Judge: Michelle C. Kim, Case: 19STCV26234, Date: 2023-04-11 Tentative Ruling

Case Number: 19STCV26234    Hearing Date: April 11, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

1.     Background 

On July 26, 2019, Plaintiff Marlene Jean (“Plaintiff”) filed a complaint against Defendants Dollar

Tree Stores, Inc., Park Aliso Commercial Center, Ltd., Watt Properties, Inc., and City of Mission Viejo (collectively “Defendants”).  The complaint alleges fives causes of action: (1) negligence; (2) premise liability; (3) product liability; (4) negligence against a public entity; and (5) dangerous condition on public property.  While walking on the sidewalk, Plaintiff allegedly stepped on a water meter box lid and her foot went through the lid and into the box, resulting in personal injuries. 

            On October 13, 2022, Cross-Complaints Park Aliso Commercial Center, Ltd., Dollar Tree Stores, Inc., and Coreland Companies Commercial Real Estate Services (collectively “Cross-Complainants”) filed a cross-complaint against El Toro Water District (“ETWD”).  On January 4, 2023, Cross-Complainants filed a first amended cross-complaint (“FACC”).  The FACC alleges six causes of action: (1) public nuisance pursuant to Civil Code § 3479; (2) dangerous condition of public property pursuant to Government Code §§ 835 and 835.2; (3) equitable/implied indemnity; (4) contribution; (5) apportionment of fault; and (6) declaratory relief.

            ETWD now moves for an order sustaining its demurrer to the FACC.  Cross-Complainants oppose the motion, and ETWD filed a reply.

ETWD demurs to the FACC arguing the following.  First, the FACC fails to state facts sufficient to constitute a cause of action because it does not demonstrate that any claim was presented to ETWD pursuant to Government Code §§ 905 and 915.  Second, the FACC fails to state facts sufficient to constitute a cause of action because it does not demonstrate that a claim was timely presented to ETWD pursuant to Government Code §§ 901 and 911.2.  Third, the FACC’s first and second causes of action fails to state facts sufficient to constitute a cause of action because the purported claim attached to the pleading does not included these claims as required by Government Code § 910.  Fourth, the FACC fails to state facts sufficient to constitute a cause of action because it fails to allege claims and/or damages that fall within the Government Code § 905(1) “Pedestrian Mall Law of 1960” exception.  Fifth, the pleading is uncertain because it is ambiguous.

In opposition, Cross-Complainants primarily argue that their claim is timely because an action for equitable indemnity does not accrue until such defendants have suffered an actual loss through payment of a settlement or judgement.  In support, Cross-Complainants cite People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744, 163.  Second, Cross-Complainants argue that their first and second causes of action are sufficiently reflected in their government claim.  But Cross-Complainants concede that the subject property does not conform to the Government Code § 905(1) “Pedestrian Mall Law of 1960” exception.  Third, Cross-Complainants request leave to amend should the Court sustain the demurrer because they have time as yet to resubmit and/or amend their claim.

In reply, ETWD argues that the opposition further established that no claim was ever tendered to ETWD prior to the filing of the cross-complaint.  Because Cross-Complainants failed to comply with Government Code §§ 905 and 915, the entirety of the FACC fails to state facts sufficient to constitute a cause of action.  Second, ETWD also argues the opposition relies on People ex rel. Dept. of Transportation that which was superseded by statute when the Government Code § 901 was amended.  Third, the opposition does not controvert that the purported claim tendered ETWD did not include the first and second causes of action.  Fourth, leave to amend should not be granted because the defects cannot be cured.    

2. Demurrer 

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 (complaint, answer or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.) 

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, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered.  (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

a.       Meet and Confer  

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).)   

The Court finds Defendant has fulfilled this requirement prior to filing its demurrer.  (Demurrer Wendelstein Decl. ¶¶ 3-6.) 

b.       Government Code §§ 905 and 915

Government Code § 905 requires all claims for money or damages against a local public entity to be presented to that entity, with certain exceptions not applicable here, as conceded by the cross-complainants.  (Gov. Code § 905.)  Government Code § 915 requires such claims to be delivered to the clerk, secretary, or auditory thereof, or mailed to the clerk, secretary, auditor, or to the governing body at its principal office.  (Gov. Code § 915.)

Here, the “CLAIM FOR MONEY DAMAGES AGAINST THE COUNTY OF ORANGE” is attached as Exhibit “A” to the FACC.  The claim was mailed “to the Clerk of the Board of Supervisors.”  (FACC, p. 5.)  The claim provides the address of the “Clerk of the Board of Supervisors” as 333 W. Santa Ana Blvd., Suite 365, Santa Ana, CA.  (FACC, Ex. “A”.)   But the claim provides “El Toro Water District” in item 11 “Name(s) of County employee(s) causing damage/injury/loss, if know.”  (Ibid.)  The claim provides ETWD’s address as 24251 Los Alisos, Blvd., Lake Forest, CA.  (Ibid.)

Cross-Claimants argue that no prior claim was required because the cross-complaint was filed prior to the accrual of their causes of action for equitable indemnity.  Cross-Claimants also argue they have substantially complied with requirements for a valid claim. 

It is undisputed that the claim was mailed to the Clerk of the Board of Supervisors at 333. W. Santa Ana Blvd., Suite 365, Santa Ana, CA, which is not the address of the El Toro Water District. Cross-Claimants cite no authority for the proposition that the “Board of Supervisors” is the governing body of the El Toro Water District, and only provide a conclusory statement stating “the incident occurred on the sidewalk located within in the County of Orange and ETWD is a special district of the county. The doctrine of ‘substantial compliance’ is not applicable where a claim is not addressed to the public entity which the cross-claimant seeks to charge. (See Jackson v. Bd. of Ed. of City of Los Angeles (1967) 250 Cal. App. 2d 856, 860).

Therefore, Cross-Complainants failed to deliver a code compliant claim to ETWD pursuant to Government Code §§ 905 and 915.  The demurrer can be sustained on this basis alone, and there is no need to reach the other arguments at this time.

ETWD’s demurrer is sustained with leave to amend pursuant to CCP §430.l0(e).

Moving party is ordered to give notice.

PLEASE TAKE NOTICE: 

·         Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

·         If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

·         Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

·         If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

Dated this 11^th day of April 2023