Judge Kerry Bensinger, Case 19STCV21916 2023-04-28 Tentative Ruling

On June 21, 2019, Plaintiff Infinity Insurance Company filed this action against defendants Ruben Loera (“Loera”) and Los Angeles County Sheriff’s Department (“County”) (collectively, “Defendants”) for general negligence. Plaintiff alleges it paid its insured, Miguel Meza (“Meza”), for property damages sustained in a motor vehicle accident that occurred on June 21, 2016, and now seeks to recover those payments from Defendants.

On May 24, 2022, County filed a demurrer arguing that Plaintiff’s complaint was untimely pursuant to Gov. Code, § 945.6, subd. (a)(2) and the action should have been filed by June 21, 2018. The Court sustained County’s demurrer without leave to amend.

On March 23, 2023, Loera filed this demurrer, arguing that Plaintiff’s complaint is untimely filed.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Judicial Council form complaints are not invulnerable to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1482.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Loera requests that the Court for judicial notice of (1) Claim for Damages presented by Infinity Insurance Company on January 18, 2017, (2) Amended Claim for Damages presented by Infinity Insurance Company on May 1, 2017, (3) the lack of a notice of rejection of plaintiff’s claim and amended in the records of the County of Los Angeles, and (4) the Court’s August 8, 2022 Minute Order in this matter.

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) Defense counsel has satisfied this requirement. (Declaration of Allen L. Thomas.)

The form complaint alleges the following: “This case arises out of a multi vehicle accident on June 21, 2016 on the WB 60 freeway. At the time of the incident, Miguel Meza was insured under an automobile policy issued by Plaintiff. As a direct and proximate result of the negligence of defendants and each of them, Plaintiff paid property damages to Plaintiff’s insured pursuant to a claim made by the insured under the automobile policy for property damages and pursuant to the California Insurance Code. Plaintiff became and now is, subrogated to all rights of plaintiff’s insured for such amounts paid by Plaintiff. Plaintiff now seeks to recover damages against the defendants and Does 1 to 20, and each of them, for their negligence in causing injuries and damages in this incident.” (Complaint, p. 4.)

Loera’s argument may be summarized as follows: Loera was acting within the course and scope of his employment with County at the time of the incident. Thus, pursuant to Government Code section 945.6, Plaintiff was required to file its Complaint by June 21, 2018. However, because Plaintiff did not file its Complaint until June 21, 2019, the Complaint is untimely. Further, it may be reasonably inferred from the Complaint, Loera was acting within the course and scope of his employment because his employer, County, was named as defendant in this action.

Loera’s argument lacks merit for two reasons. First, the Complaint does not allege anywhere that Loera was acting within the course and scope of his employment at the time of the incident. Nor does Loera submit anything by way of judicial notice that supports that assertion. Second, “whether an employee is within the scope of employment is a question of fact.” (Blackman v. Great Am. First Sav. Bank (1991) 233 Cal.App.3d 598, 602.) Attacking the factual basis of a complaint is improper when, at the demurrer stage, all properly pleaded allegations are accepted as true. Absent an allegation or judicially noticed fact of Loera’s status at the time of the incident, Loera fails to show that Plaintiff’s complaint is untimely.

Further, as Plaintiff points out in opposition, this is a subrogation action. Therefore, Code of Civil Procedure section 338 applies. Section 338 provides that an action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property must be brought within three years. (Code Civ. Proc., § 338.) Plaintiff filed this action exactly three years from the subject incident. Plaintiff’s Complaint is timely.

Defendant Ruben Loera is ordered to file a responsive pleading to the Complaint within 20 days of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court