Judge: Daniel M. Crowley, Case: 22STCV25492, Date: 2023-03-14 Tentative Ruling

Case Number: 22STCV25492    Hearing Date: March 14, 2023    Dept: 28

Defendant State of California, acting by and through the Department of Parks and Recreation’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 February 10, 2023, State Parks filed a Demurrer to be heard on March 14, 2023. On March 1, 2023, Plaintiff filed an opposition. On March 7, 2023, State Parks filed a reply.

Trial is currently scheduled for February 5, 2024.

PARTY’S REQUESTS

State Parks requests the Court sustain the demurrer as the person who allegedly did the tortuous conduct was not a state employee and Plaintiff did not file a proper Government Claim prior to filing suit.

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

Notice of Demurrer

Plaintiff alleges that the demurrer was not properly served pursuant to CRC 2.251 and CCP § 1010.6. Plaintiff states that the moving papers were only served electronically on counsel and counsel’s assistant; they were not served at the service e-mail “PIservice@lawitthackman.com.” This was the email listed in the FAC as the “Service E-mail" in Plaintiff’s header. Plaintiff informed State Parks they served the incorrect emails and requested they instead service the service address. The signature blocks for the two emails served both indicate they are not authorized for e-service and instead request parties serve the service email.

State Parks argues it was not on notice as Plaintiff had never used that address to serve filed documents before; rather Plaintiff always used the two emails State Parks served. However, State Parks has stated moving forward, they will accommodate the request.

The Court finds any potential procedural issues are minor. Plaintiff was on notice as to this demurrer and provided an opposition based on the merits; State Parks has agreed to, in the future, serve documents at the requested address. The Court rules on the merits of the motion.

Judicial Notice

The Court takes judicial notice of the Government Claims form, subject to Evidence Code § 452(h). The Court does not take judicial notice of the Traffic Crash Report.

Employment

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.

State Parks first demurrers on the basis that McJimpson is not an employee of State Parks, and thus State Parks cannot be liable for his action as his employer. State Parks has not met their burden to sustain the demurrer on this basis. 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. Neither of State Parks’ proposed documents for judicial notice provide evidence that McJimpson is not State Parks’ employee. Declarations are not a sufficient basis on which to grant a demurrer. As the complaint clearly pleads McJimpson is an employee, the demurrer is overruled as to this issue.

Government Claims Act

Plaintiff’s claim arises out an incident that occurred on October 9, 2021. On March 21, 2022, Plaintiff presented a written claim to the California Department of General Services pursuant to GC §§ 905 and 910, et seq.

At the time of the claim filing, Plaintiff believed McJimpson’s named to be McTompson, and that he was an employee of CHP. Under GC § 910, the contents of a claim should include the name of the public employee causing the injury, if known. Plaintiff provided information as best to their knowledge at the time of filing. The State acknowledged receipt of the claim and recognized the involvement of a State motor vehicle.

State Parks argues that because Plaintiff originally filed a government claim against the incorrect agency, she never put State Parks on notice as a potential claim. State Parks relies on Spencer v. Merced County Office of Education (1997) 59 Cal.App.4th 1429, 1434, in which the Court held a claim filed against the County of Merced did not count as putting the Merced County Office of Education on notice.

Under GC § 946.4, where a provision is made that no suit may be brought against a public agency, as define in GC § 53050 unless and until a claim is presented to the agency, the failure to present a claim does not constitute a bar or defense if, during the 70 days immediately following the accrual of the cause of action: 1) no statement pertaining to the public agency is on file in the Roster of Public Agencies and the county clerk of each county in which the agency maintains an office; OR 2) a statement is on file, but the information is inaccurate or incomplete. A public agency is defined as a “district, public authority, public agency, and any other political
subdivision or public corporation in the state, but does not include the state or a county, city and county, or city.” The complaint does not allege that State Parks is a separate entity, instead indicating that they are a department of the state of California. Plaintiff’s opposing papers supplement this with the allegation that State Parks’ counsel confirmed this status. Claims against departments/subsidiaries must be filed against the parent entity. Hovd v. Hayward Unified Sch. Dist. (1977) 74 Cal. App. 3d 470. Plaintiff substantially complied with these requirements in filing a government claim with the California Department of General Services; the State acknowledged this claim and recognized the involvement of a State motor vehicle. The acknowledgement did not clearly state that only CHP was being put on notice as to the claim—therefore, the Court finds it reasonable to assume that Plaintiff put the State of California generally on notice as to this claim and substantially complied with the requirements. This differs from Spencer, as in Spencer, the Office of Education was considered an entity distinct from the County of Merced. Spencer at 1434.

State Parks argues that is unfair to put the burden on CHP to correct Plaintiff’s mistakes in the complaint or to put the burden on State Parks to see if a claim has been wrongfully contributed to another party. Neither of these are implied by the Court’s finding. 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.

Based on the above, the Court overrules the demurrer.

CONCLUSION

Defendant State of California, acting by and through the Department of Parks and Recreation’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.