Judge: Cherol J. Nellon, Case: 22STCV25492, Date: 2023-05-23 Tentative Ruling

Case Number: 22STCV25492    Hearing Date: May 23, 2023    Dept: 28

Defendant Luke McJimpson, Jr.’s Demurrer

Having considered the moving, opposition, and reply papers the Court rules as follows.

BACKGROUND

On August 8, 2022, Plaintiff Katherine Wall (“Plaintiff”) filed this action against Defendants State of California, acting by and through the California Highway Patrol, (“CHP”), City of Los Angeles (“City”), County of Los Angeles (“County”) and Luke McTompson, Jr. (“McTompson”) for negligence. Plaintiff later amended the complaint to include Defendant State of California, acting by and through the Department of Parks and Recreation (“State Parks”).

On October 19, 202, the County filed an answer. On November 10, 2022, the Court dismissed the County, with prejudice.

On January 11, 2023, Plaintiff filed the FAC against Defendants State of California (“State”), State Parks and Luke McJimpson, Jr. (“McJimpson”) for negligence.

On April 6, 2023, the State filed an answer.

On March 27, 2023, McJimpson filed a Demurrer to be heard on May 22, 2023. On May 9, 2023, Plaintiff filed an opposition. On May 15, 2023, McJimpson filed a reply.

Trial is currently scheduled for February 5, 2024.

PARTY’S REQUESTS

McJimpson requests the Court sustain the demurrer, without leave to amend, for failure to allege facts to support a cause of action against McJimpson.

Plaintiff requests the Court overrule the demurrer.

LEGAL STANDARD

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.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 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, 147 Cal.App.4th at 747.)

Government Code § 945.4 states “except as provided in Sections 946.4 and 946.6, 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 Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division 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, in accordance with Chapters 1 and 2 of Part 3 of this division.”

Evidence Code § 452 provides: “Judicial notice may be taken of.... (c) official acts of the legislative, executive and judicial departments of the United States and of any state of the United States,” and (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." The trial court shall take judicial notice of such matters so long as adverse parties are given sufficient notice of the request (via the pleadings) and the Court is given sufficient information. Evidence Code § 453.

DISCUSSION

Judicial Notice

The Court takes judicial notice of the following of McJimpson’s requests: 1, 2, 3, 4, 5, 7 and 10. The first four are all documents filed with the Court, and thus are judicially noticeable. Requests 5 and 10 would be considered either a legislative enactment or official act of a legislative departments, as it is the existence of a government agency/agreement created by other

government agencies within the United States. Request 7, Mountains Recreation and Conservation Authority’s (“MRCA”) address, is pulled directly from the website of a government agency. Courts may take judicial notice of information published on official government websites. People v. Morales (2018) 25 Cal.App.5th 502, 511, fn 7. All of these are appropriate for judicial notice under EC § 452.

The Court does not take judicial notice of any internet websites or search results, as these are not a proper basis for judicial notice. Even if the Court did take judicial notice of the websites or search results, judicial notice does not extend to the truth of the facts asserted on said websites; there must be a separate request made for the actual facts. At most, the Court would judicially notice the existence of these websites, but not the facts provided. The mere existence of these search results and websites are irrelevant to this litigation.

McJimpson’s request that the Court “judicially notice the fact that had Plaintiff performed a Google search of this search term, Plaintiff would have obtained this result and, thus, learned of Defendant’s connection to MRCA,” is inappropriate. This is not the proper subject for judicial notice under EC § 452(h). Similarly, the request to acknowledge the existence of information on a non-government website is also inappropriate and not a proper subject for judicial notice.

Demurrer

Plaintiff’s FAC alleges that McJimpson was an employee of State Parks, and acting as such, when he negligently drove his vehicle into Plaintiff, resulting in injuries.

McJimpson argues that Plaintiff failed to file a timely claim with McJimpson’s employer, MRCA, before initiating the instant action, as required by the California Government Torts Claims Act. Instead, Plaintiff filed a claim with the State of California Department of General Services Office of Risk and Insurance Management (“GSO”); as MRCA is a local public government agency, GSO is not the appropriate agency to file such a claim against McJimpson.

A demurrer tests for sufficiency on the face of the complaint; the only other potential metric that the Court can use to determine the validity of the complaint are facts subject to judicial notice. None of the documents actually subject to judicial notice provide evidence that McJimpson is not State Parks’ employee. The complaint, in contrast, clearly pleads McJimpson is an employee of State Parks. The Court previously ruled that the entire state of California accepted the claim on behalf of its departments, which are not individual public entities; it is the

state’s obligation to ensure the proper parties are put on notice OR to request additional information prior to accepting a claim. In accepting the claim, all department of the State were effectively put on notice, at least as far as the requirements of the government claims act. State Parks was considered to be notice as to the claim, and thus the action is not barred.

As McJimpson has provided no evidence subject to judicial notice showing that he was not a State Parks employee at the time of the incident, the Court must rely on the facts of the complaint. The facts as pled meet the pleading standard in California. The Court overrules the demurrer.

CONCLUSION

Defendant Luke McJimpson, Jr.’s Demurrer is OVERRULED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.