Judge Kerry Bensinger, Case 20STCV16861 2023-04-03 Tentative Ruling

On May 4, 2020, plaintiff Mario Licona Hernandez (“Plaintiff”) filed this action against The People of the State of California, acting by and through the Department of Transportation (“Defendant”) (erroneously sued as “California Department of Transportation”) and Daniel Parra (“Parra”) asserting a single cause of action for negligence. Plaintiff alleges Parra was operating a vehicle in the course and scope of his employment with Defendant when he collided with Plaintiff’s vehicle on August 9, 2019. Plaintiff dismissed Parra from this action on October 6, 2022.

On March 14, 2023, Defendant filed the instant motion for judgment on the pleadings. Plaintiff opposes and Defendant replies.[1]

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.]” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) The court must assume the truth of all properly pleaded material facts and allegations, but not contentions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Wise v. Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738.) “A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).)” (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.) “Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. [Citation.]” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)

Defendant requests that the Court take judicial notice of six documents relating to Plaintiff’s August 9, 2019 presentment of a claim for damages to Defendant. Plaintiff opposes Exhibit 5 on the grounds that Defendant misrepresents that exhibit as “a true and correct copy of Plaintiff’s second demand on 1/8/2020 for $10,388.90 filed by Plaintiff’s agent”. Plaintiff argues that Exhibit 5 is irrelevant because Exhibit 5 was a claim filed by Plaintiff’s insurer, Kemper Services Group, Inc. Kemper is not a party to this action. Kemper paid Plaintiff’s property damage claim to Plaintiff and subsequently held the rights to the property damage claim. In this lawsuit, Plaintiff is pursuing claims for bodily injury.

Based on the foregoing, the Court finds Exhibit 5 is irrelevant. (Evid. Code, § 210.) Because Exhibits 6 and 7 are also related to Kemper’s property damage claim, the Court finds Exhibits 6 and 7 are irrelevant as well. Defendant’s request for judicial notice of Exhibits 5, 6, and 7 is DENIED. (Id.) Defendant’s unopposed request for judicial notice of Exhibits 2, 3, and 4 is GRANTED.

The parties shall meet and confer at least five days before the date a motion for judgment on the pleadings is filed. If the parties are unable to meet and confer by that time, the moving party shall be granted an automatic 30-day extension of time within which to file a motion for judgment on the pleadings, by filing and serving, on or before the date a motion for judgment on the pleadings must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. (Code Civ. Proc., § 439, subd. (a)(2).)

Here, Defendant has not satisfied this requirement. Defendant does not include a declaration stating that a good faith attempt to meet and confer was made. However, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion for judgment on the pleadings.” (Code Civ. Proc., § 439, subd. (a)(4).) Therefore, the Court reaches the merits.[2]

Defendant argues that the First Cause of Action for negligence based on Government Code section 815.2 fails to state a cause of action because the State and its employee are immune from suit and the Court does not have jurisdiction to hear Plaintiff’s claim because Plaintiff waived his right to sue under Government Code section 946. The Court addresses each argument in turn.

Defendant argues that Plaintiff fails to plead around the well-settled rule that a public entity and its employees are not directly liable for injury unless liability is specifically imposed by statute or the State Constitution. This argument lacks merit. Defendant bases this argument on an incorrect citation of Government Code section 815. (See Motion, p. 5:20-24.) Contrary to Defendant’s assertion, Section 815, subdivision (a) states that a public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (Gov. Code, § 815, subd. (a).) By the plain words of this statute, the Legislature has clearly imposed a basis for liability against a public entity. A review of the Complaint also confirms that Plaintiff has set forth allegations based on this very statute. Plaintiff alleges that he “brings his causes of action against Defendants …, based on, but not limited to, California Government Code §§ 815.2(a) and 820(a)” and that “Parra acted within the scope of his employment with Defendant California Department of Transportation as it pertains to Gov. Code §815.2.” (Complaint, ¶¶ 21-22.) Defendant does not address these allegations. For this reason, the Court rejects Defendant’s additional argument that Parra is immune from liability, which is imputed to the State under Government Code section 815.2. As stated above, Section 815.2 says otherwise. Defendant fails to establish that Parra is immune from liability. That Parra was dismissed from this action has no bearing on whether Parra was working within the course and scope of his employment at the time of the alleged motor vehicle incident. Defendant improperly conflates the statute of limitations with immunity.

Defendant next argues that Plaintiff has failed to satisfy the presentment requirements for personal injury actions. The basis for this argument is predicated on a misunderstanding of Government Code section 950.6. That statutory provision states:

When a written claim for money or damages for injury has been presented to the employing public entity:

(a) A cause of action for such injury may not be maintained against the public employee or former public employee whose act or omission caused such injury until the claim has been rejected, or has been deemed to have been rejected, in whole or in part by the public entity.

(b) A suit against the public employee or former public employee for such injury must be commenced within the time prescribed by Section 945.6 for bringing an action against the public entity.

Government Code section 945.6 provides, in relevant part, that any suit brought against a public entity on a cause of action for which a claim is required to be presented must be commenced not later than six months after the date such notice is personally delivered or deposited in the mail. The foregoing statutes simply state that an action against a public employee can only be maintained if the claimant commences the action within six months after presenting a claim for money or damages for injury. Section 950.6 merely incorporates the deadline as set forth in Section 945.6. There is no requirement, as Defendant argues, that to maintain an action against a public entity, a plaintiff must also commence the action against the public employee. Parra’s involvement in this lawsuit is not necessary for Plaintiff to maintain this action against Defendant. Moreover, Plaintiff has pled having exhausted his administrative remedies. The Complaint alleges that “Plaintiff timely presented a valid claim for damages to Defendant California Department of Transportation on January 27, 2020” and that Defendant “failed to act on Plaintiff’s claim before March 12, 2020 …. Pursuant to California Government Code §912.4(c), Plaintiff’s claim is deemed rejected by Defendant.” (Complaint, ¶¶ 9-10.)

Defendant further argues that Government Code section 946 bars Plaintiff’s lawsuit and deprives this Court of jurisdiction because Plaintiff has accepted payment of the claim in full. Section 946 states, in relevant part, “(a) If the claim is allowed in full and the claimant accepts the amount allowed, no suit may be maintained on any part of the cause of action to which the claim relates. (b) If the claim is allowed in part and the claimant accepts the amount allowed, no suit may be maintained on that part of the cause of action which is represented by the allowed portion of the claim.”

This argument fails for two reasons. First, a motion for judgment on the pleadings is an improper vehicle in which to consider Defendant’s evidence-based argument. Second, Defendant bases this argument on documents this Court declined to judicially notice.[3] Defendant fails to demonstrate that Plaintiff’s action is barred by section 946.

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

[1] In reply, Defendant argues that the Court should not consider Plaintiff’s opposition because it is untimely. The point is not well taken. To begin, Defendant’s motion was untimely. (Code of Civil Procedure section 1005, subdivision (b), which states “all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”) Defendant filed this motion 14 court days before the hearing. California Rules of Court, rule 3.1300, subdivision (d) states “[n]o paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” Nonetheless, the Court will exercise its discretion to consider the motion and the untimely opposition. Defendant further argues that Plaintiff has waived oral argument for failing to timely file opposition. This argument lacks merit. Defendant bases this argument on an outdated local rule—Los Angeles County Superior Court Rule 9.15—that has no equivalent in the current local rules.

[2] Failure to meet and confer may result in the continuance of the hearing.¿¿¿

[3] Exhibits 5, 6, and 7 also raise extrinsic matters that a court may not consider on a motion for judgment on the pleadings. Even if the Court granted Defendant’s request for judicial notice, those documents show that Plaintiff’s insurer, and not Plaintiff, accepted payment on a claim that Plaintiff’s insurer filed for property damage. Plaintiff’s claim, here, is based on bodily injury.