty (the third cause of action - Gov. Code, § 815.6) and dangerous condition
of public property (the fourth cause of action - Gov. Code, § 835.) Defendants filed a
demurrer as to both causes of action, which the court granted without leave to amend.
The court subsequently entered judgment in favor of defendants and Steinborn now
challenges the court’s rulings on the demurrer.
                                       DISCUSSION
       “On appeal from the dismissal of an action after a demurrer has been sustained, we
exercise our independent judgment to determine whether the complaint states a cause of
action under any theory. [Citation.] We accept as true all properly pleaded material
facts, all facts that may be inferred from the allegations, and all matters judicially noticed,
but we do not accept the truth of contentions, deductions or conclusions of law.
[Citation.])” (Fairview Valley Fire, Inc. v. California Department of Forestry & Fire
Protection (2015) 233 Cal.App.4th 1262, 1268 (Fairview).)
       When a demurrer is sustained without leave to amend, “we decide whether there is
a reasonable possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. [Citations.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
I.     Third Cause of Action
       A. Allegations
       Steinborn’s third cause of action alleged that defendants, as public entities, failed
to discharge certain mandatory duties and thereby proximately caused his injury. (See
Gov. Code, § 815.6.) The cause of action identified the following alleged breaches of
mandatory duties:

                                              3.
         1. Defendants “failed to comply with their mandatory duties … to properly mark,
            identify, maintain, preserve, and repair the pedestrian crosswalks contiguous to
            a school building or the grounds thereof in violation of their mandatory duty
            under California Vehicle Code Section 21368 .…”
         2. Defendants “failed to maintain, repair and maintain the proper functioning of
            warning lights and signals.”
         3. Defendants “failed to comply with their mandatory duty to properly paint
            and/or mark in yellow on each side of the street in the lane or lanes leading to
            all yellow marked crosswalks the following words, ‘SLOW-SCHOOL XING,’
            in violation of California Vehicle Code Section 21368.…”
         B. Analysis
                1. Background Law and the Parties’ Contentions
         “[I]n California, ‘all government tort liability must be based on statute [citation].’
[Citation.]” (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932; see also
Gov. Code, § 815, subd. (a).)
         One such statute providing for government tort liability is Government Code
section 815.6, which reads:

                 “Where a public entity is under a mandatory duty imposed by an
         enactment that is designed to protect against the risk of a particular kind of
         injury, the public entity is liable for an injury of that kind proximately
         caused by its failure to discharge the duty unless the public entity
         establishes that it exercised reasonable diligence to discharge the duty.”
         Steinborn contends that defendants are liable under Government Code section
815.6 because they failed to discharge mandatory duties set forth in Vehicle Code section
21368.
         Vehicle Code section 21368 reads:

                “Whenever a marked pedestrian crosswalk has been established in a
         roadway contiguous to a school building or the grounds thereof, it shall be
         painted or marked in yellow as shall be all the marked pedestrian

                                                4.
       crosswalks at an intersection in case any one of the crosswalks is required
       to be marked in yellow. Other established marked pedestrian crosswalks
       may be painted or marked in yellow if either (a) the nearest point of the
       crosswalk is not more than 600 feet from a school building or the grounds
       thereof, or (b) the nearest point of the crosswalk is not more than 2,800 feet
       from a school building or the grounds thereof, there are no intervening
       crosswalks other than those contiguous to the school grounds, and it
       appears that the facts and circumstances require special painting or marking
       of the crosswalks for the protection and safety of persons attending the
       school. There shall be painted or marked in yellow on each side of the
       street in the lane or lanes leading to all yellow marked crosswalks the
       following words, ‘SLOW--SCHOOL XING,’ except that such words shall
       not be painted or marked in any lane leading to a crosswalk at an
       intersection controlled by stop signs, traffic signals, or yield right-of-way
       signs. A crosswalk shall not be painted or marked yellow at any location
       other than as required or permitted in this section.”
       Defendants essentially contend that while Vehicle Code section 21368 may create
several duties concerning crosswalks, it imposes those duties on a different public entity.
And “[t]here is no mandatory duty imposed on a public entity if the specified enactment
is inapplicable to that entity. [Citations.]” (Guzman v. County of Monterey (2009) 46
Cal.4th 887, 902.) We agree with defendants.
                     a. Standard of Review
       “ ‘Whether an enactment creates a mandatory duty is a question of law ….’
[Citation.]” (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1089.)
Similarly, determining whether Vehicle Code section 21368 applies to a particular set of
facts is a question of law. (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1350;
Lewis v. City of Los Angeles (1982) 137 Cal.App.3d 518, 521.)
                     b. Application
       It is clear that Vehicle Code section 21368 sets forth several requirements
pertaining to certain crosswalks near schools: they must be painted or marked in yellow;
they must be surrounded by the words “SLOW—SCHOOL XING” on each side, etc.
(Veh. Code, § 21368.) The important question in this case is whether those duties are to
be borne by the school and/or school district, or some other entity.

                                             5.
       Where a statute in placed within a statutory code is a strong indicator of the
legislature’s intent. (See Roman Catholic Bishop of Oakland v. Superior Court (2005)
128 Cal.App.4th 1155, 11691170.) Vehicle Code section 21368 is found in Article 1,
Chapter 2, Division 11 of the Vehicle Code, which pertains to “Erection and
Maintenance” of traffic signs, signals and markings. At the beginning of Article 1, the
Vehicle Code defines government authority pertaining to the erection and maintenance of
traffic signs, signals and markings. (Veh. Code, §§ 21350–21351.) It provides that the
state Department of Transportation “shall place and maintain, or cause to be placed and
maintained, with respect to the highways under its jurisdiction, appropriate signs, signals,
and other traffic control devices as required hereunder ….” (Veh. Code, § 21350, italics
added.) It also provides that “[l]ocal authorities in their respective jurisdictions shall
place and maintain or cause to be placed and maintained such traffic signs, signals and
other traffic control devices upon streets and highways as required hereunder ….” (Veh.
Code, § 21351, italics added.) The subsequent sections of the Article then proceed to
outline various mandatory or optional signs and markings, including the crosswalk
specifications of Vehicle Code section 21368. (Veh. Code, §§ 21351.3–21368.)
       The plain import of this statutory structure is that the creation and maintenance of
the various “traffic signs, signals and other traffic control devices” described in Article 1,
Chapter 2, Division 11 of the Vehicle Code – including Vehicle Code section 21368 – are
the responsibility of: (1) the Department of Transportation as to highways under its
jurisdiction (Veh. Code, § 21350), and (2) the “[l]ocal authorities.” (Veh. Code, § 21351.)
A school and a school district fall under neither of these categories.4 (Searcy v. Hemet


       4 Steinborn apparently agrees that Vehicle Code section 21368 should be read
alongside Vehicle Code section 21351. But he argues that Vehicle Code section 21351
imposes the duty to place and maintain traffic signals, etc., on “local authorities” without
identifying the specific public entities embraced by that term. It is true that Vehicle Code
section 21351 itself does not define “local authorities.” But Vehicle Code section 385
does. “ ‘Local authorities’ means the legislative body of every county or municipality

                                              6.
Unified School Dist., supra, 177 Cal.App.3d at p. 801; see also Wright v. Arcade School
Dist. (1964) 230 Cal.App.2d 272, 278.) And “[t]here is no mandatory duty imposed on a
public entity if the specified enactment is inapplicable to that entity. [Citations.]”
(Guzman v. County of Monterey, supra, 46 Cal.4th at p. 902.) Because Vehicle Code
section 21368 does not impose a “mandatory duty” (Gov. Code, § 815.6) on a school or
school district, the statute cannot support a Government Code section 815.6 claim against
a school or school district. The court properly sustained defendants’ demurrer to this
cause of action.5
   II. Fourth Cause of Action
       The fourth cause of action alleged that defendants “knowingly and negligently”
created several dangerous conditions of public property. (See Gov. Code, § 835.) The
cause of action identified the following allegedly dangerous conditions:
       1. “[L]ocking the bus parking entrance and unloading zone and prohibiting access
           to such area preventing its use which caused the bus to park on Bryant Avenue
           in a location that requires the Chowchilla bus to illegally park ….”[6]

having authority to adopt local police regulations.” (Veh. Code, § 385; see also Veh.
Code, § 100.) A school and a school district do not fall within this definition of “local
authorities.” (See Searcy v. Hemet Unif. Sch. Dist. (1986) 177 Cal.App.3d 792, 801.)
       5 We also conclude the court properly denied leave to amend. It is the plaintiff’s
burden to show how a complaint could be amended to remedy its deficiencies.
(Fairview, supra, 233 Cal.App.4th at p. 1268.) Steinborn argued that he could amend the
mandatory duty cause of action to add allegations that defendants have assumed a
responsibility to safeguard the transit of students to and from school under Education
Code section 44808. That statute only concerns the liability (or lack thereof) to “any
pupil of the public schools.” (Ed. Code, § 44808.)
        Steinborn also argued he could “amplify[]” existing allegations. However, he
failed to identify any specific, new allegations that would remedy the insufficiencies of
the third cause of action.
       6On appeal, Steinborn does not defend the fourth cause of action based on the
“locked bus parking area” allegations. Instead, he relies on the allegations concerning the
defective condition of Bryant Avenue.


                                              7.
       2. “[F]ailed to control, supervise, manage, design and/or otherwise prevent the
           dangerous condition created by the unsafe parking on adjacent property ….”
       3. “[F]ailing to properly light or repair pedestrian signal lighting and warnings in
           the area ….”
       4. “Failing to properly maintain, repair and adequately and visibly mark
           pedestrian cross-walks and street warnings of a pedestrian cross-walk … used
           by [p]edestrians in traversing/crossing Bryant Avenue and necessary to warn
           motorists of pedestrian traffic.”
       5. “[F]ailing to mark in yellow on each side of the street in the lane or lanes
           leading to all cross-walks the words ‘SLOW—SCHOOL XING ….’ ”
       6. “[F]ailing to prohibit buses from parking along Bryant Avenue ….”
       7. “[F]ailing to utilize, repair, maintain, operate[,] insure the proper functioning
           of the pedestrian overhead warning lights on Bryant Avenue ….”7
       The court sustained the demurrer to Steinborn’s fourth cause of action, ruling that
he had “not alleged a dangerous condition of public property as defined by Government
Code § 830.” Defendants contend that since they did not own, maintain or control Bryant
Avenue, there is no viable cause of action for a dangerous condition of public property.
However, the fact defendants do not own, maintain or control Bryant Avenue is not
dispositive in light of Bonanno v. Central Contra Costa Transit Authority (2003) 30
Cal.4th 139 (Bonanno).




       7The first amended complaint asserts these in a numbered list format. Our
numbering of these allegations does not match the complaint because we have excluded
one entry, which does not allege an independent condition of property. It reads: “(7)
having actual or constructive knowledge of the dangerous condition of pedestrians’ use of
Bryant Avenue along both the east and west sides that created a dangerous condition of
public property and a substantial and foreseeable risk of injury to pedestrians foreseeable
to Defendants Merced, Dos Palos and Bryant.”


                                               8.
       Bonanno involved a bus stop maintained by the Central Contra Costa Transit
Authority (CCCTA). (Bonanno, supra, 30 Cal.4th at p. 144.) The bus stop was located
in an unincorporated area of the county on Pacheco Boulevard near its intersection with
DeNormandie Way. In the early 1980’s, the county had painted a crosswalk at the
intersection of Pacheco Boulevard and DeNormandie Way to make it easier to reach the
bus stop. (Ibid.) In 1993, plaintiff Darlene Bonanno was struck by a car as she crossed
the intersection of Pacheco Boulevard and DeNormandie Way through the crosswalk.
(Id. at p. 145.)
       CCCTA argued – as defendants do in the present case – that it could not be liable
“for an injury occurring on property (the street) it neither owned nor controlled….”8
(Bonanno, supra, 30 Cal.4th at p. 151.) The Bonanno court, however, observed that
while a dangerous condition most obviously exists when public property is “physically
damaged, deteriorated, or defective,” a dangerous condition may also exist in “the
location of public property, by virtue of which users are subjected to hazards on adjacent
property.” (Id. at pp. 149, 154, italics in original.) Accordingly, it rejected CCCTA’s
contention and held that “CCCTA owned and controlled its own bus stop, and a condition
of that property, its physical situation, caused users of the bus stop to be at risk from the
immediately adjacent property[]” (i.e., the street). (Id. at p. 151, italics in original.)
       Under the reasoning of Bonanno, we must reject defendants’ contention that
Steinborn cannot state a viable cause of action merely because they do not own, maintain
or control Bryant Avenue. If, as Steinborn alleges, Bryant Avenue is in a dangerous
condition because of inadequate lighting, insufficient marking and maintenance of
crosswalks, etc., and the location of the parking area exposes its users to the alleged


       8The Supreme Court limited its review of the case by assuming the crosswalk was
indeed dangerous, which left “only the question whether a bus stop may be deemed
dangerous because bus users, to reach the stop, must cross at [a] dangerous crosswalk.”
(Bonanno, supra, 30 Cal.4th at p. 147, italics in original.)


                                               9.
hazards posed by Bryant Avenue’s dangerous condition, then the parking area is also in a
dangerous condition under the reasoning of Bonanno.
       However, it remains unclear whether Steinborn has a viable claim under
Government Code section 835. While the location of the parking area may potentially be
deemed a dangerous condition under Bonanno, the first amended complaint does not
sufficiently alleged that defendants “owned or controlled” (Gov. Code, § 830, subd. (c))
the parking area across Bryant Avenue.9 Instead, the complaint alleges that defendants
“utilized” the property for parking and knew that attendees of school events regularly
used the property for parking. These facts do not establish that defendants “owned or
controlled” (ibid.) the parking property. Therefore, the demurrer was properly sustained.
       However, there is a reasonable possibility that the defect can be cured by
amendment. Specifically, Steinborn might allege additional facts that show defendants
actually did “own[] or control[]” (Gov. Code, § 830, subd. (c)) the parking area property.
Or, possibly, Steinborn will be unable to allege such facts. Regardless, leave to amend is
required if there is a reasonable possibility a defect can be cured by amendment. (Blank
v. Kirwan, supra, 39 Cal.3d at p. 318.) Because such a possibility exists here, Steinborn
must be given an opportunity to state a viable claim under Bonanno.
                                     DISPOSITION
       The judgment is reversed and the matter remanded to the superior court. On
remand, the superior court shall enter a new order: (1) sustaining defendants’ demurrer
to the third cause of action without leave to amend, and (2) sustaining defendants’



       9 This is important because it is the location of the parking area – rather than the
location of the school itself – that may potentially support a Bonanno claim. The location
of the school itself would not constitute a dangerous condition under Bonanno because it
cannot be easily moved. (See Bonanno, supra, 30 Cal.4th at p. 152 [distinguishing
Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481 on the basis that a bus stop can
be moved or eliminated while a hotel cannot.].)


                                            10.
demurrer to the fourth cause of action with leave to amend. Each party shall bear their
own costs on appeal.

                                                               _____________________
                                                               POOCHIGIAN, J.
WE CONCUR:


______________________
LEVY, Acting P.J.


______________________
KANE, J.




                                           11.
