Atabey v. City of San Bernardino

Filed 5/16/06  Atabey v. City of San Bernardino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Donald R. Alvarez, Judge.  Affirmed.

            Lozoya & Lozoya, Frank J. Lozoya and Robin J. Lozoya for Plaintiff and Appellant.

            James F. Penman, City Attorney, and Suzanne M. Bryant, Deputy City Attorney for Defendant and Respondent.

            Plaintiff Donna Atabey, individually and as representative of the Estate of Gregory Abdun-Nur, and the Estate of Gregory Abdun-Nur (referred to collectively as plaintiff) sued the City of San Bernardino (City) and other defendants, who are not parties to this appeal, for damages arising from Gregory Abdun-Nur's death in a hotel fire.  Plaintiff's three causes of action against the City include negligence, nuisance, and a survival action.  The claims are based on the City allowing the Sunset Hotel to operate despite numerous code violations and failing to abate numerous known fire hazards and unsafe conditions which led to the hotel catching on fire and decedent's death.

            Plaintiff appeals the judgment of dismissal following the trial court sustaining, without leave to amend, City's demurrer to the fourth amended complaint.  The trial court concluded plaintiff had not alleged mandatory duty liability under Government Code^[1] section 815.6 and that the City was immune from liability under section 818.6, which provides immunity for failing to inspect, or negligent inspection of, property.

            Plaintiff contends she alleged, or could amend to allege, valid negligence and nuisance causes of actions against the City.  Because we conclude plaintiff's action against the City is barred by inspection immunity under section 818.6, we affirm the trial court's ruling.

1.  Factual and Procedural Background

            Plaintiff Donna Atabey's son, Gregory Abdun-Nur (decedent), died in a fire at the Sunset Hotel on December 28, 2002.  Donna Atabey and decedent's estate sued the City and the County of San Bernardino, as well as the hotel and the owner of the hotel.  The only causes of action alleged against the City in the fourth amended complaint, the operative complaint (complaint), consist of the fifth cause of action entitled, â€