The opinion
Filed 9/27/23 Vandorien v. Dept. of Transportation CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
CONNIE VANDORIEN et al., C096220
Plaintiffs and Appellants, (Super. Ct. Nos. 192661,
192674)
v.
DEPARTMENT OF TRANSPORTATION,
Defendant and Respondent.
During the Carr Fire in 2018, the Department of Forestry and Fire Protection
(CalFire) contracted with several private entities to assist with fire suppression efforts.
Plaintiffs Donald Andrews and Terry Cummings, and decedent Don Smith, were
bulldozer operators employed by three of these private entities, and they were instructed
by CalFire to create containment lines intended to deprive the fire of additional fuel.1 In
the course of their fire suppression efforts, the fire overtook their bulldozers, injuring
Donald and Cummings and killing Smith.
1 Because Donald Andrews’s wife, Debra, is also a plaintiff, we will refer to the
Andrewses by their first names to avoid confusion.
1
In their second amended complaint (SAC), Donald, Debra, and Cummings
(combined “Andrews and Cummings”) sued the Department of Transportation
(CalTrans), alleging that CalTrans had created a dangerous condition on property it
owned or controlled by failing to properly assess fire risk and to adequately maintain
vegetation along the portion of State Route 299 (SR-299), where the fire allegedly
started.
In a separate case brought by hundreds of plaintiffs, including the heirs of Don
Smith (the heirs), the heirs brought a wrongful death claim against CalTrans, raising
nearly identical allegations of a dangerous condition on SR-299.
CalTrans successfully demurred to the SAC and the heirs’ wrongful death claim
on the basis that it was not liable under our Supreme Court’s holding in Privette v.
Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny, which generally prohibit
an independent contractor or its employees from suing the hirer of the contractor for
workplace injuries except where the hirer has negligently exercised retained control or
concealed a preexisting hazard.
Appellants now contend the trial court erred by sustaining CalTrans’s demurrer
because the Privette doctrine does not apply to their causes of action, and, even if it does,
both exceptions to the doctrine apply here. We disagree and affirm.
The heirs additionally contend that we may review the trial court’s decision to
sustain CalTrans’s demurrer to a separate cause of action for mandatory duty, which the
court sustained with leave to amend. We conclude we lack jurisdiction to consider that
nonappealable order.
FACTS AND PROCEEDINGS
Andrews’s and Cummings’s Original and First Amended Complaints
Andrews and Cummings filed their original complaint on June 6, 2019, in Shasta
County against the State of California, CalTrans, and CalFire. The original complaint
alleged that on July 23, 2018, “a vegetation fire started on the shoulder of and within the
2
right of way of SR-299 near Carr Powerhouse Road, in the Whiskeytown National
Recreation Area, Shasta County, California, and spread through Shasta and Trinity
counties, including the City of Redding.” The complaint asserted upon information and
belief that a disabled car started the fire by igniting vegetation on the shoulder of the
road. This fire came to be known as the Carr Fire.
The complaint further alleged that Donald and Cummings were two bulldozer
operators who worked for entities (contractor-employers) that contracted with CalFire to
assist with efforts to suppress the Carr Fire. On July 26, 2018, they were assigned to a
division by CalFire and were instructed to respond to CalFire’s “Dozer Supervisor.”
They were assisting with fire suppression efforts when the fire overtook their bulldozers,
causing serious injuries.
The complaint asserted four causes of action. First, it alleged as against the state
and CalTrans that CalTrans owned, controlled, or was otherwise responsible for
maintaining the portion of SR-299 where the Carr Fire began, that CalTrans negligently
created a dangerous condition by, among other things, failing to adequately maintain the
vegetation in the area so as to mitigate fire risk, failing to adequately prepare for
emergency response, and failing to timely or reasonably evacuate persons at risk, and that
Donald and Cummings were injured as a direct and proximate result of the dangerous
condition CalTrans had created.
Second, the complaint alleged as against the state and CalFire that CalFire created
a dangerous condition by, among other things, failing to provide and maintain
functioning communications systems. It alleged that Donald and Cummings had been
instructed by CalFire to create a containment line, they were following CalFire’s
instructions at all relevant times, and CalFire was responsible for their supervision and
safety, including by providing them with a functioning communications system through
which they could be told to evacuate. The complaint alleged that Donald and Cummings
3
sustained injuries that were caused by CalFire’s failure to correct the dangerous condition
it had created.
Finally, the complaint alleged that CalFire’s and CalTrans’s conduct had
negligently inflicted emotional distress, and Debra claimed loss of consortium.
In December 2020, Andrews and Cummings filed a first amended complaint
(FAC), which alleged two causes of action against CalTrans only: (1) dangerous
condition of public property brought by Donald and Cummings; and (2) loss of
consortium brought by Debra. Similar to the original complaint, the dangerous condition
cause of action generally alleged that CalTrans failed, inter alia, to adequately maintain
vegetation on property it owned or controlled, assess the risk of fire, establish fire
prevention measures, maintain or create fire breaks, have an evacuation plan in place, and
evacuate persons at risk in a timely manner, causing Donald and Cummings to suffer
injuries.
The Heirs’ Allegations
In a separate case, more than 800 plaintiffs who were alleged to have been injured
in the Carr Fire brought a class action raising claims for dangerous condition of property,
inverse condemnation, public and private nuisance, breach of a mandatory duty, and
wrongful death. (W. Jaxon Baker et al. v. State of California Department of
Transportation (Super. Ct. Shasta County, 2021, No. 192661) (Baker case).) Among
those plaintiffs were the heirs. The ninth cause of action of the third amended complaint
alleged that Smith “died while working as a private dozer operator trying to contain the
fire,” and sought damages from CalTrans on a wrongful death theory of liability on the
basis that the agency had created a dangerous condition constituting a fire hazard.
The sixth cause of action asserted that CalTrans breached its mandatory duty
under the Fire Code and Health and Safety Code by failing to adequately maintain
vegetation on property it controlled, creating a fire hazard, and failing to take proper
precautions to prevent or stop the spread of the fire.
4
CalTrans’s Initial Demurrers
CalTrans demurred to the FAC based on the workers’ compensation exclusive
remedy rule and Privette doctrine, and the primary assumption of risk doctrine. The trial
court sustained the demurrer on the basis that the FAC failed to identify whether workers’
compensation benefits were available through their contractor-employers. The court
granted leave to amend, stating “[t]he burden of establishing an exception to the
exclusive jurisdiction of the Workers’ Compensation system is upon the Plaintiffs” and
“[t]he complaint provides insufficient factual grounds to support such an exception.” The
court noted that the FAC was vague as to how they were paid for their services, the
nature of the delegation of any responsibility from their contractor-employers to
CalTrans, and whether CalTrans’s exercise of control contributed to their injuries. The
court stated that it was “prepared to order focused discovery so that the true facts may be
ascertained.”
CalTrans also demurred to the heirs’ wrongful death cause of action in the Baker
case. The trial court sustained the demurrer, concluding that the heirs failed to allege
facts sufficient to show a duty imposed on the state under the circumstances because the
complaint was vague as to Smith’s employment capacity. The court noted that if the
heirs amended their cause of action to allege that Smith was an employee of a private
construction firm, then the court’s analysis of CalTrans’s demurrer to the FAC would
likely apply, with consideration of any difference in circumstances.
Andrews’s and Cummings’s SAC and CalTrans’s Demurrer
Andrews and Cummings subsequently filed the SAC, which is the operative
complaint. It named only CalTrans as the defendant, and it raised allegations against
“Defendant STATE.” The SAC alleged that Donald and Cummings were employed as
bulldozer operators by private companies that had contracted with CalFire to assist
CalFire’s efforts to fight the Carr fire. They were injured while creating contingency
lines when the fire overtook their bulldozers. CalFire did not control their work-related
5
activities or their employers, other than to give “mere suggestion of details or
cooperation.” Instead, CalFire’s role was simply to advise Donald and Cummings and
their employers regarding work that needed to be done and to “act as eyes and ears
regarding the progression of the fire.” Their contractor-employers were required to
obtain and maintain their own workers’ compensation insurance for them, and workers’
compensation insurance was not provided for them by any state agency.
The SAC’s first cause of action alleged that “Defendant STATE” created a
dangerous condition on property it owned or controlled and failed to adequately assess
the risk of harm of fire starting on its property.2 The SAC deleted several allegations
2 Specifically, the SAC alleged that the state “failed to comply with its obligations under
the law, and otherwise created a dangerous condition of property by, and including the
following acts or omissions: [¶] Failing to adequately assess the risk of harm of fire
starting on its property, including in its right of way; [¶] Failing to adequately consider
the risk that a fire starting on the shoulder of SR-299 in the Whiskeytown National
Recreation area would, due to surrounding terrain, fuel load, and high ambient
temperature, rapidly spread and become uncontrollable; [¶] Failing to establish adequate
fire prevention measures; [¶] Failing to comply with the Vegetation Control Plan; [¶]
Failing to create an adequate Vegetation Control Plan for the area; [¶] Failing to educate
the public about wildland fire dangers and steps that can be taken to prevent or minimize
their effects; [¶] Failing to reduce the potential for destructive actions of the fire once
ignition occurs; [¶] Negligently inspecting, maintaining and controlling SR-299 and the
portion of land adjacent thereto, in a manner that allowed or permitted brush and
vegetation in the right of way to border the subject roadway, increasing the risk of a
wildfire starting alongside the roadway; [¶] Failing to maintain or create sufficient fire
breaks; [¶] Failing to create adequate fire safety management practices; [¶] Failing to
comply with fire safety management practices; [¶] Failing to properly assess, monitor,
inspect, trim, cut, maintain or manage vegetation surrounding and in close proximity to
roads or in its right of way, including SR-299; [¶] Failing to conduct adequate, proper and
frequent hazard inspections of its roads and right of ways, including SR-299; [¶] Failing
to design, construct, install, operate, repair, monitor or maintain its roads and right of
ways, including SR-299, in a manner that is safe under the surrounding conditions and in
a manner that avoids igniting fires or the spread of fires, especially during long dry
seasons with high winds, such as those that face Shasta County[;] [¶] Failing to conduct
adequate, proper and frequent inspections of fire-prone areas, such as the Whiskeytown
National Recreation Area; [¶] Failing to implement and follow reasonably prudent
6
from the FAC regarding the failure to have an evacuation plan in place, to communicate
the evacuation order, and to evacuate at risk persons. The SAC’s second cause of action
alleged loss of consortium by Debra.
CalTrans demurred to the SAC and moved to strike it based on the primary
assumption of risk doctrine, the workers’ compensation exclusive remedy rule, and the
Privette doctrine.
The trial court overruled the primary assumption of risk ground, but sustained the
demurrer without leave to amend on the grounds that the dangerous condition cause of
action was barred by the workers’ compensation exclusive remedy rule and the Privette
doctrine. The court further ruled that the loss of consortium claim was barred as
derivative of the dangerous condition claim.
The trial court entered a judgment of dismissal after it sustained CalTrans’s
demurrer. Andrews and Cummings timely appealed.
Baker Case’s Fourth Amended Complaint and CalTrans’s Demurrer
The Baker case plaintiffs filed a fourth amended complaint. As relevant here, the
heirs amended their wrongful death cause of action to allege that Smith was not a
firefighter employed by the state, but rather was a private bulldozer operator and
independent contractor working for a private company assisting with fire suppression
efforts. The complaint alleged that Smith died when the fire overtook him while he was
practices of vegetation control and maintenance; [¶] Failing to implement and follow
reasonably prudent practices to avoid fire ignition alongside roads and in right of ways;
[¶] Failing to comply with applicable statutes, regulations and standards enacted to
protect against the type of harm suffered by plaintiffs; [¶] Failing to warn the public of
the danger and unsafe condition[;] [¶] Allowing a dangerous condition ( overgrown
vegetation) to exist and remain for a significant period of time prior to July 23, 2018; [¶]
Allowing a dangerous condition to be created due to the existence of overgrown
vegetation alongside SR-299; and [¶] Allowing vegetation that poses a fire risk to
accumulate alongside SR-299.” (Bullet points omitted.)
7
creating a containment line, and the fire that “ultimately resulted in [Smith’s] death was a
direct, proximate, and legal result” of a dangerous condition on CalTrans’s property.
The heirs’ wrongful death claim further alleged that CalFire’s role was simply to
advise Smith and his employer of the work that needed to be done and to “act as eyes and
ears regarding the progression of the fire,” but CalFire “did not control [Smith] or his
employer or the work they performed beyond mere suggestion of details or cooperation.”
They alleged that his private employer, not CalFire, paid his wages, and neither CalFire
nor any other state agency paid for or offered workers’ compensation death benefits to
Smith’s family after he died.
CalTrans demurred again based on the primary assumption of risk doctrine, the
workers’ compensation exclusive remedy rule, and Privette. The trial court again
overruled the primary assumption of risk ground and sustained the demurrer without
leave to amend on the grounds that the heirs’ wrongful death cause of action was barred
by the workers’ compensation exclusive remedy rule and the Privette doctrine.
CalTrans also demurred to the fourth amended complaint’s sixth cause of action
for mandatory duty, which the trial court sustained with leave to amend.
On February 10, 2022, the trial court entered judgment in favor of CalTrans as to
the heirs’ wrongful death cause of action.
On April 11, 2022, the plaintiffs in the Baker case petitioned for writ of mandate
and/or prohibition challenging the trial court’s ruling sustaining the demurrer as to the
mandatory duty cause of action; CalTrans opposed. (Baker et al. v. Superior Court (Apr.
11, 2022, C096007), petn. den.)3 A panel of this court summarily denied that petition.
3 We grant CalTrans’s request that we take judicial notice of the petition for writ of
mandate and/or prohibition filed in this court, CalTrans’s opposition thereto, and this
court’s order denying the petition. (Evid. Code, § 452, subd. (d).)
8
The heirs timely appealed from the judgment dismissing their wrongful death
cause of action. The case was fully briefed on May 31, 2023, and was assigned to the
current panel on June 30, 2023.
DISCUSSION
I
Demurrers
A complaint must contain “[a] statement of the facts constituting the cause of
action, in ordinary and concise language.” (Code Civ. Proc., § 425.10, subd. (a)(1).)
When a complaint “does not state facts sufficient to constitute a cause of action,” a
defendant may raise that objection by filing a demurrer. (Id., § 430.10, subd. (e).) “A
demurrer tests only the sufficiency of the pleadings and, as such, raises only a question of
law.” (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1305.) A court
considering a demurrer ordinarily gives the complaint a reasonable interpretation, reading
it as a whole and its parts in their context. (City of Dinuba v. County of Tulare (2007) 41
Cal.4th 859, 865.) The court treats the demurrer as admitting all material facts properly
pleaded, but does not assume the truth of contentions, deductions, or conclusions of law.
(Ibid.) We independently decide questions of law without deference to the trial court’s
conclusions. (Neilson, at p. 1304.) We will affirm a judgment of dismissal if it is correct
on any ground stated in the demurrer, independent of the trial court’s stated reasons.
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Modacure v. B&B Vehicle
Processing, Inc. (2018) 30 Cal.App.5th 690, 694.) The appellants have the burden of
demonstrating the trial court erred in sustaining the demurrer. (Smith v. County of Kern
(1993) 20 Cal.App.4th 1826, 1829-1830.)
Although a general demurrer does not ordinarily reach affirmative defenses, it
“will lie where the complaint ‘has included allegations that clearly disclose some defense
or bar to recovery.’ ” (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.)
“Thus, a demurrer based on an affirmative defense will be sustained only where the face
9
of the complaint discloses that the action is necessarily barred by the defense.” (Ibid.) If
“ ‘the complaint’s allegations or judicially noticeable facts reveal the existence of an
affirmative defense, the “plaintiff must ‘plead around’ the defense, by alleging specific
facts that would avoid the apparent defense. Absent such allegations, the complaint is
subject to demurrer for failure to state a cause of action.” ’ ” (Esparza v. County of Los
Angeles (2014) 224 Cal.App.4th 452, 459.)
Additionally, we must determine “whether the trial court abused its discretion by
sustaining the demurrer without leave to amend. [Citation.] . . . An abuse of discretion
is established when ‘there is a reasonable possibility the plaintiff could cure the defect
with an amendment.’ ” (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.) Again,
the appellants bear the burden of demonstrating error. (Ibid.)
II
The Privette Doctrine
Plaintiffs contend that the Privette doctrine does not apply to their claims, and
even if it does, its exceptions preclude its application here. As we will explain, we
conclude that the well-pleaded facts of the operative complaints demonstrate that the
Privette doctrine operates to bar plaintiffs’ claims. Additionally, we conclude that
plaintiffs have failed to demonstrate the trial court abused its discretion by denying leave
to amend their complaints.
A. The Privette Doctrine and Its Exceptions
“At common law, a person who hired an independent contractor generally was not
liable to third parties for injuries caused by the contractor’s negligence in performing the
work.” (Privette, supra, 5 Cal.4th at p. 693.) This rule was based on the presumption
that when one hires an independent contractor, one “delegates to the contractor the
responsibility to do the work safely. [Citations.] This presumption is grounded in two
major principles: first, that independent contractors by definition ordinarily control the
manner of their own work; and second, that hirers typically hire independent contractors
10
precisely for their greater ability to perform the contracted work safely and successfully.”
(Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 269 (Sandoval).)
Over time, exceptions arose to this common law rule, one of which was contracted
work that posed an inherent risk of injury, known as the peculiar risk doctrine. (Privette,
supra, 5 Cal.4th at p. 693.) Under that doctrine, “a person who hire[d] an independent
contractor to perform work that is inherently dangerous [could] be held liable for tort
damages when the contractor’s negligent performance of the work cause[d] injuries to
others.” (Id. at p. 691.) In Privette, our Supreme Court considered the potential conflict
between the peculiar risk doctrine and the system of workers’ compensation, which “ ‘is
the exclusive remedy against an employer for injury or death of an employee.’ ” (Id. at
pp. 691, 697.)
The Privette court concluded, “in the case of on-the-job injury to an employee of
an independent contractor, the workers’ compensation system of recovery regardless of
fault achieves the identical purposes that underlie recovery under the doctrine of peculiar
risk: It ensures compensation for injury by providing swift and sure compensation to
employees for any workplace injury; it spreads the risk created by the performance of
dangerous work to those who contract for and thus benefit from such work, by including
the cost of workers’ compensation insurance in the price for the contracted work; and it
encourages industrial safety.” (Privette, supra, 5 Cal.4th at p. 701.)
Privette held peculiar risk liability did not extend to employees of an independent
contractor. When “the injuries resulting from an independent contractor’s performance
of inherently dangerous work are to an employee of the contractor, and thus subject to
workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the
employee to seek recovery of tort damages from the person who hired the contractor but
did not cause the injuries.” (Privette, supra, 5 Cal.4th at p. 702.) Thus, the Privette
doctrine generally bars an employee of an independent contractor from recovering
11
damages from the hirer of the contractor for a worksite injury. (SeaBright Ins. Co. v. US
Airways, Inc. (2011) 52 Cal.4th 590, 594.)
Over time, our Supreme Court “recast [its] primary rationale for the Privette
doctrine in terms of delegation rather than workers’ compensation.” (Sandoval, supra, 12
Cal.5th at p. 270.) The court stated its expectation that contractors will “perform the
contracted work more safely than hirers,” and it “endorsed a ‘strong policy’ of presuming
that a hirer delegates all control over the contracted work, and with it all concomitant tort
duties, by entrusting work to a contractor.” (Ibid.) Thus, “[t]here is a strong presumption
under California law that a hirer of an independent contractor delegates to the contractor
all responsibility for workplace safety.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 37.)
“Because the hirer presumptively delegates to the independent contractor the authority to
determine the manner in which the work is to be performed, the contractor also assumes
the responsibility to ensure that the worksite is safe, and the work is performed safely.”
(Id. at p. 41.) “Our premise is ordinarily that when the hirer delegates control, the hirer
simultaneously delegates all tort duties the hirer might otherwise owe the contract
workers. [Citations.] Whatever reasonable care would otherwise have demanded of the
hirer, that demand lies now only with the contractor. If a contract worker becomes
injured after that delegation takes place, we presume that the contractor alone—and not
the hirer—was responsible for any failure to take reasonable precautions.” (Sandoval, at
p. 271.) This rule applies even where the hirer has failed to comply with preexisting
statutory or regulatory workplace safety requirements. (Gonzalez, at p. 47.) The court
determined that this doctrine promotes workplace safety through “clear rules about who’s
responsible for avoiding harms to workers when contractors are hired.” (Sandoval, at p.
264.)
B. Exceptions to Privette: Hooker and Kinsman
The Privette doctrine has exceptions, which “apply where delegation is either
ineffective or incomplete.” (Sandoval, supra, 12 Cal.5th at p. 271.) In Hooker v.
12
Department of Transportation (2002) 27 Cal.4th 198 (Hooker), the court concluded that a
contractor’s employee may sue the hirer of the contractor for the tort of negligent
exercise of control where the hirer’s “exercise of retained control affirmatively
contributed to the employee’s injuries.” (Id. at p. 202.) The court explained, “if an
employee of an independent contractor can show that the hirer of the contractor
affirmatively contributed to the employee’s injuries, then permitting the employee to sue
the hirer for negligent exercise of retained control cannot be said to give the employee an
unwarranted windfall. The tort liability of the hirer is warranted by the hirer’s own
affirmative conduct. The rule of workers’ compensation exclusivity ‘does not preclude
the employee from suing anyone else whose conduct was a proximate cause of the injury’
[citation], and when affirmative conduct by the hirer of a contractor is a proximate cause
contributing to the injuries of an employee of a contractor, the employee should not be
precluded from suing the hirer.” (Id. at p. 214.)
First, a hirer “retains control” as required by Hooker “where it retains a sufficient
degree of authority over the manner of performance of the work entrusted to the
contractor.” (Sandoval, supra, 12 Cal.5th at p. 274.) Second, the hirer must also
“actually exercise” its retained control, which occurs when the hirer “ ‘involves itself in
the contracted work “such that the contractor is not entirely free to do the work in the
contractor’s own manner.” [Citations.] In other words, the hirer must exert some
influence over the manner in which the contracted work is performed.’ [Citation.]
‘Unlike “retained control,” which is satisfied where the hirer retains merely the right to
become so involved, “actual exercise” requires that the hirer in fact involve itself’
[citation], ‘such as by directing the manner or methods in which the contractor performs
the work; interfering with the contractor’s decisions regarding the appropriate safety
measures to adopt; requesting the contractor to use the hirer’s own defective equipment
in performing the work; contractually prohibiting the contractor from implementing a
13
necessary safety precaution; or reneging on a promise to remedy a known hazard.’ ”
(McCullar v. SMC Contracting, Inc. (2022) 83 Cal.App.5th 1005, 1014 (McCullar).)
Third, “ ‘ “[a]ffirmative contribution” means that the hirer’s exercise of retained
control contributes to the injury in a way that isn’t merely derivative of the contractor’s
contribution to the injury.’ [Citation.] A hirer’s conduct satisfies the affirmative
contribution requirement when ‘the hirer in some respect induced—not just failed to
prevent—the contractor’s injury-causing conduct.’ [Citation.] ‘A hirer’s conduct also
satisfies the affirmative contribution requirement where the hirer’s exercise of retained
control contributes to the injury independently of the contractor’s contribution (if any) to
the injury.’ [Citation.] That would be true, for instance, if ‘the hirer promises to
undertake a particular safety measure, [but] then . . . negligent[ly] fail[s] to do so.’ ”
(McCullar, supra, 83 Cal.App.5th at pp. 1014-1015; see Hooker, supra, 27 Cal.4th at p.
212, fn. 3.)
Our Supreme Court recognized a second exception to the Privette doctrine in
Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675 (Kinsman), in which the court
stated: “[T]he hirer as landowner may be independently liable to the contractor’s
employee, even if it does not retain control over the work, if: (1) it knows or reasonably
should know of a concealed, preexisting hazardous condition on its premises; (2) the
contractor does not know and could not reasonably ascertain the condition; and (3) the
landowner fails to warn the contractor.” “[A] landowner-hirer cannot effectively delegate
its duties respecting a concealed hazard without disclosing that hazard to the contractor.
[Citation.] In this context, a ‘concealed’ hazard means something specific: a hazard that
the hirer either knows or reasonably should know exists, and that the contractor does not
know exists and could not reasonably discover without the hirer’s disclosure.”
(Sandoval, supra, 12 Cal.5th at pp. 271-272.) “If the hirer does not sufficiently disclose
the concealed hazard, the hirer retains its tort duties owed to the contract workers
respecting that hazard. A contrary conclusion would cut against the rationale justifying
14
Privette’s presumption of delegation. A contractor is not best situated to perform work
safely when the contractor lacks critical information about relevant hazards.” (Id. at p.
272.)
C. Applicability of the Privette Doctrine to Plaintiffs’ Claims
We observe at the outset that, for our purposes in determining whether plaintiffs’
claims are barred by the Privette doctrine, CalTrans and CalFire are both state agencies,
and thus “it is the State of California which is the employer with the right of control over
employees of both” CalFire and CalTrans. (Colombo v. State of California (1991) 3
Cal.App.4th 594, 598 [California Highway Patrol (CHP) traffic officer is an employee of
the State of California, not CHP; lawsuits against state agencies “are in effect suits
against the state”].) Accordingly, although CalFire contracted with plaintiffs’ contractor-
employers, and plaintiffs’ complaints asserted causes of action against CalTrans, it is the
state that is properly considered to be both the hirer and alleged negligent party.
With that understanding, we turn to the application of the Privette doctrine.
Plaintiffs contend that the doctrine does not bar their dangerous condition causes of
action because it only insulates hirers from vicarious liability for breach of the duty to
provide a safe workplace. They contend the doctrine does not apply here because they
seek to hold CalTrans directly liable for breach of a different duty: its duty to mitigate
the potential for and severity of fires by properly maintaining vegetation along the
shoulders of roads it controls.
As we have discussed, the Privette doctrine generally bars a contractor’s employee
from recovering damages from the hirer of the contractor for a worksite injury (SeaBright
Ins. Co. v. US Airways, Inc., supra, 52 Cal.4th at p. 594), even where the hirer has
created the dangerous condition (Sandoval, supra, 12 Cal.5th at p. 276; see McCullar,
supra, 83 Cal.App.5th at pp. 1016, 1017 [“[E]ven when the hirer of a contractor
negligently creates a known workplace hazard, [our Supreme Court] has concluded that
the contractor still retains the responsibility for assessing whether its workers can perform
15
their work safely”]; Marin v. Department of Transportation (2023) 88 Cal.App.5th 529,
541 [Privette doctrine barred claim that government agency created a dangerous
condition under Gov. Code, § 835].) As our Supreme Court has explained, the hirer that
delegates control to the contractor also delegates “all tort duties the hirer might otherwise
owe the contract workers.” (Sandoval, at p. 271.) In that circumstance, “[w]hatever
reasonable care would otherwise have demanded of the hirer, that demand lies now only
with the contractor. If a contract worker becomes injured after that delegation takes
place, we presume that the contractor alone—and not the hirer—was responsible for any
failure to take reasonable precautions.” (Ibid.)
In their reply brief and at oral argument, plaintiffs rely on Flournoy v. State of
California (1969) 275 Cal.App.2d 806, but that case is distinguishable. In Flournoy, a
woman died after losing control of her car on an icy bridge, and her heirs sued the state
for creating a dangerous condition and for failure to post any warning signs. The trial
court granted the state’s motion for summary judgment on the basis that it was
immunized from liability for public works built according to a preapproved design
(design immunity). The appellate court reversed. It concluded that the state had failed to
establish a prerequisite for design immunity, and, in any event, the plaintiffs were entitled
to pursue their claim for failure to warn because design immunity is limited to a design-
caused accident and does not immunize from liability caused by negligence independent
of design. (Id. at pp. 811, 812, 814.) But here, unlike Flournoy, under the Privette
doctrine a hirer presumptively delegates to the contractor-employer all tort duties that it
might otherwise owe to a contractor-employer’s employee. (Sandoval, supra, 12 Cal.5th
at pp. 270, 271.)
Adopting a rule that Privette could not apply to a hirer who created a dangerous
condition would undermine one of the principles underlying the doctrine, which is
“rooted” in part on “society’s need for clear rules about who’s responsible for avoiding
harms to workers when contractors are hired.” (Sandoval, supra, 12 Cal.5th at p. 264.)
16
For example, a contractor should not second-guess its responsibility to address a
workplace hazard simply because it believes the hirer created the dangerous condition.
Instead, a contractor aware of a hazard should simply take necessary precautions to
protect its workers from the hazard. (See Gonzalez v. Mathis, supra, 12 Cal.5th at p. 44
[“once the contractor becomes aware of a concealed hazard’s existence, it becomes the
contractor’s responsibility to take whatever precautions are necessary to protect itself and
its workers from the hazard”].)
We agree that the Privette doctrine bars claims against the hirer where the hirer is
vicariously liable for the injuries suffered by the contractor’s employee. Our Supreme
Court has explained that Privette and its progeny bar claims against the hirer only where
the hirer “delegates all control over the contracted work, and with it all concomitant tort
duties, by entrusting work to a contractor.” (Sandoval, supra, 12 Cal.5th at p. 270.) A
hirer may still be held liable where “the hirer’s conduct has affirmatively contributed to
the injuries of the contractor’s employee.” (McKown v. Wal-Mart Stores, Inc. (2002) 27
Cal.4th 219, 225.) In such instances, “the liability of the hirer . . . is not in essence
vicarious or derivative in the sense that it derives from the act or omission of the hired
contractor.” (Ibid.) However, as we have explained, our Supreme Court has identified
two circumstances in which the hirer of an independent contractor may be held directly
liable for affirmatively contributing to plaintiffs’ injuries: the exceptions stated in
Hooker and Kinsman. Plaintiffs contend that CalTrans may be held liable under both of
these exceptions to the Privette doctrine.
D. Application of the Hooker and Kinsman Exceptions to the Privette Doctrine to
Plaintiffs’ Claims
Plaintiffs argue that CalTrans negligently exercised retained control (Hooker) by
“retain[ing] control over fire safety,” and that CalTrans failed to warn their contractor-
employers of a concealed hazard (Kinsman) because it had the duty to “act as eyes and
17
ears regarding the progression of the fire” and “to warn bulldozer operators” if “they . . .
needed to evacuate.”
The SAC and the heirs’ wrongful death claim included substantial allegations
regarding CalFire’s role. The SAC alleged that CalFire’s role “was simply to advise
plaintiffs and their employers of the work that needed to be done, and act as eyes and ears
regarding the progression of the fire. However, [CalFire] did not control plaintiffs and
their employers or the work they performed beyond mere suggestion of details or
cooperation.”4 The SAC provided a detailed list of the myriad ways CalFire did not
exercise control over their work: “a. Cal Fire did not exercise control over the details of
plaintiffs’ work or how it was to be completed or performed; [¶] b. Plaintiffs’ private
employers were required to obtain and maintain their own worker’s compensation
insurance coverage for plaintiffs -- it was not provided by Cal Fire; [¶] c. Plaintiffs
retained discretion to decide how to complete their job based on their special skills and
experience; [¶] d. Plaintiffs only assisted Cal Fire for a short period of time on the Carr
Fire, and it was not a long term arrangement; [¶] e. Plaintiffs were not performing Cal
Fire’s firefighting work -- but, rather, were engaged in their primary profession of dozer
operation building contingency lines; [¶] f. Plaintiffs and their employers continued to
manage their own crews and teams -- Cal Fire merely advised where work needed to be
done, but did not control the details; [¶] g. If plaintiffs received conflicting information
from Cal Fire and their private employers, plaintiffs would follow their private employers
instructions; [¶] h. Plaintiffs still believed and understood they were working for private
employers who [were] simply assisting Cal Fire; [¶] i. Plaintiffs and their private
employers retained control over the hours plaintiffs worked; [¶] j. Plaintiffs relied almost
exclusively on their private employers’ tools and equipment; [¶] k. Plaintiffs had the
4 The heirs’ cause of action was substantively identical.
18
option of refusing any activity asked of them; [¶] l. Cal Fire did not have the ability to
terminate plaintiffs’ employment; [¶] m. Cal Fire did not pay plaintiffs, rather they
remained on their private employers’ payroll; [¶] n. Cal Fire did not offer or provide any
benefits, including worker’s compensation benefits, to plaintiffs.”5
Contrary to plaintiffs’ contention, the operative complaints do not include the
allegation that CalFire had the duty to warn bulldozer operators if they needed to
evacuate. The SAC deleted all references to a failure to warn, and the heirs’ wrongful
death cause of action did not allege a duty to warn bulldozer operators of the need to
evacuate. The allegation that CalFire had the duty to warn bulldozer operators if they
needed to evacuate appears in Donald’s and Cummings’s Government Claims Act forms,
which were attached to the SAC. The heirs attached as an exhibit to their fourth amended
complaint only a letter from the state rejecting their application for leave to present a late
claim, which did not include substantive allegations.
Generally, when a written document is the foundation of a cause of action or
defense and is attached to the complaint as an exhibit and incorporated into it, “ ‘the court
may, upon demurrer, examine the exhibit and treat the pleader’s allegations of its legal
effect as surplusage.’ ” (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 785-786; see
SCEcorp v. Superior Court (1992) 3 Cal.App.4th 673, 677.) However, “[i]t is equally
well established that an instrument which is made part of the complaint by reference and
attached as an exhibit, but which does not constitute the contract upon which the
complaint is based, may not supply substantial allegations essential to the statement of a
cause of action unless the pleading is framed for that purpose and with that end in view.”
(Holly Sugar Corp. v. Johnson (1941) 18 Cal.2d 218, 226; see Washer v. Bank of
America Nat. Trust & Savings Assn. (1943) 21 Cal.2d 822, 830 [“[A]n instrument which
5 The heirs’ cause of action differed slightly in the order of the items in the list but
included essentially the same allegations.
19
is not the basis of a cause of action or defense falls in a different category; the pleading of
such a document as an exhibit is only an assertion of its existence and character”].)
Here, the SAC incorporated the two Government Claims Act forms not as a means
of setting forth the grounds upon which plaintiffs rested their claim, but rather merely as
evidence of compliance with the government tort claims statutes as a condition precedent
to the maintenance of this action. (Gov. Code, § 945.4 [“no suit for money or damages
may be brought against a public entity on a cause of action for which a claim is required
to be presented in accordance with . . . [§] 910 . . . until a written claim therefor has been
presented to the public entity and has been acted upon by the board, or has been deemed
to have been rejected by the board”].) Paragraph 7 of the SAC alleged that plaintiffs
“complied with all administrative claim requirements prior to filing this Complaint,” and
in a subparagraph to that paragraph alleged that plaintiffs timely submitted their fully-
executed Government Claims Act forms, attaching the forms as exhibits and
incorporating them by reference. But aside from attaching the documents as
confirmation that they had submitted the forms, plaintiffs provided no indication of their
intent to use the Government Claims Act forms as a means of setting forth the grounds
upon which they rested their claims. Accordingly, we do not consider the factual
allegations recited in the Government Claims Act forms but not included in the
complaint.
Considering only the well-pleaded allegations set forth in the operative
complaints, the allegation that CalFire’s role was to “act as eyes and ears regarding the
progression of the fire” falls well short of alleging that CalFire employees negligently
exercised retained control over plaintiffs’ work. First, the allegation that CalFire was
expected to monitor the progression of the fire does not suggest that it retained control
over “fire safety,” as plaintiffs contend. Rather, as we have set forth ante, the operative
complaints took great pains to specify in detail the extent to which CalFire did not
exercise any control over the details of plaintiffs’ work, additionally alleging that
20
plaintiffs retained control over how they completed their jobs, plaintiffs’ contractor-
employers continued to manage their own crews and teams, plaintiffs would follow their
employers’ instructions to the extent they conflicted with those of CalFire, and plaintiffs
could refuse any activity CalFire asked of them. The operative complaints do not allege
CalFire had the responsibility to warn or evacuate plaintiffs in the event the fire
approached their worksite.
Nor do plaintiffs’ complaints allege that CalFire “ ‘ “actually exercise[d]” its
retained control over the contracted work’ ” by involving itself in the contracted work
“ ‘ “such that the contractor is not entirely free to do the work in the contractor’s own
manner.” ’ ” (McCullar, supra, 83 Cal.App.5th at p. 1014.) Again, the operative
complaints forcefully and thoroughly alleged that CalFire was not involved in the
contracted work, and the vague allegation that CalFire monitored the progress of the fire
does not constitute an allegation that it retained and exercised control over safety
measures at the worksite.
Finally, the operative complaints failed to allege that CalFire’s conduct as the
entity monitoring the fire affirmatively contributed to plaintiffs’ injuries. The complaints
did not allege that CalFire was responsible for warning, and failed to warn, plaintiffs of
the approaching fire; indeed, the SAC expressly deleted allegations from the FAC that
CalFire failed to have a clear evacuation plan in place, failed to communicate evacuation
orders, and failed to evacuate persons at risk of injury. Generally, “ ‘[a]n amended
complaint “supersedes the original and furnishes the sole basis for the cause of action.
[Citations.] The original complaint is dropped out of the case and ceases to have any
effect as a pleading, or as a basis for a judgment.” ’ ” (Bassett v. Lakeview Inn, Inc.
(2006) 140 Cal.App.4th 863, 869-870.)6
6 There is an exception to this general rule where “ ‘ “an amended complaint attempts to
avoid defects set forth in a prior complaint by ignoring them. The court may examine the
21
Plaintiffs also argue that the concealed hazard exception (Kinsman) applies here
because CalFire employees “fail[ed] to disclose critical information needed” for “the
safety of [the] employees” (Kinsman, supra, 37 Cal.4th at pp. 673-674) because it was
their duty to “ ‘act as eyes and ears regarding the progression of the fire,’ and ‘to warn
bulldozer operators’ if ‘they . . . needed to evacuate.’ ” But although plaintiffs now argue
the concealed hazard was the approaching fire, the operative complaints alleged that the
dangerous condition was the state of the inadequately maintained vegetation on and near
a road that CalTrans owned or controlled. The complaints did not allege that CalFire or
CalTrans concealed the dangerous condition that was alleged in the complaints (the
inadequately maintained vegetation), that plaintiffs or their contractors-employers were
unaware of the alleged dangerous condition, or that the dangerous condition was not
reasonably ascertainable. Indeed, plaintiffs’ contractor-employers contracted with
CalFire for the purpose of clearing vegetation in order to create containment lines,
indicating that plaintiffs and their employers were well aware of the state of the
vegetation.
Moreover, even were the approaching fire properly considered the dangerous
condition that was properly pleaded as such, there is nothing to suggest that the
approaching fire was a preexisting hazardous condition, as opposed to a hazardous
condition that developed after plaintiffs had begun working to create the containment
lines. (See Kinsman, supra, 37 Cal.4th at p. 675 [concealed hazardous condition must be
preexisting].) Nor do the complaints allege that plaintiffs or their contractor-employers
prior complaint to ascertain whether the amended complaint is merely a sham.” ’ ”
(Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343.) “ ‘The sham
pleading doctrine is not “ ‘intended to prevent honest complainants from correcting
erroneous allegations . . . or to prevent correction of ambiguous facts.’ ” [Citation.]
Instead, it is intended to enable courts “ ‘to prevent an abuse of process.’ ” ’ ” (Id. at p.
344.) We do not construe the revisions to the operative complaints as an abuse of
process, but rather as a clarification of the facts plaintiffs wish to present.
22
were unaware of the approaching fire, or that CalFire failed to warn the contractor-
employers. (See ibid. [exception requires that the contractor neither know nor be able to
reasonably ascertain the condition and that the landowner fail to warn the contractor].)
The well pleaded allegations in the operative complaints clearly disclose that the
Privette doctrine applies here because the injuries were sustained by employees of
contractor-employers seeking to pursue claims against the hirer of the contractor-
employers, and plaintiffs’ allegations regarding the hirer’s role clearly demonstrate the
inapplicability of the exceptions to the doctrine. Accordingly, plaintiffs’ claims are
barred by the Privette doctrine.7
7 Plaintiffs do not argue that they are entitled to leave to amend, and therefore they have
forfeited the issue. (See PGA West Residential Assn., Inc. v. Hulven International, Inc.
(2017) 14 Cal.App.5th 156, 188-189 [raising request for leave to amend for the first time
at oral argument forfeited the issue].) In any event, they have failed to satisfy their
burden to show that they are entitled to leave to amend. (See Rakestraw v. California
Physicians’ Service (2000) 81 Cal.App.4th 39, 43 [to satisfy their burden on appeal, “a
plaintiff ‘must show in what manner he can amend his complaint and how that
amendment will change the legal effect of his pleading’ ”]; Smith v. BP Lubricants USA
Inc. (2021) 64 Cal.App.5th 138, 145 [on appeal, plaintiff must “ ‘enumerate the facts and
demonstrate how those facts establish a cause of action’ ”].) We note that, after the case
was submitted, plaintiffs requested leave to file supplemental briefing to argue for leave
to amend as well as to argue the exceptions to the Privette doctrine apply. We denied
that request because plaintiffs had the opportunity to, but did not, argue for leave to
amend in their briefing; further, plaintiffs had the opportunity to, and did, brief the
applicability of the Privette doctrine and its exceptions. (See People v. Alice (2007) 41
Cal.4th 668, 679 [Gov. Code, § 68081 only requires that parties have been given an
opportunity to brief the issue decided by the court]; Gee v. Greyhound Lines, Inc. (2016)
6 Cal.App.5th 477, 487, fn. 6 [quoting Alice].)
Because we conclude plaintiffs’ claims are barred under the Privette doctrine, we
need not and do not address the parties’ arguments regarding whether CalTrans entered
into a “special employment” relationship with plaintiffs or whether plaintiffs’ claims are
barred under the primary assumption of the risk doctrine.
23
III
Appealability of Order Sustaining Demurrer with Leave to Amend
The heirs contend they are entitled to appellate review of the order sustaining
CalTrans’s demurrer, with leave to amend, as to the sixth cause of action (violation of a
mandatory duty) in the Baker case (the class action arising from the Carr fire referenced
above). As we next explain, we disagree.
A. Background
The sixth cause of action in the Baker case alleged that CalTrans breached its
mandatory duty under section 304 of the California Fire Code, causing damages. Section
304.1.1 provides: “Accumulations of wastepaper, wood, hay, straw, weeds, litter or
combustible or flammable waste or rubbish of any type shall not be permitted to remain
on a roof or in any court, yard, vacant lot, alley, parking lot, [or] open space . . . .”
(Italics added.) Fire Code section 304.1.2 provides in relevant part: “Weeds, grass,
vines, or other growth that is capable of being ignited and endangering property, shall be
cut down and removed by the owner or occupant of the premises.”
CalTrans separately demurred to the mandatory duty claim and the heirs’ wrongful
death claim. It demurred to the mandatory duty claim on the basis that Fire Code
sections 304.1.1 and 304.1.2 did not support a valid claim for violation of a mandatory
duty of the state. Specifically, it argued that establishing public entity liability under
Government Code section 815.6 required, as relevant to the demurrer, a showing that “a
mandatory duty was imposed on the public entity by an enactment,” citing B.H. v. County
of San Bernardino (2015) 62 Cal.4th 168, and Guzman v. County of Monterey (2009) 46
Cal.4th 887.8 CalTrans further argued that such a mandatory duty exists only if the
8 Government Code section 815.6 provides that a public entity is not immune from
liability where the 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
24
enactment “ ‘affirmatively imposes the duty and provides implementing guidelines,’ ”
citing O’Toole v. Superior Court (2006) 140 Cal.App.4th 488. According to CalTrans,
because Fire Code sections 304.1.1 and 304.1.2 did not set out rules and guidelines for
implementation by CalTrans and did not name CalTrans, and no case imposed a
mandatory duty on any public entity, the statutes did not impose a mandatory duty on it.
In sustaining CalTrans’s demurrer, the trial court agreed that Fire Code sections
304.1.1 and 304.1.2 did not impose a mandatory duty. The court observed that the Fire
Code did not contain provisions mandating enforcement by CalTrans or any other state
agency, and the Legislature did not grant enforcement powers, leading to the conclusion
that the Legislature did not compel enforcement by the state. Nor did Fire Code sections
304.1.1 and 304.1.2 contain directives to any particular agency.
The trial court granted the Baker case plaintiffs 20 days’ leave to amend the
mandatory duty claim. In entering its judgment of dismissal following the sustaining of
the demurrer as to the heirs’ wrongful death claim, the court ordered that the heirs’
wrongful death claim be dismissed with prejudice and that the heirs be stricken from the
paragraphs in the complaint related to damages sought for Smith’s death. The mandatory
duty claim was not dismissed with prejudice, and the heirs have not been dismissed from
the Baker case.
B. Analysis
“Under the one final judgment rule, ‘ “an appeal may be taken only from the final
judgment in an entire action.” ’ [Citation.] ‘ “The theory [behind the rule] is that
piecemeal disposition and multiple appeals in a single action would be oppressive and
costly, and that a review of intermediate rulings should await the final disposition of the
case.” ’ [Citations.] [¶] The one final judgment rule is ‘a fundamental principle of
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.”
25
appellate practice’ [citation], recognized and enforced in this state since the 19th
century.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756.)
Generally, an order sustaining a demurrer with leave to amend is not an appealable
order. (Code Civ. Proc., § 904.1; Otworth v. Southern Pac. Transportation Co. (1985)
166 Cal.App.3d 452, 457.) Instead, an “ ‘order sustaining a demurrer . . . is generally
reviewable on appeal from the final judgment in the action.’ ” (Singhania v. Uttarwar
(2006) 136 Cal.App.4th 416, 425.)
The heirs argue that they asserted the mandatory duty claim in their wrongful
death action, and therefore the trial court’s order dismissing their wrongful death claim
also dismissed their mandatory duty claim. Accordingly, they contend that the judgment
of dismissal as to their wrongful death claim also constituted a judgment of dismissal of
their mandatory duty claim. We disagree. By its plain terms, the trial court’s order
sustaining the demurrer as to the mandatory duty claim expressly stated that the demurrer
was “sustained with 20 days leave to amend.” The court’s judgment of dismissal
expressly dismissed with prejudice only the wrongful death claim. There has been no
“ultimate order of dismissal” of the mandatory duty claim or “final judgment in the main
action.”
The heirs also argue that the trial court’s order as to the mandatory duty claim is
reviewable under Code of Civil Procedure section 906, which provides that the reviewing
court, upon an appeal from a final judgment, may review the appealable decision “and
any intermediate ruling, proceeding, order or decision which involves the merits or
necessarily affects the judgment or order appealed from or which substantially affects the
rights of a party.” Thus, the issue is whether the order as to the mandatory duty claim
“involve[d] the merits,” “necessarily affect[ed]” the judgment of dismissal, or
substantially affected the rights of a party. We conclude it did not.
First, the trial court’s order regarding the mandatory duty claim did not involve the
merits of the order from which the heirs appealed. The trial court’s ruling on the
26
mandatory duty claim concluded that Fire Code sections 304.1.1 and 304.1.2 did not
impose a mandatory duty on CalTrans to clear vegetation from spaces it controlled. The
court’s discussion of the mandatory duty claim was entirely separate from the order
appealed from, in which the court concluded the heirs were barred from bringing claims
against the hirer of Smith’s contractor-employer based on the Privette doctrine.
Second, the order sustaining the demurrer to the mandatory duty claim does not
necessarily affect the order appealed from. The order appealed from concluded that the
heirs were barred from bringing their claims against the hirer of Smith’s contractor-
employer. That conclusion would stand whether or not CalTrans had a mandatory duty
to clear vegetation for reasons we discussed ante.
Third, we will not review the interlocutory order on the basis that the order
“substantially affects the rights of a party.” (Code Civ. Proc., § 906.) Section 906 “does
not apply to interim orders that are unrelated to the appealable judgment or order from
which an appeal is taken.” (Lopez v. Brown (2013) 217 Cal.App.4th 1114, 1132-1133.)
“ ‘The clear import of [section 906] is to allow an appellate court to review rulings,
orders, or other decisions that led up to, or directly related to, the judgment or order being
appealed to the extent they substantially affected the rights of one of the parties to the
appeal . . . . [¶] Therefore, nonappealable orders or other decisions substantively and/or
procedurally collateral to, and not directly related to, the judgment or order being
appealed are not reviewable pursuant to section 906 even though they literally may
“substantially affect[ ]” one of the parties to the appeal.’ ” (Id. at p. 1135.) “[A] contrary
interpretation ‘could allow one party to the direct appeal to, in colloquial terms, “open the
floodgates” and bring into the appeal all sorts of collateral or other unrelated intermediate
decisions that do not affect the other party to the appeal or the appealed decision, thereby
potentially increasing exponentially the issues to be addressed on appeal and the use of
limited judicial resources to decide those issues.’ ” (Ibid.) The heirs have failed to
present any argument as to how their rights or the rights of any other party will be
27
substantially affected if we do not review the interlocutory order. In the absence of any
indication that any party’s rights will be substantially affected, we decline to review the
order on that basis.
Based on the foregoing, we dismiss the heirs’ appeal of the trial court’s
interlocutory order sustaining CalTrans’s demurrer to the mandatory duty claim with
leave to amend. The plaintiffs in the Baker case are entitled to decide whether to seek to
file an amendment addressing the ground on which the demurrer was sustained and, if no
amendment is filed, for the entry of an order or judgment of dismissal. (See Sisemore v.
Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
28
DISPOSITION
The judgment sustaining the demurrers to the SAC and to the heirs’ wrongful
death cause of action without leave to amend is affirmed. The heirs’ appeal of the trial
court’s order sustaining with leave to amend the Baker case’s sixth cause of action for
breach of mandatory duty is dismissed. CalTrans shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a).)
/s/
Duarte, Acting P. J.
We concur:
/s/
Krause, J.
/s/
Boulware Eurie, J.
29