Judge: Michael P. Linfield, Case: 22STCV00592, Date: 2023-05-05 Tentative Ruling
Case Number: 22STCV00592 Hearing Date: May 5, 2023 Dept: 34
SUBJECT: Demurrer and
Motion to Strike
Moving Party: Defendant
Gina Skibar
Resp. Party: Plaintiff Armando Jose Mendoza
Defendant
Gina Skibar’s Demurrer is OVERRULED.
Defendant
Gina Skibar’s Motion to Strike is DENIED.
BACKGROUND:
On January 6,
2022, Plaintiff Armando Jose Mendoza filed Complaint against Defendants City of
Montebello, Thomas Charles Herbert, and Tristar Insurance Group, Inc. regarding
car-related injuries Plaintiff suffered.
On February
10, 2023, Plaintiff filed his Third Amended Complaint (TAC). The current
Defendants in this matter are City of Montebello, Thomas Charles Herbert, and
Gina Skibar. The current causes of action are: (1) public entity liability
pursuant to Government Code section 815.2 (only against Defendants City of
Montebello and Thomas Charles Herbert); and (2) intentional misrepresentation
(only against Defendant Gina Skibar).
On March 6,
2023, Defendant Gina Skibar filed: (1) Demurrer to Third Amended Complaint
(“Demurrer”); and (2) Motion to Strike. Defendant Skibar concurrently filed:
(1) Declaration of Nancy Doumanian; and (2) Proposed Order.
On March 7,
2023, Defendant City of Montebello and Thomas Charles Herbert filed their
Answer to the TAC.
On March 16,
2023, Plaintiff filed: (1) Opposition to Defendant Gina Skibar’s Demurrer to
Plaintiff’s TAC (“Opposition to Demurrer”); and (2) Opposition Defendant
Skibar’s Motion to Strike (“Opposition to Motion to Strike”).
At the
originally-scheduled hearing on April 21, 2023, there was substantial oral
argument on meaning of the phrase “unless he is guilty of actual fraud, corruption or actual
malice” in Gov’t. Code
§822.2. The Court continued the hearing
to allow both parties to submit supplemental briefs on the issue. Neither party filed any supplemental brief.
ANALYSIS:
I.
Demurrer
A. Legal Standard
A demurrer is a pleading used to test the
legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the
function of the demurrer to challenge the truthfulness of the complaint; and
for purpose of the ruling on the demurrer, all facts pleaded in the complaint
are assumed to be true, however improbable they may be. (Code Civ. Proc., §§
422.10, 589.)
A demurrer can be used only to challenge
defects that appear on the face of the pleading under attack; or from matters
outside the pleading that are judicially noticeable. (Blank v. Kirwan
(1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under Code of Civil Procedure
section 430.10 (grounds), section 430.30 (as to any matter on its face or from
which judicial notice may be taken), and section 430.50(a) (can be taken to the
entire complaint or any cause of action within).
A demurrer may be brought under Code of Civil
Procedure section 430.10, subdivision (e) if insufficient facts are stated to
support the cause of action asserted. A demurrer for uncertainty (Code of Civil
Procedure section 430.10, subdivision (f)), is disfavored and will only be
sustained where the pleading is so bad that defendant cannot reasonably
respond—i.e., cannot reasonably determine what issues must be admitted or
denied, or what counts or claims are directed against him/her. (Khoury v.
Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the
pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)
B. Discussion
Defendant
Gina Skibar (“Defendant”) only demurs to the second cause of action in the
Third Amended Complaint for intentional misrepresentation.
1. Legal Standard for Intentional
Misrepresentation
“The elements of a cause of action for
intentional misrepresentation are (1) a misrepresentation, (2) with knowledge
of its falsity, (3) with the intent to induce another’s reliance on the
misrepresentation, (4) actual and justifiable reliance, and (5) resulting
damage.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th
1150, 1166.)¿¿¿
¿¿
The facts constituting the alleged fraud must
be alleged factually and specifically as to every element of fraud, as the
policy of “liberal construction” of the pleadings will not ordinarily be
invoked. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645.)¿¿¿
2. Discussion
Defendant
argues: (1) that the TAC does not allege any compliance with the government
claims presentation requirements as to Defendant; (2) that Defendant is immune
from suit for intentional misrepresentation under Government Code section
822.2; (3) that Plaintiff has not alleged facts sufficient to support a cause
of action for intentional misrepresentation; and (4) that this cause of action
preempts summary judgment and is not a standalone cause of action. (Demurrer,
pp. 2:20–21, 3:18–19, 4:9–10, 5:7–8, 6:1–2, 7:16–17, 8:7–8, 9:3–4, 9:15–17.)
Plaintiff
opposes the Demurrer, arguing that Plaintiff has pleaded sufficient facts to
state a cause of action against Defendant for intentional misrepresentation.
(Opposition to Demurrer, p. 4:1–2.)
a. Sufficiency of the Allegations
Among other things, Plaintiff alleges the
following in the TAC: (1) that Defendant, who was an employee of Defendant City
of Montebello at the time of the incident, went to the location where Plaintiff
was run over and interviewed witnesses to the incident at that location; (2)
that Defendant was concerned the value of Plaintiff’s claim for the incident
could be over one million dollars; (3) that Defendant left the scene, went to
Plaintiff’s hospital room, and induced Plaintiff to sign a release for
$6,000.00 by promising him a place to live; (4) that Defendant further induced
Plaintiff to leave the hospital and stay at a hotel set up by Defendant City of
Montebello, despite Plaintiff’s need to continue medical treatment; (5) that
Plaintiff relied on these misrepresentations; (6) that Defendant knew she was
making false representations to Plaintiff at the time Defendant made the
representations; and (7) that Plaintiff has suffered damages as a direct and
proximate result of these acts. (TAC, ¶¶ 5, 28–33, 35.)
Assuming
as true these allegations for the purpose of the Demurrer, Plaintiff
sufficiently pleads the elements of, and meets the heightened pleading standard
for, a cause of action of intentional misrepresentation.
b. Public Employee Immunity
“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.)
Here,
Plaintiff claims that Defendant is liable for the cause of action of
intentional misrepresentation, which is a form of fraud. Whether Defendant is
guilty of fraud, corruption, or actual malice involves questions of fact that
cannot be resolved on a demurrer. As these pleadings for a cause of action of
intentional misrepresentation are sufficient to withstand demur, the cause of
action is also sufficient to withstand demur on the affirmative defense of
public employee immunity pursuant to Government Code section 822.2.
c. Government Tort Claims Act
“There shall be presented in accordance with Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with Section 910) all
claims for money or damages against local public entities except any of the
following: . . . (h) Claims that relate to a special assessment constituting a
specific lien against the property assessed and that are payable from the
proceeds of the assessment, by offset of a claim for damages against it or by
delivery of any warrant or bonds representing it.” (Gov. Code, § 905, subd.
(h).)
“Except as provided in Sections 946.4 and 946.6, no suit for
money or damages may be brought against a public entity on a cause of action
for which a claim is required to be presented in accordance with Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with Section 910) of
Part 3 of this division until a written claim therefor has been presented to
the public entity and has been acted upon by the board, or has been deemed to
have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3
of this division.” (Gov. Code, § 945.4.)
Here,
Plaintiff alleges: (1) that on September 10, 2021, Plaintiff filed with
Defendant City of Montebello a government claim form; and (2) that Plaintiff’s
claim was rejected by Defendant City of Montebello. (TAC, ¶¶ 13–14.)
Defendant
argues that the pleading is deficient because it does not allege that the
government claim specifically identified Gina Skibar as the public employee
responsible for causing him harm. (Demurrer, p. 3:9–17.) In support of this
argument, Defendant cites Fall River Joint Unified Sch. Dist. v. Super. Ct. (1988)
206 Cal.App.3d 431, 434.
The
Court disagrees. The Government Tort Claims Act protects the public agency from
suit; it does not protect the public employee from suit. (Julian v. City of
San Diego (1986) 183 Cal.App.3d 169, 176 (“[W]e conclude the trial court
properly denied the petition for relief from the claim filing requirements of section 945.4 because a separate claim against the City employees was not
required to be presented to and acted upon by the City before suit against the
employees could be commenced.”)
Thus, the
Government Tort Claims Act is irrelevant regarding the second cause of action,
which is solely directed at Defendant, who is an employee and not a public
entity or agency.
C. Conclusion
The Court
OVERRULES the Demurrer to the second cause of action of intentional
misrepresentation.
II.
Motion to Strike
A. Legal Standard
Any party, within the time allowed to respond
to a pleading, may serve and file a notice of motion to strike the whole or any
part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a
portion of a pleading shall quote in full the portions sought to be stricken
except where the motion is to strike an entire paragraph, cause of action,
count or defense. (California Rules of Court Rule 3.1322.)¿¿¿¿¿
¿¿¿
The grounds for a motion to strike shall
appear on the face of the challenged pleading or form any matter of which the
court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court
then may strike out any irrelevant, false, or improper matter inserted in any
pleading and strike out all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Code Civ. Proc., § 436.) When the defect which justifies striking a complaint
is capable of cure, the court should allow leave to amend. (Perlman v.
Municipal Court (1979) 99 Cal.App.3d 568, 575.)¿¿¿¿¿
B. Discussion
The Motion to
Strike is substantively identical to the Demurrer; it does not make any
arguments other than those presented in the demurrer. The Court overruled the
Demurrer. The Court similarly DENIES the Motion to Strike.
C. Conclusion
The Motion to Strike is DENIED.