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 this action against Defendants Dollar Tree Stores, Inc, Park Aliso Commercial Center, LTD, Watt Properties, Inc. and City of Mission Viejo for injuries related to Plaintiff allegedly stepping on a water meter box lid and her foot going through the lid and into the box. On September 4, 2019, Dollar Tree Stores, Inc. filed a cross-complaint for express indemnification, equitable indemnification, equitable contribution, and declaratory relief against Roes 1-24. In December 2020, Plaintiff dismissed Watt Properties, Inc. and City of Mission Viejo. On December 15, 2020, Plaintiff filed an Amendment to Complaint naming Coreland Commercial Real Estate Services as Doe 1. 

As relevant to this proceeding, on October 13, 2022, defendants Park Aliso Commercial Center, LTD. (“Park Aliso”), Dollar Tree Stores, Inc. (“Dollar Tree”), and Coreland Companies Commercial Real Estate Services, erroneously sued and served as Coreland Commercial Real Estate Services (“Coreland”) (collectively, “Defendants”) filed a cross-complaint against El Toro Water District (“ETWD”) for 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. On January 4, 2023, Defendants filed a First Amended Cross-Complaint (“FACC”) against the ETWD and Roes 1-24. One May 5, 2023, Defendants filed a Second Amended Cross-Complaint (“SACC”) against ETWD and Roes 1-10.  

ETWD now demurs to the SACC arguing that Defendants did not demonstrate a government claim was presented prior to filing the SACC and that, even if it did, the government claim was not timely presented. Further, ETWD contends that Defendants fail to state sufficient facts to constitute causes of action for public nuisance and dangerous condition of public property against it because the cause of action was not included in the original claim. EWTD further requests that the SACC be stricken because it was untimely filed, and to strike Defendants’ requests for injunctive relief. ETWD further moves to strike the entirety of the SACC, and moves to strike the requests for injunctive relief. Defendants oppose the motions, and ETWD replies.  

Defendants argue that its counsel had no opportunity to prepare a SACC within the timeframe of the notice of ruling, and that Plaintiff’s counsel declined to provide Defendants an extension to file a SACC. Further, Defendants aver they served ETWD an Amended Claim Letter reasserting the indemnity claims and claims for nuisance and dangerous condition of public property, which is attached as an exhibit to Defendants’ SACC. On May 8, 2023, ETWD responded to the Amended Claim Letter that the claim was not timely presented and that Defendants must apply for leave to present a late claim. On July 18, 2023, Defendants applied for leave to present a late claim to ETWD by certified mail. Defendants request a continuance pending the decision on the tendered late claim. 

c. Reply Argument 

In reply, ETWD argues that Defendants’ initial claim was tendered to the wrong entity, and that at no time prior to the filing of Defendants’ cross-complaint did Defendants tender a government claim to ETWD in compliance with Government Code §905 and §915. ETWD reasserts that Defendants’ cross-complaint is untimely based upon the date of the filing of Plaintiff’s Complaint on July 26, 2019. Furthermore, ETWD contends that any application for leave to file a late claim must be one year from the accrual of the cause of action pursuant to Government Code §911.4, which has since passed. 

 

2. Request for Judicial Notice 

a. ETWD’s Requests for Judicial Notice 

ETWD requests the Court to take judicial notice of (1) Plaintiff’s Complaint in this underlying action; (2) Stipulation and Order to Allow Defendants to File Cross-Complaint Pursuant to CCP Section 426.50; (3) Defendants’ Cross-Complaint; (4) Proof of Service of Defendants’ Cross-Complaint; (5) Defendants’ First Amended Cross-Complaint (“FACC”); (6) Ruling on Defendants’ FACC; (7) Defendants’ Second Amended Cross-Complaint (“SACC”); (8) Proof of Service of Complaint on Dollar Tree; (9) [sic] Proof of Service of Complaint on Park Aliso; and (10) [sic] Notice and Acknowledgment of receipt of complaint by Coreland.  

Requests 1, 3, 5, and 7 are granted to the extent that courts can take judicial notice of the fact that complaints were filed, but not of the truth of the statements contained in those. (Arce v. Kaiser Foundation Health Plan, Inc.  (2010) 181 Cal.App.4th 471, 483.) 

Requests 2, 4, 6, 8, 9, and 10 are granted to the extent that judges cannot take judicial notice of hearsay statements asserted in court filings, but can take judicial notice of the existence of such documents.  (Johnson & Johnson v. Sup. Ct. (2011) 192 Cal.App.4th 757, 768;  Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 130 n. 7  (judges may take judicial notice of the existence of court documents, “but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”). 

 

b. Defendants’ Requests for Judicial Notice 

Defendants request the Court to take judicial notice of (1) El Toro Water District’s “Response to ‘Amended Claim Letter’ dated March 20, 2023” and (2) Cross-Complainants’ July 18, 2023 “Request for Leave to Present Late Claim” sent by certified mail to ETWD. 

Request 1 is granted. The request is granted because these documents are official acts of a public entity. (Evid. Code, section 452, subd. (b).) However, the truth of the matters asserted in these documents is not subject to judicial notice. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564–1565.) Cross-Complainants’ claim itself is also judicially noticed as to its filing and contents, but not as to its truth. (See Gong v. City of Rosemead, 226 Cal. App. 4th 363, 368 n.1 (2014) (“The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.”).) Request 2 is denied.  

 

3. 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.) 

“Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”  (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.) In ruling upon demurrers, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.”  (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665.) “[A] pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless.”  (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) Courts will not consider affidavits filed in opposition to a demurrer, but only the pleading and judicially noticeable matters.  (Knickerbocker v. City of Stockton (1988) 199 Cal. App. 3d 235, 239.) 

 

a. Meet and Confer  

Under Code of Civil Procedure section 430.41, subdivision (a), before filing a demurrer, the objecting party shall meet and confer with the opposing party for the purpose of determining whether an agreement can be reached to resolve the objections to the pleading. The meet and confer shall be completed at least five (5) days before the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) The meeting and conferring party is required to “identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (Code Civ. Proc., § 430.41, subd. (a)(1).) The meet and confer shall be by telephone or in person. (Code Civ. Proc., § 430.41, subd. (a).) 

However, section 430.41 does not contain any penalties for the failure to follow the meet-and-confer process set forth in subdivision (a)(1). Indeed, subdivision (a)(4) provides that “[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (See also Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 245-246.) 

The Court finds ETWD has fulfilled this requirement prior to filing the demurrer.  (Dem. Wendelstein Decl. ¶ 3-4.) 

 

b. Analysis 

Government Code § 945.5 provides, “No suit for damages may be maintained against a public entity unless the claim has been presented to it.” Further, California Government Code § 911.2(a) states, “[a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” Upon presentation of the claim, the entity may: 1) approve the claim, (2) reject the claim, (3) give notice the claim is insufficient, or (4) do nothing. (Gov. Code § 912.6.) If the public entity sends proper written notice of the rejection, plaintiff has six months thereafter to file suit against the entity. (Gov. Code § 945.6, subd. (a)(1); see Gov. Code §§ 912.6, 912.8.) If the public entity fails to send proper written notice of the rejection, plaintiff has two years from the accrual of the cause of action to file suit against the entity. (Gov. Code § 945.6, subd. (a)(2).) 

“The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity [Citation]. The act creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint.”  (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) 

“A public entity cannot be sued for tort unless (1) a timely written claim has previously been presented to the governmental entity, (2) any late claim has been presented to the public entity and been excused by it or the court, or (3) conditions described by Government Code section 946.4 … have been met.”  (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 483.)   

“The failure to timely present a proper claim … bars a plaintiff from filing a lawsuit against that entity. [Citation.]”  (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.)  Thus, “[e]ven if the public entity has actual knowledge of facts that might support a claim, the claims statutes still must be satisfied. [Citation.]”  (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990.)  “The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail.”  (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 767.)    

 

Further, Gov. Code § 901 provides:  

For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon. However, the date upon which a cause of action for equitable indemnity or partial equitable indemnity accrues shall be the date upon which a defendant is served with the complaint giving rise to the defendant's claim for equitable indemnity or partial equitable indemnity against the public entity.  

(Gov. Code § 901.) (Emphasis added.)  

 

Failure to allege facts in the complaint demonstrating compliance with the pre-litigation governmental claims presentation requirements subjects the complaint to a general demurrer. (State of Calif. v. Sup. Ct. (2004) 32 Cal.4th 1234, 1239; see also V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509 [affirming trial court decision to sustain demurrer without leave to amend on the ground that plaintiff’s failure to timely comply with the requirements of the Tort Claims Act barred her action].) A plaintiff must comply with the claim presentation requirements even if the entity has actual knowledge of the circumstances surrounding the claim. (City of San Jose v. Sup. Ct. (1974) 12 Cal.3d 447, 455.) 

 

Here, the Complaint alleges in pertinent part: 

 

“1. On or about July 26, 2019, Plaintiff MARLENE JEAN (“Plaintiff”), filed a Complaint for Damages, in the Superior Court, County of Los Angeles, Case No. 19STCV26234, against Defendants… 

 

…. 

 

9. Cross-Complainants are informed and believe and upon such information and belief allege that at all times mentioned herein, including the date of the Incident, Cross-Defendant, EL TORO WATER DISTRICT (“ETWD”), was and is a special district of the County of Orange and public entity organized and existing pursuant to the laws and constitution of the State of California, and a member agency of the Orange County Water District. 

 

10. EL TORO WATER DISTRICT is a water district that is a member agency of the Orange County Water District, formed since 1960 as a special district under the laws applicable to California water districts (Sections 34000 Et Seq of Water Code of the State of California). The service area of EL TORO WATER DISTRICT includes Mission Viejo where the subject Property is located; services provided include servicing of water meters.” 

… 

19. Pursuant to Government Code Section 900, et seq., on March 20, 2023, Cross-Complainants submitted an Amended Claim Letter to the El Toro Water District, as ETWD does not have a Claim Form that claimants can utilize, asserting their Nuisance and Dangerous Condition of Public Property, as well as reasserting their indemnity claims, related to the Subject Water Meter and its continuous condition that has not been properly addressed by ETWD to the present. A true and correct copy of Amended Claim Letter submitted to ETWD with exhibit is attached hereto and incorporated therein as Exhibit "A." Previously, on July 21, 2022, Cross-Complainants had also mailed to a general Claim for Money or Damages Against the County of Orange, to the Clerk of the Board of Supervisors, identifying Cross-Defendant El Toro Water District as the entity causing damage, injury, and loss. A copy of this Claim was attached to and incorporated with the Amended Claim Letter sent to the El Toro Water District. 

(SACC ¶¶ 9, 10, 19.)  

 

Plaintiff filed her action against Defendants on July 26, 2019. ETWD was not a party to this case until October 13, 2022, when Defendants filed their initial cross-complaint against ETWD. Subsequently Defendants filed a FACC on January 4, 2023, and after the Court sustained ETWD’s demurrer to the FACC, Defendants filed a SACC on February 1, 2023. A defendant's equitable indemnity cause of action against a public entity accrues, thus triggering the beginning of the statutory claims presentation period, upon the service of the complaint that contains the cause of action for which indemnity is sought. (Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090.) “‘A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is “wholly derivative....” [Citations.] This rule “is often expressed in the shorthand phrase ‘... there can be no indemnity without liability.’ ” [Citation.]’ ” (Id. at 1099.)   

Plaintiffs served Defendants the summons and complaint on August 9, 2019. Gov. Code, § 901 creates a special accrual date for pursuing equitable indemnity claims against the government. It changes the rule previously established in case law that an indemnity claim did not accrue until the party seeking indemnity paid the underlying liability, and permitting the defendant to file an anticipatory cross-complaint for equitable indemnity against a public entity without being required to present a claim on the cause of action that had not yet accrued. Additionally, the provision is categorical and unambiguous, leaving no room for introduction of a late discovery exception by judicial interpretation. (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480.) A public entity is subject to suit only if claim has been presented within time limit prescribed by §900 et seq. (Wozniak v. Peninsula Hospital (App. 1 Dist. 1969) 82 Cal.Rptr. 84.) Government Code section 911.2 requires that a claim for damages be filed “not later than six months after the accrual of the cause of action.” (Gov. Code § 911.2; see Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1263-1264.)  

In effect, when an action is filed against a party, they must immediately determine whether there is a possible cause of action for indemnity against a public entity. If there is, then they must comply with the claim presentation requirements; the time for doing so beginning to run on the date of service with the underlying complaint, or be barred from any remedy against the entity. Here, the underlying complaint alleges negligence, premise liability, product liability, negligence against a public entity, and dangerous condition of public property related to a water meter box. Therefore, Plaintiff’s complaint triggered the claims filing period for Defendants’ equitable indemnity cross-complaint against ETWD.  

In ruling upon demurrers, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.”  (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665.) Defendants expressly incorporated ‘Exhibit “A”’ attached to the SACC. Exhibit “A,” entitled “Amended Claim Letter,” (“Claim Letter”), provides that Defendants’ counsel sent a letter addressed to ETWD’s Claims Processing on March 20, 2023, together with the July 15, 2022 claim to the County of Orange. Despite Plaintiff having served Defendants on August 9, 2019, Defendants did not present a claim for damages to ETWD until either July 15, 2022 (if the Court accepts Defendants’ substantial compliance argument) or March 20, 2023 (“Amended Claim” to ETWD). Without the Court needing to reach the arguments as to whether the July 15, 2022 claim to the County of Orange is in substantial compliance with Government Code section § 910, the earliest date Defendants presented a claim for damages was two years and eleven months after the action had accrued. The timely presentment of a claim for damages is a condition precedent to maintain a cause of action, and Defendants’ time to present any equitable or non-equitable claims arising from the underlying action has long since lapsed.  

The burden is on Defendants to show in what manner they can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)  Defendants request to continue the hearing pending ETWD’s response to the request to present a late claim is denied, because the time to present a late shall not exceed one year after the accrual of the cause of action. (Cal. Gov. Code § 911.4(b).) As already established, Defendants presented their claim, at earliest, nearly three years after the action had accrued. Therefore, allowing additional time would not cure the defect.   

Based on the foregoing, ETWD’s demurrer is sustained without leave to amend. Given the ruling sustaining the demurrer without leave to amend, ETWD’s motion to strike is moot.   

 

ETWD is ordered to give notice.   

 

 

Dated this 11th day of August 2023