Judge Michelle C. Kim, Case 20STCV39865 2023-04-28 Tentative Ruling

October 16, 2020, Plaintiff, Sharon Smith (“Plaintiff”) filed this action against Defendants California Highway Patrol (“CHP”) and Pearl Rodney (“Rodney”) (collectively, “Defendants”) for damages arising from a motor vehicle accident. The Complaint, which was filed on Judicial Council form PLD-PI-001, states that causes of action for motor vehicle and general negligence are attached. (Compl. ¶ 10.) However, only a cause of action for motor vehicle negligence is attached. Further, the Complaint alleges that Plaintiff was required to and did comply with applicable claims statutes. (Compl. ¶ 9.)

Defendant CHP now demurs to the Complaint arguing that Plaintiff failed to comply with the Government Claims Act’s claim presentation requirements. Further, CHP contends that the Complaint is uncertain. The demurrer is unopposed.

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includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.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.)

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).)

CHP fulfilled this requirement prior to filing the demurrer. (Demurrer Brown Decl. ¶ 2.)

CHP requests judicial notice be taken of Plaintiff’s Petition for Relief from Government Code § 945.4 that was filed and set for hearing in Department 16 of the Stanley Mosk Courthouse. The request is granted. (Evid. Code § 452(d).) Further, the Court on its own motion takes judicial notice of the records and filings in this matter, including Plaintiff’s Motion for Relief from Late Claim filed September 20, 2021. (Id.)

Government Code § 945.5 provides, “No suit for damages may be maintained against a public entity unless the claim has been presented to it.”

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.” Government Code § 945.6 provides in relevant part:

(e) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit 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 must be commenced:

(e) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.

“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.)

“ ‘[A] plaintiff may allege compliance with the claims presentation requirement in the Government Claims Act by including a general allegation that he or she timely complied with the claims statute.’ ” (Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 552.) “When a pleading states that the plaintiff has complied with the claims statute, it has properly pleaded an ultimate fact—that is, the statement of compliance is not a conclusion of law.” (Id. at 552 n. 4.) Accordingly, “plaintiffs are allowed to plead compliance with the claims presentation requirement in the Government Claims Act using a general allegation.” (Id. at 554 [finding plaintiff properly pled compliance with claim presentation requirement of the Act by checking boxes for items 9.a on Judicial Council form PLD–PI–001].)

Here, the Complaint alleges that Plaintiff complied with the applicable claims statutes. (Compl. ¶ 9.) However, the judicially noticeable evidence shows that on September 29, 2021, Plaintiff filed a motion for relief from late claim in this action providing that Plaintiff was seeking relief from the failure to present a timely government claim for damages to CHP.[1] Thereafter, Plaintiff filed a Petition for Relief from Government Code § 945.5 in Department 16 of the Stanley Mosk Courthouse. This later filed petition similarly seeks relief from Plaintiff’s failure to file a government claim within one year of the subject accident. Furthermore, the court’s records in Los Angeles Superior Court Case No. 21STCP03992 show that Plaintiff’s petition for an order relieving Plaintiff from the provisions of Government Code § 945.5 was denied on February 28, 2023.

The judicially noticeable evidence, thus, shows that Plaintiff failed to comply with the applicable claims presentation statutes. The Complaint does not otherwise plead that Plaintiff is excused from compliance with the claims statutes. Plaintiff does not oppose the demurrer or otherwise dispute these contentions.

Moreover, the Complaint states that there are two causes of action attached, but there is only a single cause of action for motor vehicle negligence attached thereto. Further, although the complaint alleges the accident occurred on April 18, 2020, the Complaint fails to list the place of the accident. Consequently, the Complaint is uncertain on its face.

Defendant’s demurrer to the complaint is sustained as to the first and second causes of action.

Because Plaintiff has a motion for reconsideration regarding her petition being denied pending, and because allegations about the location of the accident and number of claims can be clarified, the Court finds there is a reasonable possibility Plaintiff can amend the Complaint.

Defendant’s demurrer is sustained to the first and second causes of action with twenty (20) days leave to amend.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] The motion was denied without prejudice on October 28, 2021, in part due to Plaintiff failing to serve the motion on Defendants in compliance with the Code, which required service on the Attorney General.