SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

Plaintiff Laura Chavez (“Plaintiff”) filed this action against Defendants Nelson Valentin Alvarado (“Alvarado”) and The People of the State of California, acting by and through the Department of Transportation (“State”) (collectively, “Defendants”) for damages arising from a motor vehicle accident.  The complaint alleges that Defendants caused her injury on September 15, 2021 on or about Bloomfield Ave. in Norwalk in a motor vehicle accident, and alleges causes of action for motor vehicle and general negligence.  

Defendants now demur to the complaint arguing that it fails to state sufficient facts to constitute a cause of action and is uncertain against the State. Furthermore, Defendants move to strike Plaintiff’s prayer for prejudgment interest.  Plaintiff opposes the demurrer. Plaintiff did not file an opposition to Defendants’ motion to strike. 

 

2. Demurrer 

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 Defendants have fulfilled this requirement prior to filing the demurrer.  (Demurrer Naylor Decl. ¶ 4.) 

 

b. Legal Standard  

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.) 

 

c. 1st Cause of Action against the State – Motor Vehicle Negligence 

Except as otherwise provided by statute, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”  (Gov. Code § 815(a).)  “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]”  (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457; accord, Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088.) 

Because all liability under the Government Claims Act is statutory, “the general rule that statutory causes of action must be pleaded with particularity is applicable.”¿ (Susman¿v. City of Los Angeles¿(1969) 269 Cal.App.2d 803, 809.)¿ Thus, “to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” ¿(Searcy v. Hemet Unified School District¿(1986) 177 Cal.App.3d 792, 802.)   

In this case, Defendants aver that the complaint fails to identify a statutory basis of liability as to the State, so the first cause of action for motor vehicle negligence fails to state a claim against the State.  Plaintiff, in opposition, argues that the complaint sufficiently sets forth the State’s liability under Government Code §§ 815.2 and 820 in attachment 10(b) the complaint. However, attachment 10(b) is in reference to the second cause of action for general negligence. There is no reference to Government Code §§ 815.2 and 820 in the first cause of action, and the complaint does not otherwise identify any statutory duty owed by the State to Plaintiff in the first cause of action.  (Compl. at p. 4.)  There is no common law tort liability for public entities in California, including negligence. (Becerra, 68 Cal.App.4th at 1457; McCarty, 164 Cal.App.4th at 975.) 

Accordingly, the demurrer is sustained as to first cause of action for motor vehicle negligence against the State.   

 

c. 2nd Cause of Action against the State – General Negligence 

As to governmental liability, facts showing the existence of the claimed duty and liability must be alleged, and “the statute or ‘enactment’ claimed to establish the duty must at the very least be identified." (Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802. See also Becerra v. County of Santa Cruz (1998) 68 Cal. App. 4th 1450, 1458; Shields v. County of San Diego (1984) 155 Cal. App. 3d 103, 113.) Complainants are not required to identify employees in order to specifically allege vicarious liability against a governmental entity. (Tom Jones Enterprises, Ltd. v. County of L.A. (2013) 212 Cal. App. 4th 1283, 1292-93.) 

Defendants contend that the complaint is uncertain because it fails to plead facts sufficient to establish a cause of action. "A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures."  (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  "A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond –i.e., he or she cannot reasonable determine what issues must be admitted or denied, or what counts or claims are directed against him or her."  (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) "The objection of uncertainty does not go to the failure to allege sufficient facts."  (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) Plaintiff’s second cause of action for negligence against Defendants provides in relevant part that Defendants were the owners, lessors, lessees and renters of the vehicle driven by Alvarado with the express and implied consent of each Defendant, that Defendants were employees of each other acting within the scope of their employment and agency, and that as a direct and proximate result of Defendants’ negligence, Plaintiff was injured when Defendants collided with Plaintiff’s vehicle. Furthermore, Plaintiff refers to Government Code §§ 815.2(a) and 820 (a). Plaintiff has sufficiently pled with particularity the essential facts to maintain her second cause of action for negligence against the State under the appropriate statutory authorities.  

Accordingly, the demurrer is overruled as to second cause of action for negligence against the State.   

 

d. Prejudgment Interest 

Defendants both demur and move to strike Plaintiff’s prayer for prejudgment interest. Plaintiff’s prayer for prejudgment interest is appropriate for a motion to strike, but not for a demurrer, which is intended to dispose of an entire cause of action. A demurrer does not lie to a portion of a cause of action."  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-83.)  "The appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike."  (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385.) Therefore, the Court will only consider Defendants arguments on their motion to strike. Plaintiff does not oppose Defendants’ motion to strike. 

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (CCP §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (CCP § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.)  California’s policy of liberal construction applies to motions to strike.  (CCP § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).)  The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (CCP § 436.) 

Plaintiff does not cite to any statutory authority to entitle her to prejudgment interest. Plaintiff merely states that she suffered other damage: “prejudgment interest.” (Compl. p. 3; 11(g).) Because Plaintiff does not adequately plead any basis to recover prejudgment interest, the motion to strike is granted.  

 

e. Leave to Amend 

The burden is on Plaintiff to show in what manner she 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.)   While Plaintiff requests leave to amend, Plaintiff confirms that Defendants’ statutory liability is premised on Government Code §§ 815.2 and 820.  This statutory theory of liability and the relevant allegations are already encompassed in Plaintiff’s second cause of action against Defendants.  Accordingly, allowing Plaintiff leave to amend to set forth the same theory of liability in the first cause of action would merely make this claim duplicative of the second cause of action and add nothing new to the complaint. Plaintiff raises public entity liability under Government Code § 815.6 , but fails to develop this point. As such, Plaintiff does not meet her burden to show in what manner she can amend the complaint, and how that amendment will change the legal effect of the pleading. The demurrer is sustained as to the first cause of action for motor vehicle negligence against the State without leave to amend.   

Plaintiff did not address Defendants’ prejudgment interest contentions in her opposition to the demurrer, and neither did Plaintiff oppose Defendants’ motion to strike. Therefore, Plaintiff failed to meet her burden to show what manner she can amend the complaint to provide a legal basis for prejudgment interest.  

 

3. Conclusion 

Defendants’ demurer is sustained as to the first cause of action for motor vehicle negligence against the State without leave to amend.  The demurrer is otherwise overruled as to the second cause of action against the State, and as to the first and second causes of action against Alvarado.  Plaintiff did not oppose Defendant’s motion to strike prejudgment interest, and therefore the motion to strike is granted without leave to amend.  

 

Defendants are ordered to file their answer within thirty (30) days.