Judge: Latrice A. G. Byrdsong, Case: 23STLC07203, Date: 2024-02-08 Tentative Ruling

Case Number: 23STLC07203    Hearing Date: February 8, 2024    Dept: 25

Hearing Date:                         Thursday, February 08, 2024

Case Name:                             AMY FANG GUO v. VICTOR HERNANDEZ

Case No.:                                23STLC07203

Motion:                                   Demurrer to Plaintiff’s Complaint

Moving Party:                         Defendant Victor Hernandez

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:                    Defendants’ Demurrer to Plaintiff’s Complaint is SUSTAINED without leave to amend.

Counsel for Defendant is directed to serve and electronically submit a proposed Judgment

of Dismissal within 10-days.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                      OK

[X] Correct Address (CCP §§ 1013, 1013a)                                      OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       OK 

OPPOSITION:          None filed as of January 26, 2024      [   ] Late          [X] None 

REPLY:                     Filed as of January 31, 2024               [   ] Late          [   ] None 

BACKGROUND

A. Factual

Plaintiff Amy Fang Guo (“Plaintiff”) files a complaint against CHP Officer Victor Hernandez (“Defendant”), alleging fraud through negligent and intentional misrepresentation stemming from alleged inaccuracies with a traffic collision report. Plaintiff’s complaint alleges a combined twenty (20) errors found on three versions of CHP reports, all without supporting details or evidence. When Plainitff pointed this out, Plainitff Alleges that Defendant insisted that no change would be made. Plaintiff alleges the representations were false because the three versions of the traffic collision report were dishonestly and deceptively produced, showed huge inconsistencies, and did not provide any supporting details. Plaintiff purports that the “truth is presented with her investigation result after studying, researching, examining, and measuring the accident location and consulting engineer for verification. Plaintiff also alleges that due to the alleged “false report,” Plaintiff’s auto insurance went up, and a faulty driver report was submitted to the DMV.

B. Procedural

On November 13, 2023, Plaintiff filed a cause of action against Defendant for fraud.

On December 14, 2023, Defendant filed the instant Demurrer to Plaintiff’s complaint. Plaintiff has not filed a reply in opposition to the instant Demurrer; however, Defendant has filed a reply brief on January 31, 2024, in which he proports that Plaintiff provided Defendant what appeared to be her opposition to the instant Demurer.

MOVING PARTY POSITION

            Defendant prays for the Court to sustain its demurrer and dismiss Plaintiff’s Complaint without leave to amend because Plaintiff’s cause of action for fraud fails to state sufficient facts to constitute a cause of action under CCP § 430.10. Defendant argues that Plaintiff’s complaint fails to state enough facts to have a cause of action because Defendant did not owe her a legal duty concerning traffic investigations and has statutory immunity under Government Code § 822.2 for intentional or negligent misrepresentations. Defendant further argues that Plaintiff fails to satisfy the heightened pleading standard to state a cause of action for fraud. Thus, for those reasons, Defendant contends that the Court should sustain the demurrer without leave to amend.  

OPPOSITION

            The Court notes that no opposition was filed with the Court. Defendant provides Plaintiff’s opposition by attaching Plaintiff’s opposition papers to his reply brief. Plaintiff’s opposition does not challenge the merits of the demurrer but instead demands responses to her special interrogatories.

REPLY

            In reply to Plaintiff’s “opposition,” Defendants assert that Plaintiff’s response does not provide any law or facts establishing that her allegations state a cognizable cause of action against Defendant. Defendant specifically calls out that Plaintiff provides no authority to dispute Defendant’s contention that he did not owe a legal duty to Plaintiff concerning the motor vehicle accident investigation. Moreover, Plaintiff does not cogently oppose Defendant’s entitlement to statutory immunity under Government Code § 822.2. Defendant argues that based on these deficiencies, the Court should construe Plaintiff’s response as a failure to properly oppose the demurrer and a concession on the merits and, therefore, sustain the demurrer without leave to amend.

ANALYSIS

I.          Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). 

II.        Discussion

Plaintiff files a cause of action for fraud stemming from Plaintiff’s belief that Defendant provided an inaccurate accident report. Specifically, Plaintiff alleges that Defendant negligently and intentionally misrepresented facts in the accident report.

            A. Meet and Confer Requirement

The demurring party must meet and confer in person or by telephone with the party who filed the pleading to resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Here, Defendant provides the Court with a declaration from its counsel, who states that on November 30, 2023, counsel wrote to Plaintiff to discuss Defendant’s objections to the Complaint. (Jamil R. Ghannam Decl. ¶ 2.) Plaintiff responded via email on December 01, 2023, disagreeing with Defendant’s position. (Id.; Exhs, A & B.) On December 08, 2023, counsel made further attempts to meet and confer with Plaintiff over the phone regarding Defendant’s objections to the Complaint. (Id. ¶ 3.) Counsel would make a subsequent attempt on December 12, 2023. (Id.) Both attempts yielded no response from Plaintiff, and counsel left a voicemail for Plaintiff in both attempts. (Id.) Counsel states that Plaintiff sent a second email but did not directly address Defendant’s objection to the Complaint that would be raised via demurrer. (Id.; Exh. C.) The parties have not reached an amicable resolution regarding defendants’ objections to the Complaint. (Id. ¶ 4.) Thus, the Court finds that Defendant has satisfied the meet and confer requirement under CCP § 430.41(a). 

The Court now moves to the merits of the demurrer.

B. First Cause of Action – Intentional Misrepresentation.

 Defendants demur as to the Plaintiff’s first cause of action as it fails to state sufficient facts to constitute a cause of action and is uncertain.

‘“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.”’ (Lazar v. Superior Court (1996) 12 C.4th 631, 638). ‘“Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.”’ (Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 C.3d 197, 216).” Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 C.A.4th 221, 234.

Plaintiff’s complaint alleges a combined twenty (20) errors found on three versions of CHP reports, all without supporting details or evidence, but that respondent insisted that no change would be made after Plaintiff repeatedly advised Defendant of the errors. (Compl. p. 4.) Plaintiff alleges the representations were false because the three versions of the traffic collision report were dishonestly and deceptively produced, showed huge inconsistencies, and did not provide any supporting details. (Id. p. 6.) Plaintiff purports that the “truth is presented with her investigation result after studying, researching, examining, and measuring the accident location and consulting engineer for verification.” (Id.; Attach. FR-2A & FR-2B.) Plaintiff also alleges that due to the alleged “false report,” Plaintiff’s auto insurance went up, and a faulty driver report was submitted to the DMV.

The Court notes that Plaintiff has not filed any opposition to the demurrer with the Court. Though Defendant provides what it purports is a copy of Plaintiff’s opposition, upon inspection of the attachment, Plaintiff does not substantially reply to the merits of the demurrer and only requests Defendant respond to her questions.

The Court finds that Plaintiff’s Complaint does not state sufficient facts to have a cause of action for fraud. Here, Plaintiff’s Complaint only alleges that the traffic collision report is false because it contains inconsistencies. Further, when Plaintiff tried to advise for corrections, Defendant refused. The Court notes that the Complaint does not adequately plead any facts showing an intent to defraud or induce reliance and whether that reliance was justifiable. In any case, the action would be barred because, as Plaintiff correctly points out, Gov. Code § 822.2 provides, “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional unless he is guilty of actual fraud, corruption or actual malice.” (Gov. Code § 822.2.) The Court knows of no conviction of actual fraud, corruption, or actual malice that would preclude Defendant from claiming the privilege. Thus, even if the Court were to provide Plaintiff with leave to amend her Complaint, there is no reasonable possibility she would be able to amend to overcome the statutory immunity presented under Gov. Code § 822.2. Therefore, the Court is not inclined to grant leave to Plaintiff to amend the Complaint and SUSTAINS Defendant’s Demurrer of Plaintiff’s Complaint.

Accordingly, the Court SUSTAINS Defendants’ Demurrer without leave to amend.

III.       Conclusion

Defendants’ Demurrer to Plaintiff’s Complaint is SUSTAINED without leave to amend.

Counsel for Defendant is directed to serve and electronically submit a proposed Judgment

of Dismissal within 10-days.

Moving parties are ordered to give notice.