# Gonzales v. City of San Diego

> California Court of Appeal · April 20, 1982 · 130 Cal. App. 3d 882

URL: https://www.frixlaw.com/law-library/cases/9718929

## Case

- **Full name:** STEVE ANTHONY GONZALES Et Al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO, Defendant and Respondent
- **Court:** California Court of Appeal
- **Decided:** April 20, 1982
- **Citations:** 130 Cal. App. 3d 882; 182 Cal. Rptr. 73; 1982 Cal. App. LEXIS 1441
- **Precedential status:** Published
- **Opinion:** Concurrence by Staniforth
- **Judges:** Work, Staniforth
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9718929

## Opinion text

STANIFORTH, J.
I concur in the result but would reason differently. I conclude, as the opinion does, once the City has entered into maintenance and lifeguard services, it has a duty to perform those services with reasonable care. (Hartzler v. City of San Jose (1975) 46 Cal. App.3d 6 [ 120 Cal.Rptr. 5 ]; Mann v. State of California (1977) 70 Cal.App.3d 773 [ 139 Cal.Rptr. 82 ]; Fuller v. State of California (1975) 51 Cal.App.3d 926 [125 Cal:Rptr. 586].) Whether the City was negligent in the performance of its voluntarily accepted responsibility, and whether this negligent performance was the proximate cause of the plaintiff’s death are issues for trial. (Buchanan v. City of Newport Beach (1975) 50 Cal.App.3d 221 [ 123 Cal.Rptr. 338 ]; Norton v. City of Pomona (1935) 5 Cal.2d 54 [ 53 P.2d 952 ].)
Plaintiffs here allege an ordinary negligence action: The City provided lifeguard and maintenance services to the beach area owned and controlled by the city. The service included a duty to warn of unsafe conditions. The city failed to perform lifeguard and maintenance services in a reasonable manner in that it failed to warn of a known dangerous condition at the beach. Finally, plaintiff’s death was proximately caused by this failure to warn. Plaintiffs argue they “do not seek *891 damages for death because a riptide condition existed in the ocean but rather, seek damages because defendant negligently failed to take reasonable steps to warn of the existence of a dangerous condition on property over which it exercised control.” Stated another way, “[plaintiffs here do not seek to hold defendant liable because of a riptide condition which existed in the ocean but rather, because knowing of such a condition and its dangers to swimmers, it took no reasonable steps to warn of such dangers.”
The error in sustaining the general demurrer is two-fold in this case. First, the cause of action for negligence is sufficiently pleaded. In order to assess the sufficiency of the complaint, the facts must be accepted as pleaded and the allegations construed liberally with a view towards attaining substantial justice between the parties. (Jennings v. Imperial Bank (1978) 87 Cal.App.3d 896, 898-899 [ 152 Cal.Rptr. 15 ].) Second, it was error to sustain the demurrer based on Government Code section 831.2. Section 831.2 does not apply to a cause of action in negligence based on the City’s failure to warn. The statute provides immunity “for an injury caused by a natural condition of any unimproved public property ... .” The section is not called into play simply because the injury occurred at a beach. The plaintiff should be able to pose the question of causation to the jury; if the injury was proximately caused by the city’s failure to act then the death was not caused by the natural riptide condition within the meaning of section 831.2. (Flournoy v. State of California (1969) 275 Cal.App.2d 806 [ 80 Cal.Rptr. 485 ].) Unlike a defense which operates to cut off a cause of action, such as the statute of limitations, the defense raised in this case, governmental immunity under section 831.2, is subject to factual issues requiring trial. (Fuller v. State of California, supra, 51 Cal.App.3d 926, at p. 937 .) Even if section 831.2 could be raised as a defense, its applicability depends upon factual, triable issues. The demurrer was therefore improperly sustained.
Respondent’s petition for a hearing by the Supreme Court was denied June 29, 1982. Mosk, J., Richardson, J., and Kaus, J., were of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718929. Public record. Not legal advice.