Judge: Melissa R. Mccormick, Case: Marshall v. State of California, Date: 2022-11-10 Tentative Ruling

Defendants State of California and J. Lee’s Demurrer to Complaint

Defendants State of California and J. Lee demur to plaintiff Denise Marshall’s complaint.  For the following reasons, the State’s demurrer is sustained with leave to amend and Lee’s demurrer is overruled.

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318.  A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations.  Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.  Questions of fact cannot be decided on demurrer.  Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.  Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice.  Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.

This lawsuit arises out of plaintiff’s contention California Highway Patrol Officer J. Lee negligently pushed plaintiff’s disabled vehicle off a freeway and down a sloping exit ramp causing plaintiff’s vehicle to collide with another vehicle.  The complaint alleges motor vehicle negligence and general negligence against the State and Lee.

In California, all government tort liability must be based on statute.  Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457; see also Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.  Plaintiff’s complaint does not identify any statutory basis for the State’s alleged liability.  The State’s demurrer to the first and second causes of action is sustained with leave to amend.

“A public employee is liable for injury caused by his act or omission to the same extent as a private person,” except as otherwise provided by statute.  Cal. Gov. Code § 820(a).  The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury.   McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.

Plaintiff’s complaint alleges sufficient facts to state causes for action for motor vehicle negligence and general negligence against Lee.  Lee’s demurrer to the first and second causes of action is overruled.

Defendants’ request for judicial notice is denied.

Should plaintiff desire to file an amended complaint that addresses the issues in this ruling, plaintiff must file and serve it by November 21, 2022.

Defendants to give notice.

Defendants State of California and J. Lee’s Motion to Strike Complaint

Defendants State of California and J. Lee move to strike the punitive damages allegations in plaintiff Denise Marshall’s complaint and plaintiff’s allegations in the second cause of action regarding the State’s allegedly negligent hiring, training, supervision, discipline, and retention of Lee.  For the following reasons, the motion is granted in part and denied in part.

To withstand a motion to strike punitive damages, a plaintiff must plead ultimate facts showing the plaintiff is entitled to such relief.  Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166; see also Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042 (complaint “devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud or malice” subject to motion to strike punitive damages allegations).

Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  Cal. Civ. Proc. Code § 3294(c)(1).  Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  Id. § 3294(c)(2). 

Plaintiff alleges Lee recklessly caused plaintiff’s collision by pushing plaintiff’s disabled vehicle off a freeway and down a sloping exit ramp.  Complaint ¶ GN-1.  The complaint does not allege sufficient facts demonstrating Lee acted with oppression, malice or fraud when he pushed plaintiff’s disabled vehicle toward the exit ramp.

Plaintiff also alleges Lee acted with oppression, malice and fraud by allegedly assigning himself to prepare the accident report after recklessly causing the accident, and shifting blame for the accident to plaintiff, “potentially blemishing her insurance rates, and making it more difficult for her to obtain recovery for injuries and damages.”  Complaint ¶ EX-1.  Plaintiff alleges Lee’s preparation of the report was dishonest, and a violation of policy, protocol and ethics.  Id.

California Government Code section 822.2 provides that a public employee is immune for negligent and intentional misrepresentation.  Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 40-41.  Plaintiff’s complaint does not allege sufficient facts demonstrating immunity would not apply here.  See Freeny v. City of San Buenaventura (2013) 216 Cal.App.4th 1333, 1344-45.  Indeed, plaintiff’s allegation that Lee’s alleged misrepresentation caused her financial harm appears to fall within section 822.2.  See id.  Defendants’ motion to strike plaintiff’s punitive damages allegations is granted with leave to amend.

In a concurrent order, the court sustained the State’s demurrer to the complaint with leave to amend.  The motion to strike the allegations in the second cause of action regarding the State’s allegedly “negligent hiring, training, supervision, discipline and retention” of Lee is thus denied as moot.

Should plaintiff desire to file an amended complaint that addresses the issues in this ruling, plaintiff must file and serve it by November 21, 2022.

Defendants to give notice.

Case Management Conference

The trial is scheduled for November 6, 2023 at 9:00 a.m. in Department C13.

Clerk to give notice.