I. BACKGROUND 

Plaintiff Martina Castrejon (“Plaintiff) filed her First Amended Complaint (“FAC”) against defendants City of Montebello (“the City”), Clara Gonzalez (“Gonzalez”), and Does 1 to 50 for damages arising from an automobile accident. Plaintiff alleges the incident arose from Gonzalez’s negligent driving, and the unsafe intersection of Via Paseo and Wilcox Avenue. (FAC ¶ 12.) The FAC sets forth two causes of action for (1) negligence (Gov. Code §§810 et seq.) against the City and Does 1 through 25, and (2) negligence against Gonzalez and Does 26 through 50. 

The City now demurs to Plaintiff’s FAC. Plaintiff opposes the motion, and the City filed a reply. 

II. 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.)  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.)   

“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.)  

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 Court finds the City has fulfilled this requirement prior to filing the demurrer. 

The Court’s review is limited to the fact of the pleading, and any matters judicially noticeable. No matters were judicially noticed, and thus the scope of the review is limited to the four corners of the FAC. 

Here, the general allegations of the FAC pleads in pertinent part: 

“10. Defendant MONTEBELLO is a public entity, upon which plaintiff has, pursuant to Government Code, Sections 905 and 910 et seq., timely served with a written government claim. Pursuant to Government Code, Section 945.4, defendant MONTEBELLO has rejected said claim(s) and/or the claim(s) have lapsed by operation of law. Accordingly, plaintiff has standing to bring suit for monetary damages against these public entities. 

11. Plaintiff has filed the instant action less than 6 months since defendant MONTEBELLO rejected plaintiff’s government claim(s). Accordingly, plaintiff has standing to bring suit for monetary damages against these public entities.  

(FAC ¶¶ 10-11.) 

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

Simply put, “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.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236-37.) Here, the FAC pleads that Plaintiff filed the action within six months of the City’s rejection of her claim. The Court’s review on a demurrer is limited, and it may not consider any extrinsic evidence that was not judicially noticed. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 [“The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”] Here, Plaintiff has properly pled compliance with the claims presentation requirement and pled that she filed the action within six months of the City’s rejection. In terms of the contention that “a minor time technicality” of Gov. Code § 912.4(a) did not give the City sufficient time to “possibly settle a dispute before resorting to the courts,” nothing prevents the City from settling this matter after the action here and now, nor does it bar Plaintiff’s action on its face. 

Therefore, the demurrer brought on this ground is overruled.  

The FAC pleads, in pertinent part: 

“16. This personal injury action arises from a collision between Vehicle No. 1 and Vehicle No. 2 that occurred on June 8, 2022, as Plaintiff nearly completed attempting to make a left turn at the INTERSECTION from eastbound Via Paseo onto northbound Wilcox Avenue, and while Defendant GONZALEZ was travelling at a high rate of speed going straight on southbound Wilcox Avenue. 

17. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, the INTERSECTION was unsafe, improperly designed, constructed, approved and maintained, and lacking in adequate traffic control devices (e.g. a traffic signal light or stop sign); and that Defendant MONTEBELLO, had actual and constructive notice of the unsafe condition at the INTERSECTION due to the high numbers of prior accidents prior to the INCIDENT at that location. 

… 

19. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, the INCIDENT was actually and proximately caused by the unsafe condition of the INTERSECTION, as described above.”  

(FAC ¶¶ 16-17, 19.) 

The first cause of action incorporates by reference all the general allegations set forth. (FAC ¶ 20.) Here, the Court finds that Plaintiff has sufficiently pled that the lack of traffic signal or stop sign, despite the knowledge of a high number of prior accidents, constitutes a dangerous condition of public property. The Court will not consider the City’s contentions regarding the merits of this allegation on a demurrer. Whether or not Plaintiff will ultimately be able to maintain or prevail on a cause of action for dangerous condition of public property under Government Code § 835 is entirely outside the scope of a demurrer.  

The Court agrees that Plaintiff has not sufficiently alleged enough facts to support the general allegation that the City’s agents, employees, or independent contractors caused the incident (FAC ¶¶ 23, 24), and the recitations to Government Code §§ 815.2, 815.4, 815.6 and 820, et seq. (Id. at ¶ 26). The body of the complaint makes it clear that the City’s liability is premised on Government Code § 835, which governs claims for dangerous condition of public property. (MKB Management, Inc. v. Melikian (2010) 184 Cal.App.4th 796, 802 [When considering demurrers, courts read the allegations liberally, reasonably and in context.]; Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1463 [“[T]he labeling of a pleading is not determinative, but rather the subject matter of the action is to be determined from its allegations, regardless of what they may be called.”].)  

California is a fact pleading jurisdiction, not a notice pleading jurisdiction like the federal courts, such that merely putting an opposing party on notice is not sufficient. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.) Further, 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.) Here, there are no specific allegations to support any other code section except for Government Code §§ 835 and 835.2. The Government Code sections are distinct from one another, and do not all generally fall under Government Code § 835 as argued by Plaintiff. (See Mittenhuber v. City of Redondo Beach (1983) 142 Cal. App. 3d 1 ["Because recovery is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate."].)  

However, the City brought a demurrer as opposed to a motion to strike. 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.) A demurrer does not lie to a portion of a cause of action. (PH II, Inc. v. Superior Ct. (1995) 33 Cal. App. 4th 1680, 1682.) The first cause of action pleads a cognizable claim under Government Code § 835, even if the remaining portions are at issue.  

Accordingly, the demurrer to the first cause of action is OVERRULED on the grounds that a demurrer cannot dispose of a cause of action in part. As an additional note, the Court will not consider the City’s new argument inappropriately raised in the reply regarding a failure to prosecute. (Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477 [“Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief[.]”].) 

III. CONCLUSION 

Accordingly, the City’s demurrer to Plaintiff’s FAC is OVERRULED.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 5th day of June 2024