SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

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. On April 28, 2023, the Court sustained Defendant State of California’s, acting by and through the California High Patrol, demurrer to Plaintiff’s complaint with leave to amend. 

On May 18, 2023, Plaintiff filed a First Amended Complaint (“FAC”) for (1) negligence; (2) vicarious liability; (3) violation of vehicle code 17001; and (4) negligence (Govt. Code 820(a)). CHP now demurs to the FAC as all four causes of action, even though only the second and third causes of action for vicarious liability and violation of vehicle code 17001 pertain to CHP. Plaintiff’s first cause of action and fourth cause of action is specific only to Defendant Rodney.  

 

 

c. Reply Argument 

In reply, CHP avers that it is not opposed to staying the action until Plaintiff’s motion for reconsideration of her late claim petition is resolved.  

 

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].) 

“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).) 

The Court finds CHP has fulfilled this requirement prior to filing the demurrer.  (Mot. Brown Decl. ¶ 2.) 

 

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.”  

“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.)  “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.)    

The legal effect of the motion for reconsideration currently pending in the related Case No. 21STCP03992 would have a determinative effect upon the instant motion in terms of satisfying the condition precedent claim presentation requirement. Therefore, in light of the arguments raised and the parties’ acquiescence to a continuance, the Court finds good cause to continue this hearing until a date after Plaintiff’s motion for reconsideration is heard. Plaintiff’s related motion for reconsideration is currently set to be heard on July 9, 2024 in Department 16.  

 

Therefore, the hearing on the motion is continued to ________________, 2024 at 1:30 p.m. in Department 31 of the Spring Street Courthouse. 

  

 

Moving party is ordered to give notice.   

 

 

Dated this 14th day of August 2023