1

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF TRANSPORTATION,

Defendant and Respondent.

C096220

(Super. Ct. Nos. 192661, 

192674)

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. 
2

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 
3

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 
4

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. 
5

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 
6

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 
7

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.) 
8

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).) 
9

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 
10

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 
11

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 
12

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. 
13

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 
14

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 
15

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’ contractoremployers, 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 
16

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 designcaused 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.) 
17

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 contractoremployers of a concealed hazard (Kinsman) because it had the duty to “act as eyes and 
18

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. 
19

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. 
20

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 fullyexecuted 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 
21

plaintiffs retained control over how they completed their jobs, plaintiffs’ contractoremployers 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 
22

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. 
23

were unaware of the approaching fire, or that CalFire failed to warn the contractoremployers. (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 contractoremployers, 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. 
24

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 
25

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.”
26

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 
27

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 contractoremployer. 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 
28

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.)
29

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.