Judge Ashfaq G. Chowdhury, Case Number: 25NNCV00709, Date: 2025-05-09 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 25NNCV00709, Date: 2025-05-09 Tentative Ruling

Hearing Date: 03/20/2025 – 8:30am
Case No. 24NNCV03633
Trial Date: UNSET
Case Name: GUISHENG XU, an individual, v. JIAQI HAN, an individual; FUZHOU LIU, an individual; YINMING LIU, an individual; FIRST STOP AUTO LLC, a California limited liability company; and DOES 1 to 10, inclusive

TENTATIVE RULING ON MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT

RELIEF REQUESTED¿¿¿
“Defendant YINMING LIU will and hereby does move this court for an order vacating and setting aside the default entered on October 11, 2024, and subsequent default judgment entered on February 4, 2025, on the grounds:

a) the Summons and Complaint purportedly served on him by substituted service on August 27, 2024, were not properly served on him and hence the default and default judgment are void;

b) alternatively, on the grounds set forth in Code of Civil Procedure section 473.5.

A copy of Defendant’s proposed Demurrer is attached to this Motion as Exhibit “C.”

The relief requested by this Motion is based upon this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the declarations of Defendant Yinming Liu and Eugene R. Long, all pleadings and documents currently on file with the Court as well as such other oral or documentary evidence as may be presented at the time of hearing on this Motion.”

(Def. Mot. p. 2.)

PROCEDURAL

Moving Party: Defendant, Yinming Liu (Defendant or Movant)

Opposing Party: Plaintiff, Guisheng Xu

Proof of Service Timely Filed (CRC, Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Moving Papers: Notice/Motion [filed 2/10/2025]; Amended Notice/Motion [filed 2/24/2025];

Opposition Papers: Opposition

Reply Papers: Reply

BACKGROUND

Plaintiff, Guisheng Xu, filed the instant action on 8/19/2024 against Defendants – (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, (4) First Stop Auto LLC, a California limited liability company, and (5) Does 1 to 10, inclusive.

Entry of default was entered against all of the non-Doe Defendants on 10/11/2024.

Does 1 to 10 were dismissed from the Complaint on 10/29/2024.

On 02/04/2025, default judgment was entered against (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, and (4) First Stop Auto LLC, a California limited liability company.

For purposes of this hearing, the Court considers Defendant, Yinming Liu’s, amended notice/motion filed on 2/24/2025 and not the earlier filed notice/motion that was filed on 2/10/2025.

ANALYSIS
Preliminary Matter

In the instant action, Plaintiff filed four proofs of substituted service on 8/29/2024 for all of the named Defendants in this action.

Moving Defendant, Yinming Liu, moves for an order to vacate and set aside the default and default judgments entered against him on the basis that he was not properly served.

Movant appears to move pursuant to CCP § 473(d), and in the alternative, § 473.5.

The Court notes that neither party’s papers is a model of clarity. For example, neither party makes clear why § 473(d) or § 473.5 is or is not the appropriate statute to move under to vacate the default/default judgment. Generally speaking, Defendant argues that service upon him was improper, and Plaintiff argues that service upon Defendant was proper. To the Court, this motion appears to be akin to a motion to quash service of summons. Either way, since Defendant’s motion does not make clear why § 473(d) or § 473.5 is the appropriate statute, and since Plaintiff did not oppose Defendant’s motion on the grounds that those two statutes are not the proper statutes, the Court will assume Defendant moved under the proper statute.

Substantive

On 8/29/2024, Plaintiff filed a proof of service of summons that alleged substituted service on Defendant, Yinming Liu, on 8/27/2024.

Defendant, Yinming Liu, argues that service upon him was not proper.

Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.)

As to how Defendant believes that service upon him was improper is not entirely clear. Many times Defendant asserts arguments without citing legal authority. Or at times, Defendant will make reference to legal authority, but in no clear manner does Defendant explain how his argument is tied to the legal authority that he cited.

For example, Defendant first appears to argue that service upon him was not valid because Plaintiff did not personally serve him.

The argument that service was improper because Defendant was not personally served appears to be unavailing for several reasons.

First, Plaintiff’s proof of service lists service upon Defendant via substituted service; it does not list service upon Defendant via personal service.

Second, it does not appear that Defendant has to be personally served, because substituted service is an alternative to personal service.

As explained in American Express Centurion Bank v. Zara:

The Code of Civil Procedure specifies the various methods by which service may be made upon defendants who are sued as individuals.

The method described as “personal service” means service that is accomplished “by personal delivery of a copy of the summons and of the complaint to the person to be served.” (§ 415.10.) If the complaint and summons were personally delivered to, i.e., handed to, defendant then he could be said to have been “personally served.”

A defendant may also be “personally” served by delivering a copy of the summons and complaint to an agent authorized to accept service on behalf of that defendant. (§ 416.90; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶¶ 4:128 to 4:132, pp. 4–19 to 4–21; (rev. # 1, 2010) ¶ 4:184, p. 4–27 (rev. # 1, 2004) (hereafter Weil & Brown, Civil Procedure Before Trial).) An authorized agent might include, for example, an attorney who has been expressly authorized to accept service, or a sheriff or jailer having custody of a prisoner. (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:128, p. 4–19, ¶¶ 4:130.2, 4:132, pp. 4–20 to 4–21.)

Another alternative available for serving individual defendants is what is commonly known as “substitute service.” Substitute service on an individual is accomplished by “leaving a copy of the summons and complaint **103 at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address ..., at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” (§ 415.20, subd. (b).)

However, an individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint “cannot with reasonable diligence be personally delivered” to the individual defendant. (§ 415.20, subd. (b); Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801, 152 Cal.Rptr. 836.) Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “ ‘reasonable diligence.’ ” (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:196, p. 4–30.)

(American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Thus, Defendant’s argument that service was improper because he was not personally served is unavailing.

Substituted Service – Usual Place of Business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Further, Plaintiff’s proof of service checks a box for substituted service via business to “a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served.” The proof of service also indicates that the documents were left with “Jane Doe – Angela, refused last name (Gender: F Age: 35 Height : 6’0” Weight: 120 Race: Asian American Hair: Black Other: Hazel Eyes) Manager.”

Under CCP § 415.20(b), substitute service is effectuated when:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(CCP § 415.20(b).)

Defendant appears to be arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” and because service was not left with “a person apparently in charge of his or her office, place of business, or usual mailing address.”

Attached to the motion, the declaration of Defendant Yinming Liu is attached.

In relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic] by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

3. The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business. The building does not have any front desk person or onsite management office. The corporate defendant First Stop Auto LLC is a dormant entity with no revenue, employees, or operations. It does not have any manager, employees, or representatives at that address.

4. I first became aware of this lawsuit on January 2, 2025, upon receipt of a WeChat message from defendant Fuzhou Liu. A review of the lawsuit revealed that it concerns a dispute concerning an unpaid loan of $50,000 between two individuals, Plaintiff and Mr. Fuzhou Liu. It has nothing to do with me as an individual or the corporate defendant, First Stop Auto LLC.

5. On February 4, 2025, I appeared at the Court and sought to express my position to the Court. The Court advised me that it cannot give me any legal advice and the only advice to me was to retain a lawyer to file a motion for relief. Accordingly, I have retained the law firm of WHGC, PLC to file this Motion.

(Liu Decl. ¶¶ 2-5.)

To the extent that Defendant is arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” Defendant’s declaration appears to address this in ¶ 3 of the Liu declaration wherein Liu states, “The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business.” (Liu Decl. ¶ 3.)

In Opposition, Plaintiff argues that Defendant Yinming Liu was in fact properly substitute served at his “usual place of business.” Plaintiff argues that Liu is making misrepresentations to the Court and that the 314 Garvey address is in fact Liu’s “usual place of business.”

To support this argument, Plaintiff attaches the declaration of Plaintiff’s attorney (Tom F.Y. King), along with Exhibits A-E cited in King’s declaration.

King states as follows:

2. In or about August 2024, I searched, downloaded, and printed a statement of information filed with California Secretary of State filed by Yinming Liu on behalf First Stop Auto LLC on August 13, 2024. Attached hereto as Exhibit A is a true and correct copy of the statement of information I obtained from California Secretary of State website. It shows Yingming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC, located at 314 E Garvey Ave, Monterey Park, CA 91755.

3. Previously, before Yinming Liu filed the August 13, 2024 statement, I also searched and download a statement of information Yinming Liu filed with California Secretary of State the year before on July 5, 2023, which also shows Yinming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC located at 314 E Garvey Ave, Monterey Park, CA 91755. A true and correct copy of said statement is attached hereto as Exhibit B.

4. In January 2025, after the three individual defendants appeared in court to try to argue their case on January 16, 2025, I searched, found, and download from California Secretary of State website a statement of information filed by Yinming Liu on January 3, 2025 moving the company address to 797 E Arrow Hwy, Azusa, CA 91702, a copy of which is attached hereto as Exhibit C. I also found and downloaded a statement of information filed on January 16, 2025 by co-defendants Jiaqi Han moving the company address back to 314 E Garvey Ave, Monterey Park, CA 91755 and removing Yinming Liu's name from the company. A true and correct copy of said statement is attached hereto as Exhibit D.

5. As a result of the two successively filed statement of information First Stop Auto LLC filed with California Secretary of State in January 2025, all previously filed statement of information were purged from the public record. I inquired on this matter online and discovered that it is the policy of California Secretary of State to only keep the two most recently filed statement of information for an entity for public record. Attached hereto are search results from Google based on the search terms "California Secretary of State purging prior statement of information." The search result shows a general result followed by links to specific webpage results. Attached hereto as Exhibit E is a page from the general search result and a specific search results from California Secretary of State website.

(King Decl. ¶¶ 2-5.)

However, even assuming the truth of King’s declaration and the attached exhibits, Plaintiff’s argument is not on point and appears to miss the mark.

For example, to the extent that the California Secretary of State lists Yinming Liu as manager, member, CEO, and agent for service of process at the 314 E Garvey address, that information is applicable to First Stop Auto LLC. That information says nothing about the Defendant as an individual that is filing the instant motion. The instant proof of service that Defendant is arguing is improper is the proof of service as to the individual, Yinming Liu. Yinming Liu is arguing that the 314 address is not his usual place of business. At best, the information attached from the California Secretary of State would maybe seem to indicate that Yinming Liu could accept service at the 314 E Garvey address for First Stop Auto LLC since he was listed as agent of service of process for First Stop Auto LLC. However, to reiterate, that information says nothing about where Yinming Liu, the individual’s usual place of business is. At best, it may show where First Stop Auto LLC’s usual place of business is. Ultimately, First Stop Auto LLC is not moving to vacate default/quash service of summons. Here, moving Defendant is Yinming Liu the individual.

At best, maybe the successive filings with the Secretary of State tests Liu’s credibility for changing the address of First Stop Auto LLC and changing the name of the agent for service of process. However, again, even assuming there were bad faith, the Court fails to see how Plaintiff’s arguments addresses the usual place of business of the moving Defendant, Yinming Liu, the individual.

Despite all this, in Defendant’s Reply Defendant confusingly argues that even if 314 E Garvey were Liu’s place of business, service was not proper because the crucial question is whether service was proper where Plaintiff served an unknown individual at a location that housed several other businesses where there is no indication that the individual ever informed Liu of service.

Therefore, the Court will hear argument from the parties about the “usual place of business” of Defendant.

Substituted Service – Person Apparently in Charge of his or her office, place of business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Under CCP § 415.20(b), substitute service is effectuated when:

(CCP § 415.20(b).)

Defendant argues that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship.

Further, in relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic]by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

(Liu Decl. ¶¶ 2-5.)

Defendant’s argument – that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship – is confusing because it isn’t entirely clear what portion of § 415.20(b) Defendant is arguing that Plaintiff did not comply with.

Presumably, Defendant is trying to argue that “Jane Doe – Angela” was not “a person apparently in charge of his or her office, place of business,” and thus service was improper. Defendant’s declaration does not state that Jane Does/Angela was not “a person apparently in charge of his or her office or place of business” in any explicit terms. Instead, the Liu declaration states in relevant part, “I do not know this individual nor do I have any personal or business relationship with her.” (Liu Decl. ¶ 2.)

In Opposition, Plaintiff does not address Defendant’s argument regarding the individual that was allegedly served in any clear manner. Plaintiff’s Opposition seems to mainly contest that 314 E Garvey was in fact the usual place of business of Defendant. It seems like Plaintiff attempts to argue that Defendant is not credible based on the filing with the secretary of state because Defendant would know the people at the 314 E Garvey address because it is his address.

In Reply, Defendant argues that the key issue here is that Plaintiff served an unknown individual that housed several other businesses where there is no indication that the individual ever informed Liu of the service.

Here, the Court will hear argument. Defendant appears to be arguing, although not explicitly stated in Defendant’s motion or Defendant’s declaration, that “Jane Doe – Angela” was not a person apparently in charge of his or her office, or place of business. Opposition does not do much to contest this argument. Plaintiff’s Opposition seems to just be implying that Defendant would in fact know who Angela is because the 314 Garvey address is Defendant’s business. The Reply reiterates that Defendant has no idea who Angela is and that there is no evidence to suggest that she worked with or for Liu.

473.5

Under CCP § 473.5(a):

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(CCP § 473.5(a).)

Defendant argues that the Summons and Complaint did not result in actual notice to Liu for Liu to defend the action.

However, the Court notes that neither party’s arguments regarding § 473.5 adds any further substance to their arguments. Plaintiff’s arguments that Defendant did in fact have notice are based on the same arguments previously discussed, i.e., Plaintiff argues that Defendant is lying and in fact had notice because Defendant is/was CEO of First Stop Auto LLC which is located at 314 E Garvey.

Overall

Dill v. Berquist Construction Co. states:

It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper. (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770 [145 Cal.Rptr. 814], quoting from Judicial Council Rep., supra, com. to § 417.10, p. 56; but see Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 255, fn. 7 [211 Cal.Rptr. 517, 695 P.2d 1058], overruling Lowenstein on a related issue.) However, that presumption arises only if the proof of service complies with the statutory requirements regarding such proofs.

(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Here, Defendant appears to have shown how Plaintiff’s proof of service as to moving Defendant did not comply with the statutory requirements for proof of substituted service. Defendant appears to have shown this by showing that the location served was not his usual place of business. Plaintiff’s argument in Opposition appeared to be unavailing because at best Plaintiff may have shown that the address served was First Stop Auto LLC’s usual place of business; however, First Stop Auto LLC is not seeking to vacate the default/default judgment. Here, moving Defendant is Yinming Liu. Plaintiff did not submit proof or evidence about Yinming Liu, the individual’s, usual place of business. Even setting aside the issue of “usual place of business” and focusing on whether or not a “person apparently in charge of his or her office or place of business” was served, Defendant seems to argue that he had no idea who the person is that Plaintiff served. In Opposition, Plaintiff simply seems to argue that Defendant is lying and Defendant would know who was served because the location served was where Defendant’s business was located.

Dill v. Berquist Construction Co. states, “In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)

Tentatively, the Court plans to GRANT, Defendant Yinming Liu’s motion to vacate the default and default judgment entered against Yinming Liu. The Court notes that this order does not apply to the other Defendants, as no other Defendants moved to vacate default/judgment.

Case Number: 25NNCV00709 Hearing Date: May 9, 2025 Dept: E

Case No: 25NNCV00709
Hearing Date: 05/09/2025 – 8:30am

Trial Date: UNSET

Case Name: KEVIN JOHNSON v. CITY OF BURBANK, a public entity; COUNTY OF LOS ANGELES, a public entity; STATE OF CALIFORNIA, a public entity; CALIFORNIA DEPARTMENT OF CHILD SERVICES, a public entity; TALAN ASATRYAN, an individual; and DOES 1 – 50, inclusive

TENTATIVE RULING ON DEMURRER AND MOTION TO STRIKE

PROCEDURAL

Moving Party: Defendant, City of Burbank

Responding Party: Plaintiff, Kevin Johnson

Moving Papers: Notice/Demurrer; Request for Judicial Notice; Kim Declaration; Proposed Order; Notice of Errata

Opposing Papers: Opposition; Objection to Request for Judicial Notice; Objection to Evidence

Reply Papers: Reply

Proof of Service Timely Filed (CRC, Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Correct Address (CCP § 1013, § 1013a, § 1013b): Ok

RELIEF REQUESTED

Defendant, City of Burbank, demurs to both causes of action in Plaintiff’s Complaint on grounds of failure to state facts sufficient to constitute a cause of action and uncertainty.

Defendant demurs pursuant to CCP §§ 430.10(e)&(f), 430.30, and CRC, Rule 3.1320.

Defendant argues that the demurrers to both causes of action should be sustained because the allegations within the Complaint are not fairly reflected in Plaintiff’s Tort Claim. (Hernandez v. City of Stockton (2023) 90 Cal. App. 5th 1222, 1232.)

Defendant also argues that Plaintiff cannot establish that Defendant, Talan Asatryan, was an employee of the City of Burbank at the time of the incident at issue, as alleged.

Defendant’s demurrer is based upon this notice of demurrer, the attached demurrer, the attached memorandum of points and authorities, the declaration of Alexander Prieto regarding compliance with the meet-and-confer requirements of Code of Civil Procedure § 430.41 and exhibits thereto, the concurrently request for judicial notice and attached exhibit, as well as all pleadings, records, and papers on the file herein, all matters of which the Court may take judicial notice under sections 451, 452, and 453 of the Evidence Code, and upon such other evidence and oral argument as my be received by the Court at or before the time of the hearing.

PROCEDURAL
Meet and Confer
A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41, subd. (a)(2).) Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Id., § 430.41(a)(4).)

Here, Defendant’s counsel sent Plaintiff’s counsel a meet and confer letter. (See Prieto Decl. ¶ 7.)

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.)

Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS

Plaintiff, Kevin Johnson, filed the instant action on 2/3/2025 against Defendants: (1) City of Burbank, (2) County of Los Angeles, (3) State of California, (4) California Department of Child Services, (5) Talan Asatryan, and (6) Does 1-50.

Plaintiff’s Complaint lists the first cause of action as “Motor Vehicle” and the second cause of action as “General Negligence.”

Plaintiff’s Complaint alleges that on or about March 13, 2024, near 3270 Thornton Ave, Burbank, CA 91504, Plaintiff was operating his vehicle westbound on Thornton Ave., near 3270 Thornton Ave., when Defendant Talan Asatryan made an abrupt U-turn directly in front of Plaintiff’s vehicle and collided with Plaintiff’s vehicle. Plaintiff alleges the actions of Defendants and/or their employees was below the standard of care and was the cause of Plaintiff’s injuries.

Plaintiff’s Complaint further alleges, in relevant part:

Plaintiff’s injuries and damages alleged herein above were the proximate cause of the negligence, carelessness and/or recklessness of Defendants CITY OF BURBANK, a public entity; COUNTY OF LOS ANGELES, a public entity; STATE OF CALIFORNIA, a public entity; CALIFORNIA DEPARTMENT OF CHILD SERVICES, a public entity; TALAN ASATRYAN, an individual; and Does 1 to 50, inclusive. Defendants and each of them on said day and place so negligently, carelessly, and/or recklessly entrusted, owned, operated a motor vehicle in an unreasonable and unsafe manner thereby causing Plaintiff to sustain the injuries and related damages herein above alleged.

This claim is brought pursuant to Government Code Section 815.2; Vehicle Code Section 17001.

Pursuant to Vehicle Code section 17001, a public entity is liable for death or injury to person or property proximately caused by the negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his/her employment. Therefore, Defendants CITY OF BURBANK, a public entity; COUNTY OF LOS ANGELES, a public entity; STATE OF CALIFORNIA, a public entity; CALIFORNIA DEPARTMENT OF CHILD SERVICES, a public entity; and Does 1 to 50, inclusive, are statutorily liable for the negligent acts of the Defendants’ employee while he/she was operating the subject vehicle.

Defendants, CITY OF BURBANK; and DOES 1 through 50, were served with a claim for damages pursuant to Government Code Section 911.2 on or about September 13, 2024 and was rejected on November 1, 2024.

(See Compl. p 7-8.)

Issue 1

Defendant, City of Burbank, argues that its demurrer should be sustained as to both causes of action because a complaint is subject to dismissal/demurrer if it alleges a factual basis for recovery which is not “fairly reflected” in the government claim.

Defendant explains that Plaintiff’s Complaint and Tort Claim (“Claim for Damages” or “Claim”) are based on Defendant’s negligent entrustment of its vehicle. Defendant explains that the Tort Claim filed with Defendant, City of Burbank, states the owner of the vehicle is the Department of Child Support Services, and not the City of Burbank. Defendant also explains that the Complaint identifies City of Burbank as one of the owners of the vehicle. Defendant thus argues that since the Tort Claim filed with the City of Burbank does not allege that the City of Burbank owned the vehicle, but instead alleges the Department of Child Services as the owner of the vehicle, the Complaint is vulnerable to demurrer because the City of Burbank’s ownership of the vehicle identified in the Complaint is not fairly reflected in the Tort Claim filed with the City of Burbank.

The Government Claims Act established a standardized procedure for bringing personal injury claims against local governmental entities. (Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1230 citing Ardon v. City of Los Angeles (2011) 52 Cal.4th 241, 246.) As a general rule, no suit for money damages may be brought against a public entity until a written claim, known as a government claim, is presented to and rejected by that entity. (Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1230.)

As explained in Hernandez:

The required contents of a government claim are set forth in section 910 of the Government Claims Act. Among other mandatory contents, section 910 specifies that a claim “shall” include “[t]he date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted,” “[a] general description of the ... injury, damage or loss incurred so far as it may be known at the time of presentation of the claim,” and “[t]he name or names of the public employee or employees causing the injury, damage, or loss, if known.” (§ 910, subds. (c)–(e).) The failure to timely file a proper government claim is fatal to the maintenance of a civil action against a public entity.

(Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1230-31 citing City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.)

Here, Plaintiff submitted a Claim For Damages (Claim) on 9/13/2024 that was received by Defendant, City of Burbank, on 9/17/2024.

On this Claim, Kevin Johnson is the claimant, and the Claim indicates that on 3/13/2024, at or near 3270 Thornton Ave, Burbank, CA 91504, “Mr. Johnson was lawfully operating his vehicle westbound on Thornton Ave. near 3270 Thornton Ave when another vehicle traveling eastbound suddenly and without warning turned into his lane of travel and collided with his vehicle, causing him to sustain injuries and damages.” (Kim Decl. Ex. 1.)

Further, this Claim states that “The Department of Child Support Services failed to safely operate their vehicles and failed to properly train their employees and/or supervise their staff in safe driving procedures.” (Kim Decl. Ex. 1.)

Additionally, Plaintiff’s Claim indicated that the name of the employee that caused injury/damage with Child Support Services was Talin Asatryan.

Defendant argues the allegations in the Complaint are not fairly reflected in the Claim for Damages because the Claim for Damages states that the owner of the vehicle is Department of Child Services and not City of Burbank.

The Court does not find Defendant’s argument availing.

As explained in Hernandez:

Although a government claim need not contain the detail and specificity required of a pleading in a civil action, it nevertheless must “ ‘fairly describe what [the] entity is alleged to have done.’ ” (Stockett, supra, 34 Cal.4th at p. 446.) When a civil action is filed following the rejection of a government claim, it is acceptable for the complaint to elaborate or add further details to a government claim, but the complaint may not completely “shift [the] allegations” and premise liability on facts that fundamentally differ from those specified in the government claim. (Stockett, at p. 447; see Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 794 [5 Cal.Rptr.2d 756].) In other words, the factual basis for recovery in the complaint must be “fairly reflected” in the government claim. (Stockett, at p. 447; see Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376 [171 Cal.Rptr.3d 881] [“In order to comply with the claim presentation requirement, the facts alleged in a complaint ... must be consistent with the facts contained within the government claim”]; Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1060 [151 Cal.Rptr.3d 648] [“ ‘the factual circumstances set forth in the [government] claim must correspond with the facts alleged in the complaint’ ”].)

(Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1231.)

The complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim. (Donohue v. State of California (1986) 178 Cal.App.3d 795, 802.)

Defendant cites several cases as examples wherein the factual basis for recovery in the complaint was not fairly reflected in the government claim; those cases are not helpful for Defendant here.

Hernandez summarizes many of Defendant’s examples:

Courts have consistently held that a civil action (or a claim alleged therein) is barred when, as here, the complaint premises liability on an entirely different factual basis than that stated in the government claim. (See, e.g., Turner v. State of California (1991) 232 Cal.App.3d 883, 887–888, 891 [284 Cal.Rptr. 349] [government claim premised liability on failure to provide adequate security but the complaint alleged a claim predicated on inadequate lighting]; Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434–435 [253 Cal.Rptr. 587] [government claim specified injury was based on dangerous and defective condition (unsafe door) but the complaint alleged a claim premised on negligent failure to supervise students]; Donohue v. State of California (1986) 178 Cal.App.3d 795, 804 [224 Cal.Rptr. 57] [government claim alleged that the defendant was negligent in allowing uninsured motorist to take driving test, whereas the complaint alleged that the defendant was negligent in failing to instruct, direct, and control the motorist during the test].)

(Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1232.)

Here, both Plaintiff’s Claim and Complaint allege the same factual basis for recovery, i.e. Plaintiff was hit by a negligently driven motor vehicle by an employee of a government entity, and Plaintiff plans to hold the government entity liable for failure to properly train/supervise employees.

While Plaintiff’s Claim indicates that it was “The Department of Child Services,” as opposed to the City of Burbank that failed to properly train/supervise its employee, the Court does not find this to be grounds to sustain Defendant’s demurrer.

As stated in Stockett :

The purpose of these statutes is “to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701.) Consequently, a claim need not contain the detail and specificity required of a pleading, but need only “fairly describe what [the] entity is alleged to have done.” (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1426, 4 Cal.Rptr.2d 203; Turner v. State of California (1991) 232 Cal.App.3d 883, 888, 284 Cal.Rptr. 349.) As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 225, 267 Cal.Rptr. 13), the claims statute “should not be applied to snare the unwary where its purpose has been satisfied” (Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal.App.3d 70, 74, 135 Cal.Rptr. 621).

(Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority 34 Cal.4th 441, 446.)

Although the section in the Claim under “City department involved, if known:” indicated “Child Support Services,” this Claim was still in fact filed with the City of Burbank on a form titled “City of Burbank CLAIM FOR DAMAGES,” and the factual basis for liability is the same in both the Claim and the Complaint. In both, Plaintiff seeks to hold the government entity liable for the negligent entrustment of its vehicle to one of its employees.

Defendant did not cite to a single case wherein a demurrer was sustained because the governmental entity was named incorrectly in the Claim.

Therefore, Defendant’s demurrer to the Complaint on grounds that the Complaint alleges a factual basis for recovery which is not “fairly reflected” in the government claim is OVERRULED.

Issue 2

Defendant argues that its demurrer to both causes of action should be sustained because it can prove that Defendant, Talan Asatryan, was not an employee of the City of Burbank on the date of injury. Defendant argues that the Court can use the declaration from the City of Burbank’s Human Resources department under Evidence Code § 452(h) to take judicial notice of Asatryan’s non-employment with the City of Burbank.

In Defendant’s motion, Defendant attached the declaration of April Rios, a current Human Resources Manager for the City of Burbank’s Management Services Department. In relevant part, Rios states:

3. In my capacity as the Human Resources Manager, I have access to and the ability to search records of the City of Burbank for any and all past and current employees, including employees that were employed on March 13, 2024.

4. On Friday, February 28, 2025, I searched the City of Burbank's employment databases for any employee named "Talan Asatryan." I searched by the last name "Asatryan" to see if any employees with that last name existed. No results brought up a Talan Asatryan. Similarly, I searched by the first name Talan. No results brought up a Talan Asatryan. Our records do not indicate that any employee with name Talan Asatryan, is currently employed or was employed by the City of Burbank on March 13, 2024, or subsequently.

(Rios Decl. ¶¶ 3-4.)

Here, the Court does not find Defendant’s argument availing.

The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114 citing Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.)

Defendant requests judicial notice of the April Rios declaration under Evidence Code § 452(h).

“Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(h).)

Here, the Court fails to see how a declaration of an employee for Defendant is “not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

Defendant’s argument does not test the pleadings. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

Therefore, Defendant’s demurrer to the Complaint on grounds that Talan was not an employee of the City of Burbank on the date of incident is OVERRULED.

TENTATIVE RULING

Defendant’s demurrer to the first and second causes of action is OVERRULED.

Defendant requested judicial notice of Plaintiff’s Claim for Damages filed with the City, attached as Exhibit 1 to the Marlene Kim Declaration. The Court GRANTS judicial notice of Plaintiff’s Claim for Damages, as it needed to view it in order to evaluate Defendant’s demurrer. However, the Court notes it is not admitting the truth of the matters therein. “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 citing Middlebrook–Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038.)

Defendant also requested judicial notice of the declaration of April Rios, Human Resources Manager for the City of Burbank, under Evidence Code § 452(h). Defendant’s request for judicial notice of the April Rios Declaration is DENIED.

Website by Triangulus