Judge: Christian R. Gullon, Case: 23PSCV00738, Date: 2024-05-20 Tentative Ruling

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Case Number: 23PSCV00738    Hearing Date: May 20, 2024    Dept: O

Tentative Ruling

DEFENDANT CITY OF POMONA’S NOTICE OF DEMURRER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES is SUSTAINED with leave to amend.

Background

This is a negligence case. Plaintiffs JUAN ALVARRAN, an individual; AMANDA DOW, an individual; and LILAH ALVARRAN, a minor through her Guardian Ad Litem JUAN ALVARRAN allege the following against Defendants CITY OF MONTCLAIR, a public entity and ANTHONY ALMEDA: On 1/14/2023, Defendant Almeda was being pursued by Police Officer Sean Mackey #401 of the Montclair Police Department when Defendant Almeda collided with Plaintiff’s vehicle and caused a chain-reaction of collisions with other motor vehicles.

On March 13, 2023, Plaintiffs filed suit for:

On October 6, 2023, the City of Montclair filed its answer.

On January 22, 2024, the City of Montclair filed a cross-complaint against the City of Pomona for:

1.     IMPLIED INDEMNITY

2.     CONTRIBUTION AND INDEMNITY

3.     DECLARATORY RELIEF

On February 8, 2024, Plaintiff named the City of Pomona as Doe 1 and Sean Mackey as Doe 2.

On February 21, 2024, City of Pomona filed its answer to the Cross-Complaint.

On April 11, 2024, the City of Pomona filed a demurrer, which it withdrew on 4/19/24.

On April 19, 2024, the City of Pomona filed the instant demurrer.

On May 6, 2024, Plaintiffs filed their opposition.

On May 13, 2024, the City of Pomona filed its reply.

Legal Standard[1]

The City of Pomona brings forth the motion pursuant to CCP section 430.10 subdivisions (e) (failure to state sufficient facts to constitute a COA) and subdivision (f) (uncertainty).

Discussion

The City of Pomona brings forth the demurrer on the following grounds:

1.     The City of Pomona is immune pursuant to Vehicle Code section 17004.7(b)(1), see also Ramirez v. City of Gardena (2017) 14 Cal.App.5th 811, 818.

2.     Complaint fails to plead particular facts about the City of Pomona’s alleged negligence/omission

3.     The complaint fails to identity a statute that imposes liability on the City of Pomona

4.     The complaint fails to allege compliance with the Tort Claims Act

1.     Immunity

Vehicle Code § 17004.7(b)(1) provides as follows:

(a)   The immunity provided by this section is in addition to any other immunity provided by law. … (b)(1) A public agency employing peace officers that adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits complying with subdivisions (c) and (d) is immune from liability for civil damages for personal injury to or death of any person or damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he or she is being or has been, pursued in a motor vehicle by a peace officer employed by the public entity. (Veh. Code, § 17004.7(b)(1).)

The opposition does not address the statute. To the extent that Plaintiffs focus on CACI 730, which is used to guide jurors in determining whether a law enforcement officer's pursuit of a suspect was conducted with reasonable care, that but supports the City of Pomona’s ultimate point: the complaint fails to specific facts as to the accident to determine whether any such action on behalf of the City of Pomona was reasonable. Mere pursuit of vehicles does not implicate Vehicle Code §17001 as mere pursuit is not negligent operation of a vehicle. (Reply p. 4, citing Reenders v. City of Ontario (1977) 68 Cal.App.3d 1045, 1052.)

Thus, absent facts that indicate any negligent operation of the police vehicle by the police officer, the court SUSTAINS the demurrer on the grounds of immunity with leave to amend.[2]

Though the court need not necessarily address the other arguments, for the sake of judicial economy/purposes of amendment, the court will address the other arguments.

2.     Specific Facts as to the City of Pomona

The original complaint is directed at the City of Montclair. To the extent that Plaintiffs argue that the City of Pomona was named as a Doe defendant such that the pleading is proper, not so. First, it is improper to lump allegations against multiple defendants. (See, e.g., Moore v. Regents of Univ. of Cal. (1990) 51 Cal. 3d 120, 125 n.1 & 134 n.12; Wilson v. Household Fin. Corp. (1982) 131 Cal. App. 3d 649, 653 [noting that plaintiff cannot allege claim against defendant HFC by merely lumping it together with the other defendant, as HFC did not have duties of an insurer].) Pleadings like this that assert claims against multiple defendants without specifying which defendants are liable for which acts or omissions make it difficult for Defendants to make informed responses to a plaintiff's allegations. (See e.g., Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 156-57; Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721 [complaint should state the essential and substantial facts to apprise defendant of the nature of the cause of action.].)

Therefore, as the four corners of the complaint do not state what the City of Pomona has allegedly done (notably when the City of Montclair was engaged in the pursuit), the demurrer is also sustained on this ground with leave to amend.

3.     Statute

Plaintiffs assert that the City of Pomona is liable under Government Code sections 815.2(a) and 820 (vicarious liability), but, as noted by the City of Pomona, it is unclear how this statute applies when no City of Pomona employee has even been identified. The opposition does not address this point.

Therefore, the court sustains the demurrer with leave to amend for the failure to identify a statute that imposes liability on the City of Pomona.

4.     Claims Presentation Requirement

Another of the City of Pomona’s arguments is that Plaintiff’s complaint fails to plead compliance with the tort claims act. (Demurrer p. 7, citing Gurrola v. County of Los Angeles (1984) 153 Cal.App.3d 145, 153; Dujardin v. Ventura County General Hospital (1977) 69 Cal.App.3d 350, 355.) That is true; the four corners of the complaint only reference a timely Tort Claim filed with the City of Montclair on February 15, 2023. (Complaint P20.) In Reply, the City of Pomona argues that it ‘never received these claims.” (Reply p. 2:26-27.) But the City of Pomona, by its own concession, has received the claim. (See Demurrer, Ex. G [email between counsel dated 4/19/24 at 11:48 PM] [“As discussed, we will be withdrawing our demurrer based on your office providing copies of the claim forms plaintiffs claim were mailed to the City of Pomona.”].)

Thus, while leave to amend should be used to allege that Plaintiffs have complied with the claims act presentation requirement, the court finds the issue of the filing of the presentation itself to be moot.

Conclusion

All in all, the liability of the City of Pomona is unclear based upon the lack of facts and should specific facts later be alleged, they need be enough to overcome the immunity afforded by Vehicle Code section 17004.7(b)(1). Leave to amend is granted.