Judge Audra Mori, Case 22STCV02190 2022-12-05 Tentative Ruling

Plaintiff County of Los Angeles (“Plaintiff”) filed this action against Defendant Don Dkendrick Smith (“Defendant”) for damages arising from a motor vehicle accident. The complaint alleges that Plaintiff seeks damages “[a]s a subrogated, self-insured employer, damages for all wages and workers compensation benefits paid to or on behalf of Plaintiff's employee, Oscar Escobedo, Jr.” (Compl. at p. 3, ¶ 11.) The complaint, filed on Judicial Council form PLD-PI-001, asserts a single cause of action for motor vehicle negligence.

Defendant now demurs to the complaint arguing that it fails to state sufficient facts to constitute a claim against him. Plaintiff opposes the demurrer, and Defendant filed a reply.

Defendant argues that the complaint is devoid of any factual allegations as to how the accident occurred, and that Plaintiff fails to state a subrogation claim against Defendant. Defendant contends that the complaint does not establish Plaintiff has standing to sue and does not plead the required elements for a subrogation cause of action.

In opposition, Plaintiff argues that the complaint is on an approved Judicial Council form and sufficiently pleads a claim against Defendant.

Defendant, in reply, argues that the complaint merely states the date and place where an accident allegedly occurred, but the complaint fails to allege that Defendant was involved in an accident with Plaintiff’s insured. Defendant contends that the complaint fails to state a cause of action for subrogation against him.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Coulston Decl. ¶¶ 4-5.)

The elements of a cause of action for negligence are duty, breach, causation, and damages. (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255; Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.)

“Subrogation is defined as the substitution of another person in place of the creditor or claimant to whose rights he or she succeeds in relation to the debt or claim.” (Fireman’s Fund Ins. Co. v. Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, 1291.) The essential elements of an insurer’s claim for subrogation are:

“(a) the insured suffered a loss for which the defendant is liable, either as the wrongdoer whose act or omission caused the loss or because the defendant is legally responsible to the insured for the loss caused by the wrongdoer; (b) the claimed loss was one for which the insurer was not primarily liable; (c) the insurer has compensated the insured in whole or in part for the same loss for which the defendant is primarily liable; (d) the insurer has paid the claim of its insured to protect its own interest and not as a volunteer; (e) the insured has an existing, assignable cause of action against the defendant which the insured could have asserted for its own benefit had it not been compensated for its loss by the insurer; (f) the insurer has suffered damages caused by the act or omission upon which the liability of the defendant depends; (g) justice requires that the loss be entirely shifted from the insurer to the defendant, whose equitable position is inferior to that of the insurer; and (h) the insurer's damages are in a liquidated sum, generally the amount paid to the insured.” [Citation.]

(State Farm General Ins. Co. v. Wells Fargo Bank, N.A., (2006) 143 Cal.App.4th 1098, 1111-12.)

“As the elements demonstrate, the aim of equitable subrogation is to shift a loss for which the insurer has compensated its insured to one who caused the loss, or who is legally responsible for the loss caused by another and whose equitable position is inferior to the insurer's.” (Id. at 1112.)

Here, the caption of the complaint states that the action is for motor vehicle and subrogation, and that Defendant seeks “Other Damages … Labor Code, Section 3852.”[1] (Compl. at p. 1.) The complaint further alleges that Plaintiff seeks “As a subrogated, self-insured employer, damages for all wages and workers compensation benefits paid to or on behalf of Plaintiff's employee, Oscar Escobedo, Jr.” (Compl. at p. 3, ¶ 11.) Plaintiff alleges that Defendant was negligent in operating a motor vehicle on June 6, 2021, at Beverly Boulevard and Pine Street, Pico Rivera, California, and that Defendant’s acts were the proximate cause of Plaintiff’s injuries and damages. (Compl. at p. 4.)

To the extent that Defendant contends that the complaint must allege facts as to how the alleged accident occurred, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 Id. [“The negligence element may be generally pleaded; the breach of duty of care may be alleged by stating the act was negligently done.”].) However, the complaint on its face asserts that Plaintiff is seeking damages for subrogation for wages and workers compensation paid to or on behalf of its employee. The complaint, therefore, must allege the essential elements of a cause of action for subrogation against Defendant. Unlike Plaintiff contends, the fact that the complaint was filed on a Judicial Form does not make the complaint demurrer-proof. (People ex rel. Dep't of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484 [“Adoption of Official Forms for the most common civil actions has not changed the statutory requirement that the complaint contain 'facts constituting the cause of action.' ”].)

The complaint alleges only that Plaintiff seeks subrogation damages for wages and workers compensation paid to its employee, but the complaint does not allege how Defendant is a tortfeasor regarding Plaintiff’s employee. In other words, there are insufficient facts showing that Defendant caused any harm or loss suffered by Plaintiff’s employee. Although Plaintiff allegedly paid wages and workers compensation benefits to its employee, there are no facts showing that this was due to any alleged conduct by Defendant. Accordingly, the complaint does not allege the required elements to state a claim for subrogation against Defendant. (State Farm General Ins. Co., 143 Cal.App.4th at 1111-12.)

Defendant’s demurrer to the complaint is sustained. Because this is the first challenge to the complaint, and because there is a reasonably possibility the complaint can be cured to state a claim against Defendant, leave to amend will be granted.

Defendant’s demurrer is sustained to the complaint with 20 days leave to amend.

Hon. Audra Mori

Judge of the Superior Court

[1] Labor Code § 3852 states: “The claim of an employee, including, but not limited to, any peace officer or firefighter, for compensation does not affect his or her claim or right of action for all damages proximately resulting from the injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, or who pays, or becomes obligated to pay salary in lieu of compensation, or who pays or becomes obligated to pay an amount to the Department of Industrial Relations pursuant to Section 4706.5, may likewise make a claim or bring an action against the third person. In the latter event the employer may recover in the same suit, in addition to the total amount of compensation, damages for which he or she was liable including all salary, wage, pension, or other emolument paid to the employee or to his or her dependents…”