I. BACKGROUND 

On April 13, 2021, Plaintiff Barbara Spatz (“Plaintiff”) filed this action against defendants City of Bell Gardens (“the City”), County of Los Angeles (“the County”), and State of California for an alleged dangerous condition of public property, wherein Plaintiff fell when she rode her bicycle over a non-cross-hatched vertical grate. Plaintiff alleges the non-cross-hatched vertical grate in the bike lane of westbound Florence Ave. near the intersection of Emil Avenue constituted a dangerous condition. (Compl. ¶ 10.) The complaint sets forth a single cause of action for dangerous condition of public property pursuant to Gov. Code §§ 835 and 830.6.  

Trial is currently set for June 10, 2024.  

On February 27, 2024, both the County and the City (collectively, “Defendants”) jointly filed the instant motion for judgment on the pleadings on the grounds that this Court has no jurisdiction over the subject action. Plaintiff opposes the motion, and Defendants filed a reply. 

Defendants argues Plaintiff is suing on a factual basis not reflected in her tort claim to them, because her tort claim states that she was riding her bicycle westward on Florence Avenue “approaching” the intersection of Emil Ave., but at her deposition, she stated the incident occurred after she “crossed through” the intersection of Florence Ave. and Emil Ave. Defendants argue because of this single word difference, her present action was not “fairly reflected” in the tort claim and therefore cannot pursue her claim against Defendants. 

Plaintiff asserts her claims to both the City and County provided that she was riding her bicycle approaching the intersection with Emil Ave. when the front tire of her bicycle got stuck on a non-cross-hatched vertical grate located on the right side of the marked bike lane. Plaintiff then attached five photographs to her claim, which depicts the catch basin located on the right side of the marked bike lane on the west side of the intersection. Further, Plaintiff contends Defendants misstate the wording of her tort claim and the complaint. The complaint provides she was approaching the intersection “when” her tire caught in the catch basin, and that the word “when” changes the perception of the location of the catch basin. Additionally, she argues the City has sufficient information of the grate at issue, such that it was able to file a motion for summary judgment. Lastly, Plaintiff argues the motion is untimely on the grounds of laches.  

Defendants reiterate that the factual basis for recovery was not fairly reflected in her claim for damages, and that they were misdirected the location of the storm drain. Defendants contend her claim failed to accurately identify the location of the catch basin. 

II. REQUESTS FOR JUDICIAL NOTICE 

Defendants request the Court take judicial notice of (1) Plaintiff’s government tort claim to the City, (2) the photograph attached to Plaintiff’s tort claim, (3) Pat Ahumada’s declaration of non-ownership submitted as part of the City’s MSJ, (4) the City’s Notice of Rejection of Plaintiff’s claim, (5) excerpts of Plaintiff’s deposition transcript, and (6) Plaintiff’s government tort claim submitted to the County. 

Requests 1, 2, 4, and 6 are GRANTED. (Evid. Code §452(c); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376 [“If a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.”].) 

Request 3 is DENIED. (Big Valley Band of Pomo Indians v. Sup. Ct. (2005) 133 Cal. App. 4th 1185, 1192 [“The declaration of an adverse party is not a proper subject for judicial notice.”].) Judicial notice is improper to resolve the very dispute over the fact that occasioned the request for judicial notice. (Cruz v. County of Los Angeles (1985) 173 Cal. App. 3d 1131, 1134.) 

 Request 5 is DENIED. (See Cruz, supra.) A motion for judgment on the pleadings performs the same function as a general demurrer. “‘The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.’” (Johnson v. Honeywell Intern. Inc. (2009) 179 Cal.App.4th 549, 559-60.) 

Plaintiff requests the Court take judicial notice of (1) the City’s MSJ, (2) the City’s Separate Statement, and (3) the County’s opposition to the City’s MSJ.  

The requests are DENIED for the same reasons as above, in which the purpose of this request is not to take judicial notice of the existence of the documents, but for the purposes of the statements contained therein. 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.”].) 

III. PROCEDURAL REQUIREMENTS 

Defendants bring a statutory motion under CCP § 438. Unless the court orders otherwise, a statutory motion for judgment on the pleadings cannot be made after entry of pretrial conference order (CRC Rules 3.720-3.730) or 30 days before the initial trial date, whichever is later.  (Code Civ. Proc., § 438(e).) Here, the matter was initially set for trial for October 11, 2022, but the motion was filed on February 27, 2024. The motion is therefore untimely.  

Regardless of timeliness, “Granting leave to file an untimely motion for judgment on the pleadings is a matter in the trial court's discretion to control litigation before it.” (Sutherland v. City of Fort Bragg (2000) 86 Cal. App. 4th 13 fn. 4 [citing to Code of Civil Procedure section 438, subdivision (e)—authorizes the trial court to permit late filings of such motions and does not specify any grounds which might serve to limit its power to do so].) Further, Plaintiff contends the motion should be denied on the grounds of laches. Defendants do not address any timeliness argument on reply or provide any justification for the delay. 

Nonetheless, in the interest of disposing of this motion on the merits, the Court will exercise its discretion and directly address it.    

“Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (CCP § 439(a).) 

Defendants aver they met and conferred. However, Defendants sent only a meet and confer letter, and the email response had to do with mediation. It does not appear that the parties meaningfully discussed the contents of the motion. Nonetheless, an insufficient meet and confer process is not grounds to grant or deny a motion for judgment on the pleadings. (CCP § 439(a)(4).) 

IV. MOTION FOR JUDGMENT ON THE PLEADINGS 

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.”  (C.C.P. §438(b)(1) and (c)(1)(B)(ii).) 

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.”  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [Citations].)  The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).)   

The essence of Defendants’ contention is that there is a disparity between the government claims for damages submitted and Plaintiff’s complaint. A complaint is subject to dismissal if it alleges a factual basis for recovery which is not “fairly reflected” in the government claim. (Hernandez v. City of Stockton (2023) 90 Cal. App. 5th 1222, 1231.) The Court’s review on a motion for judgment on the pleadings is limited only to the complaint and matters judicially noticed, which the Court granted as to only Plaintiff’s government tort claims and the City’s rejection of the claim.  

Here, Plaintiff’s claim for damages to the City provides, in relevant part: “As Barbara Spatz was riding her bicycle in the marked bike lane on westbound Florence Avenue, approaching the intersection with Emil Avenue….the front tire of her bicycle got stuck in a 3’ wide x 6’ long, non-cross-hatched vertical grate located on the right side of the marked bike lane, thereby causing Claimant to fall from her bicycle.” (Defs. Jud. Notice, Exh. A.) Additionally, “the location of a large grate on a public roadway with one-directional non-cross-hatched metal grating, which runs westbound, the direction of bicycle traffic in the marked bicycle lane, constituted a dangerous condition….” (Ibid, emphasis original.) The photographs attached to the claim depict a grate facing the street sign for Emil Ave. Plaintiff’s claim to the County provides the same factual details and same photographs.  

By comparison, the complaint provides in relevant part: “On December 10, 2020…Plaintiff BARBARA SPATZ was riding her bicycle in the marked bike lane westbound on Florence Avenue approaching the intersection with Emil Avenue. (Compl. at ¶ 3.) Plaintiff alleges that “the bike lane on westbound Florence Avenue near its intersection with Emil Avenue was in a dangerous condition in that there is a 3' wide x 6' long, non-cross-hatched vertical grate located on the right side of the marked bike lane.” (Id. at ¶ 5.) 

The Court finds no contradiction between the complaint and Plaintiff’s claims for damages. Plaintiff’s claim provides she was approaching the intersection with Emil Avenue, and the complaint corresponds with the same language. The Court need not go into the semantics of language between Plaintiff’s deposition testimony of “crossed through” versus “approaching”, especially since Plaintiff’s transcript is not judicially noticeable and outside the scope of this motion. The cases cited by Defendants contemplate only the details between the government claim and the complaint, without consideration of any extrinsic evidence. Indeed, the complaint “may not completely “shift [the] allegations” and premise liability on facts that fundamentally differ from those specified in the government claim.” (Hernandez v. City of Stockton (2023) 90 Cal. App. 5th 1222, 1231.) “Only where there has been a “complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim,” have courts generally found the complaint barred.” (Stockett v. Ass'n of Cal. Water Agencies Joint Powers Ins. Auth. (2004) 34 Cal. 4th 441, 447.) Here, the complaint and the government claim are clearly aligned on the factual premise, the date of the incident, and the parties involved.  

V. CONCLUSION 

Accordingly, Defendants’ motion for judgment on the pleadings is DENIED.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: