Avedon v. State of California (Tort Claims)
Second District Court of Appeals of California, Division Four
Case No. B217827, Filed July 26, 2010

Court Sustains Demurrer against Action filed by Fire Victims, Dismisses Case

The issue stemmed from a lawsuit filed by Priscilla Avedon and other property owners whose homes were destroyed or damaged in a 2007 fire at Corral Canyon. The lawsuit was filed against the State of California on theories of dangerous condition of public property and nuisance.

Court records show that the fire started on the night of November 23, 2007 when some individuals built a bonfire inside a cave in Malibu Creek State Park. The fire burned down the surrounding hills and spread through Corral Canyon. The fire burned nearly 5,000 acres and destroyed more than 50 homes and other properties.

As a result, property owners filed claims with the California Victim Compensation and Government Claims Board, which was eventually rejected by the board.

The victims then brought the case against the State of California based on the ground that the Malibu Creek State Park is owned, maintained, and operated by the State. The park is popular for late-night parties and bonfires; it is accessible by several roads but all the sides are enclosed by rock walls.

According to the complainants, the park, especially the cave, is littered with garbage. Corral Canyon residents said they have notified the State many times in the past about the danger created by bonfires in the area but the State allegedly did not take any measures to their complaints.

In the complainant’s first cause of action, they charged that the State “maintained its property in such as a way that it created a substantial risk of injury and damage to surrounding properties”. Further, they claimed that the State maintained this dangerous condition by allowing access to the caves.

In the second, the complainants alleged that the “nuisance of a severe fire hazard” by allowing unrestricted and easy access to the “top of the Corral Canyon Road and the cave”.

The group said these negligent actions resulted in the fire that destroyed their homes and properties.

In response, the State filed a demurrer to the first amended complaint with leave to amend, which the trial court sustained. The trial court also sustained the demurrer to the second complaint without leave to amend. The trial court therefore dismissed the action with prejudice.

The complainants filed an appeal.

During appeal, the Second District Court of Appeal concluded that the complainants cannot proceed on their claim for dangerous condition of public property, and similarly cannot proceed with the nuisance claim (El Escorial Owners' Assn. v. DLC Plastering, Inc., supra, 154 Cal.App.4th at p. 1348.).

The appeals court said that the “independent viability” of the nuisance claim depend on the facts of each case and in cases where negligence and nuisance claims rely both on the same facts about the lack of due care, the court said, the nuisance claim is a negligence claim (Id. at p. 1349.)(Melton v. Boustred (2010) 183 Cal.App.4th 521, 542.)

Further, the court said that Malibu Creek State Park under Public Resources Code section 5001 et seq., is authorized to operate the park, including allowing the access to the cave and the road and therefore a nuisance a nuisance claim cannot be predicated on these actions.

The Second District Court of Appeal therefore affirmed the trial court’s judgment on the demurrer without leave to amend and dismissed the case.