Judge Kerry Bensinger, Case 20STCV16861 2023-05-15 Tentative Ruling

MOVING PARTY: Defendant The People of the State of California, acting by and through the Department of Transportation

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. The motion was heard and argued on April 3, 2023. The Court issued a tentative ruling expressing an inclination to deny Defendant’s motion. However, based on Defendant’s oral argument, the Court continued the motion to allow the parties to brief the issue of governmental immunity.

Defendant filed supplemental briefing on April 24, 2023, and Plaintiff filed a response on May 3, 2023.

“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.) 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.)

If the motion for judgment on the pleadings is granted, it may be granted with or without leave to amend. (Code Civ. Proc., 438, subd. (h)(1).) “Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852 (emphasis added).)

Defendant requests that the Court take judicial notice of six documents.[1] Defendant makes this request pursuant to Evidence Code section 452. Defendant does not cite to the relevant subsection of 452 that provides for judicial notice of the records of the Department of General Services. Perhaps, Evidence Code section 452(h) applies. Plaintiff objects only to Exhibit 5. Even if the Court were to take judicial notice of the existence of the exhibit, the contents of the exhibit are hearsay and are the subject of dispute with respect to their significance. Defendant contends the document demonstrates the existence of a settlement between the Plaintiff and Defendant. Plaintiff disagrees. The Court declines to take judicial notice of Exhibit 5.[2]

The parties shall meet and confer in person or by telephone 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).) Defense counsel has not satisfied the meet and confer requirement. However, a failure to comply with the requirement shall not be grounds to grant or deny a motion for judgment on the pleadings.¿ (Code Civ.¿ Proc., § 439, subd. (a)(4).)¿ Therefore, the Court considers the merits of the motion.[3]

Defendant argues that the First Cause of Action for negligence based on Government Code section 815.2 fails to state a cause of action for three reasons: (1) the State and its employee are immune from suit because any claim against Parra is barred by the statute of limitation; (2) Plaintiff failed to comply with presentment requirements of Government Code section 950.6; and (3) Government Code section 946 bars that action as it was settled. 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. There is no civil immunity for Parra, therefore there is no civil immunity for Defendant.

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 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 pled that he 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 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.”

Defendant anchors its argument on the proposition that Plaintiff settled its case with Defendant. The central fixture of this argument is Exhibit 5. The Court declined to take judicial notice of Exhibit 5. As the factual predicate of the argument is not found in the complaint nor by judicial notice, Defendant’s Motion for Judgment on the Pleadings based upon the “settlement” theory and Gov. Code section 946 fails.

Moreover, Plaintiff argues he did not settle his case.[4] Instead, Defendant settled with the insurance company, suggesting that if Defendant intended to settle with the Plaintiff, the burden was on the Defendant to effectuate such a resolution. In any event, these are factual issues incompatible with a Motion for Judgment on the Pleadings.

After oral argument on April 3, 2023, the Court granted the parties an opportunity to address governmental immunity. However, Defendant’s supplemental briefing advances the same arguments and does not present any authority that compels a different result.

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.

[1] Confusingly, Defendant does not attach the six documents to the Request for Judicial Notice. Instead, the documents are attached to the Declaration of Matthew Campbell (which is itself attached to the Motion). Defendant further complicates matters by referencing the documents without indicating where those documents can be found.

[2] Defendant’s reliance on extrinsic evidence is improper. Defendant seeks to controvert the pleadings by submitting extrinsic evidence that is better suited for a motion for summary judgment. The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts the court may judicially notice. (Code Civ. Proc., § 438, subd. (d).) (Emphasis added.) Declarations or other extrinsic matters are improper. Therefore, discovery admissions or other evidence controverting the pleadings cannot be considered. Rather, the pleading under attack must be accepted as true. (Weil & Brown, The Rutter Group California Practice Guide, Civil Procedure Before Trial, Motion for Judgment on the Pleadings, ¶ 7:322; Cloud, supra, 67 Cal.App.4th at p. 999.)

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

[4] Plaintiff contends that unbeknownst to Plaintiff, Alliance United presented its own claim for the total loss the carrier paid out to Plaintiff. Defendant settled the property damage claim with Alliance United. Defendant has not settled Plaintiff’s claim for bodily injury, and Plaintiff has not signed any settlement release.