Judge Audra Mori, Case 22STCV08164 2022-11-14 Tentative Ruling

Plaintiffs Brianna Vargas and Mia Madrigal (collectively, “Plaintiffs”) filed this action against Defendants California Highway Patrol (“CHP”) and Martin Lopez (“Lopez”) (collectively, “Defendants”) for damages arising from a motor vehicle accident. The First Amended Complaint (“FAC”) alleges that Lopez, while in the course of his employment for CHP and while operating CHP’s vehicle, caused a collision with Plaintiffs’ vehicle. The FAC asserts causes of action for motor vehicle and general negligence.

Defendants now demur to the FAC arguing that it fails to state sufficient facts to constitute a claim against either CHP or Lopez. Plaintiffs oppose the demurrer, and Defendants filed a reply.[1]

Defendants argue that the motor vehicle and general negligence claims fail against CHP because although Plaintiffs allege compliance with the claims presentation requirements of the Government Claims Act (the “Act”), this allegation is actually untrue. Further, Defendants contend that Plaintiffs fail to identify a proper statutory basis for the first cause of action and that the second cause of action is uncertain as to CHP. As to Lopez, Defendants contend that the first and second causes of action fail to state a claim against Lopez because the FAC fails to plead facts to overcome the special immunity afforded to Lopez under Vehicle Code § 17004.

In opposition, Plaintiffs contend that the FAC properly pleads compliance with the Act’s claims presentation requirement, and that the claims presented to Defendants sufficiently enabled them to investigate Plaintiffs’ claims. In addition, Plaintiffs assert that the FAC sufficiently sets forth a basis for Defendants’ statutory liability, and that Defendants are not entitled to immunity in this matter.

In reply, Defendants argue that both causes of action fail against CHP because Plaintiffs cannot allege compliance with the Act’s claims presentation requirements. Plaintiffs again assert that the FAC fails to state a claim against either CHP or Lopez.

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).)

The court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Williams Decl. ¶¶ 5-9.)

Government Code § 945.5 provides, “No suit for damages may be maintained against a public entity unless the claim has been presented to it.”

California Government Code § 911.2(a) states, “[a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” Government Code § 945.6 provides in relevant part:

(a) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced:

(1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.

“The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 767.)

“ ‘[A] plaintiff may allege compliance with the claims presentation requirement in the Government Claims Act by including a general allegation that he or she timely complied with the claims statute.’ ” (Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 552.) “When a pleading states that the plaintiff has complied with the claims statute, it has properly pleaded an ultimate fact—that is, the statement of compliance is not a conclusion of law.” (Id. at 552 n. 4.) Accordingly, “plaintiffs are allowed to plead compliance with the claims presentation requirement in the Government Claims Act using a general allegation.” (Id. at 554 [finding plaintiff properly pled compliance with claim presentation requirement of the Act by checking boxes for items 9.a on Judicial Council form PLD–PI–001].)

In this case, the FAC was filed on Judicial Council form PLD-PI-001 where Plaintiffs checked boxes for items 9.a. on the form providing, “Plaintiff is required to comply with a claims statute, and [¶] ... has complied with applicable claims statutes.... and has complied with applicable claims statutes.” (FAC at p. 2.) Concerning the second cause of action for negligence, the FAC alleges, “Government claim form prerequisites have been adhered to.” (Id. at p. 5.) Plaintiffs are permitted to allege compliance with the claims requirements using a general allegation, which they have done. (Esparza, 3 Cal.App.5th at 552, 554.)

Defendants further contend that Plaintiffs’ claims presented for the accident did not state or identify that they were filed against CHP, so Plaintiffs can only truthfully allege compliance to presenting claims pertaining to Lopez. However, in ruling on the demurrer, the Court is limited to reviewing the four corners of the FAC and matters that are judicially noticeable. Defendants attach various exhibits to their demurrer but do not request, nor establish that it is proper, that judicial notice be taken of any of the documents attached therein. The Court, thus, cannot consider Defendants’ extrinsic evidence in connection with the demurrer, and Defendants’ contentions regarding the truthfulness of the statements in the claims is improper at this stage of the proceedings. (Donabedian, 116 Cal.App.4th at 994, Ion Equip. Corp., 110 Cal.App.3d at 881.)

The demurrer on the ground that the FAC fails to comply with the Act’s claims presentation requirements as to CHP is overruled.

Defendants’ position that the second cause of action for general negligence against CHP is uncertain is premised on the same contention that Plaintiffs did not comply with the Act’s claims presentation requirements as to CHP. Therefore, for the same reasons stated above, the demurrer as to the second cause of action against CHP is overruled.

Except as otherwise provided by statute, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code § 815(a).) “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457; accord, Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 (emphasis in the original).

Because all liability under the Government Claims Act is statutory, “the general rule that statutory causes of action must be pleaded with particularity is applicable.”¿ (Susman¿v. City of Los Angeles¿(1969) 269 Cal.App.2d 803, 809.)¿ Thus, “to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” ¿(Searcy v. Hemet Unified School District¿(1986) 177 Cal.App.3d 792, 802.)

In this case, Defendants aver that the FAC fails to identify a statutory basis of liability as to CHP, so the first cause of action for motor vehicle negligence fails to state a claim against CHP. Plaintiffs, in opposition, argue that the FAC sufficiently sets forth CHP’s liability under Government Code §§ 815.2 and 820.

However, as Defendants contend, the first cause of action for motor vehicle negligence does not identify any statutory basis for liability against CHP. There is no reference to Government Code §§ 815.2 and 820, and the FAC does not otherwise identify any statutory duty owed by CHP to Plaintiffs in the first cause of action. (FAC at p. 4.) There is no common law tort liability for public entities in California, including negligence. (Becerra, 68 Cal.App.4th at 1457; McCarty, 164 Cal.App.4th at 975.)

Accordingly, the demurrer is sustained as to first cause of action for motor vehicle negligence against CHP.

The burden is on Plaintiffs to show in what manner they can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) While Plaintiffs request leave to amend, Plaintiffs confirm that Defendants’ statutory liability is premised on Government Code §§ 815.2 and 820. This statutory theory of liability and the relevant allegations are already encompassed in Plaintiffs’ second cause of action against Defendants. Accordingly, allowing Plaintiffs leave to amend to set forth the same theory of liability in the first cause of action would merely make this claim duplicative of the second cause of action and add nothing new to the complaint.

Therefore, the demurrer is sustained as to the first cause of action for motor vehicle negligence against CHP without leave to amend.

Defendants contend that both the first and second causes of action fail to state a claim against Lopez because Plaintiffs fail to plead facts overcome the special immunity afforded to Lopez under Vehicle Code § 17004.

A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm or other emergency call.

The FAC alleges in relevant part, “Defendants made an unsafe U-turn in front of Plaintiffs causing a T-Bone collision. Defendants did not have their emergency lights or sirens activated, nor were they responding to an emergency.” (FAC at p. 5.) Defendants assert that Lopez was an on-duty CHP officer operating an authorized emergency vehicle, and that Lopez was also in the immediate pursuit of an actual or suspected violator of law to make an enforcement stop. Defendants, thus, argue that because the FAC fails to plead facts to overcome the fact that Lopez was operating an authorized emergency vehicle in the line of duty, and to overcome the fact that Lopez was in the immediate pursuit, the FAC fails to show that either cause of action lies outside the special immunity afforded to Lopez.

However, as Plaintiffs argue, Defendants’ contentions improperly rely on facts and evidence beyond the four corners of the FAC. There are no allegations showing that Lopez was operating an “authorized emergency vehicle” “in the line of duty” while in pursuit of an actual or suspected violator of law. (Vehicle Code § 17004.) The FAC alleges only that Lopez did not have emergency lights activated and was not responding to an emergency, which the Court must accept as true at the demurrer stage. Defendants do not request judicial notice of any documents or evidence that would otherwise show Lopez was operating an authorized emergency vehicle in the line of duty while he was responding to an emergency or in immediate pursuit, perhaps because it is doubtful that judicial notice or consideration of such documents on demurrer is appropriate.

Defendants cite to Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, in asserting that “When bringing suit against a public entity, a plaintiff must also allege facts to show that the cause of action lies outside the breadth of any applicable statutory immunity.” (Dem. at p. 9:23-26, internal quotations omitted.) However, the Lopez decision did not require a plaintiff to identify all possible statutory immunities that may be afforded to a public entity or employee and then plead facts showing that each of them does not apply.[2] Rather, the Lopez Court found that under the circumstances and facts alleged, which did not involve Vehicle Code § 17004, that the “plaintiffs have pled ‘facts sufficient to show [their] cause of action lies outside the breadth of any applicable statutory immunity.’ ” (Lopez, 40 Cal.3d at 795-96.) More specifically, the Lopez Court found, “the gravamen of the complaint falls outside the scope of statutory immunity provisions.” (Id.) In this case, Plaintiffs do not allege any facts indicating that Lopez was responding to an emergency or in immediate pursuit of a suspect. To the contrary, they allege that Lopez did not have emergency lights activated. Thus, the gravamen of the complaint falls outside the scope of statutory immunity provisions.

Defendants’ demurrer as to the first and second causes of action in the FAC against Lopez is overruled.

Defendants’ demurer is sustained as to the first cause of action for motor vehicle negligence against CHP without leave to amend. The demurrer is otherwise overruled as to the second cause of action against CHP, and as to the first and second causes of action against Lopez.

Hon. Audra Mori

Judge of the Superior Court

[1] Plaintiffs’ opposition to the demurrer was due on or before October 31, 2022, but was not filed until November 1, 2022. Given that Defendants were able to file a reply addressing Plaintiffs’ arguments, and in the absence of any prejudice, the Court exercises its discretion to consider the untimely opposition. However, Plaintiffs’ counsel is put on notice that failure to file timely papers in the future may result in the Court disregarding Plaintiffs’ papers.

The Court further notes that Defendants filed two replies on November 4, 2022- one electronically filed at 9:12 a.m. and the other at 12:25 p.m. The Court will consider only the later filed 12:25 p.m. reply.

[2] In Lopez, the California Supreme Court found the defendant, Southern California Rapid Transit District (RTD), a public corporation, had a duty to protect passengers aboard its buses from assaults by fellow passengers. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 783.) Lopez involved a group of juvenile passengers who began harassing passengers and a violent argument that ensued. (Id. at 784.) The bus driver was notified of the altercation but did not take any precautionary measures and continued to operate the bus. (Id.) Eventually, the argument escalated into a physical fight causing injury to plaintiffs. (Id.) The Supreme Court found that the defendant was not immune under the Government Code from the alleged facts such that the plaintiffs were not barred from bring their action. (Id. 791-95.)