SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Sharita Randleston (“Plaintiff”) filed this action against Defendant State of California and Does 1 through 50 for the death of Asherey Shatonia Ryan (“Decedent”) in an automobile collision. The First Amended Complaint (“FAC”) asserts a single cause of action for negligence. The FAC provides that Plaintiff is the successor-in-interest to Decedent, who was killed in a traffic collision caused by Nicole Lorraine Linton. (“Linton”).  

Defendant State of California (“Defendant”) now demurs to the FAC, arguing it fails to state sufficient facts to constitute a cause of action for negligence against it, because it does not allege any statutory basis of liability nor do the facts establish that it breached any duty of care to either Plaintiff or Decedent. Further, Defendant argues the cause of action is barred by the immunities of Government Code sections 818.4.  Plaintiff opposes the demurrer, and Defendant 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.)  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.) 

 

The FAC alleges in relevant part: 

 

2. NICOLE LORRAINE LINTON was unfit to be licensed as a nurse in Los Angeles. Defendant should have known that NICOLE LORRAINE LINTON was unfit and dangerous due to her numerous prior motor vehicle accidents, prior acts of self-harm, multiple arrests for violent 

behavior, and multiple involuntary commitments to psychiatric hospitals. 

 

3. Plaintiff is informed and believes and therefore alleges that despite NICOLE LORRAINE LINTON’s shocking background, Defendant failed to be aware of the risks of licensing her so that they could alleviate extreme staffing shortages in the wake of the Covid-19 pandemic regardless of the fitness of the individual for the license. 

 

… 

 

17. Plaintiff is informed and believes, and based upon such information and belief alleges that NICOLE LORRAINE LINTON was a travel nurse by trade and would be expected to need the use of her vehicle for employment purposes 

 

… 

 

19. Plaintiff is informed and believes, and based upon such information and belief alleges that in the months and weeks before the subject collision NICOLE LORRAINE LINTON was displaying behavior, prior to and after receiving her license, that would disqualify her from working as a nurse pursuant to the California Board of Registered Nursing guidelines and the California Business and Professions Code, including but not limited to §820, §2761 and §2708.1. 

20. Pursuant to Government Code §815.6, a public entity is liable for an injury caused by the entity’s failure to discharge a mandatory duty imposed by an enactment designed to protect against the risk of a particular kind of injury. Under Business & Professions Code §2708.1, the Board of Registered Nursing has a mandatory duty to deny a license when issuing one would be inconsistent with protecting the public. Issuing a license to Nicole Linton was inconsistent with protecting the public because the stress and rigors unique to a travel nurse caused her obvious and unstable mental state to crumble, all of which the Board would have known had they kept a file as required under Business & Professions Code §800. Therefore, Defendant STATE OF CALIFORNIA is liable because the Board failed to discharge its mandatory duty of protecting the public by denying a license to Nicole Linton, and the Board’s failure to discharge its mandatory duty harmed the public, which is the type of injury Business & Professions Code §2708.1 was enacted to prevent. 

 

… 

 

23. Plaintiff is informed and believes, and based upon such information and belief, alleges that had the California Board of Registered Nursing kept such a file, they would have known of NICOLE LORRAINE LINTON’s unsuitability for licensure, and having failed to comply with Business and Professions Code §800 breached their duty of care. 

 

(FAC ¶¶ 2-3, 17, 19—20, 23.)  

Pertinent to Defendant, the FAC alleges that Defendant should not have issued a nursing license to Linton, who was a travelling nurse, and that because of Linton’s “failing mental condition which was brought by her grueling work as nurse (Id. at ¶ 27), Linton failed to operate her vehicle in a safe manner and caused the subject collision. In essence, the sole basis of liability against Defendant is that she was unfit to be a nurse, that her nursing license should have been revoked prior to the incident, and the failure to revoke the nursing license is related to Linton’s collision with Decedent’s vehicle. Plaintiff cites to California Business and Professions Code §800, §820, §2761 and §2708.1, Government Code §815.6, and alleges §815.6 and §2708.1 are designed to protect against the risk of the particular kind of harm created in this case.  

The Court agrees that the negligence claim against Defendant premised upon Linton’s nursing license fails to constitute a cause of action against Defendant for the automobile collision, because the issuance of a nursing license and protection policy in relation thereto is specific to acts or omissions in the rendering of nursing services. Government Code §815.6 provides, “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” Business and Professions Code §2708.1 states, “Protection of the public shall be the highest priority for the Board of Registered Nursing in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.” This Code section does not impose any mandatory duty, and Plaintiff does not address or counter any of the authorities cited by the moving party. The purpose of a nursing license is the exercise of care which ordinarily would have been exercised by a competent registered nurse, and disciplinary actions under this code section involves falling below the standard of care in the performance of nursing functions. (Clawson v. Bd. of Registered Nursing (2021) 72 Cal. App. 5th 996.) Linton’s act of driving a vehicle and allegedly causing the automobile accident is outside the scope of nursing services to a patient or client. (Cal. Code Regs., tit. 16, § 1442.) The code sections further cited by Plaintiff in the FAC supports that the type of harm contemplated by the Business and Professions Code is related to professional negligence arising from nursing services and within the function of a nursing practitioner. Nothing in the Business & Professions Code related to the regulation of licensed nurses provides a nexus between the nurse practitioner and protecting the public from the dangers of automobile accidents. 

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.) Plaintiff does not articulate how the complaint can be amended to overcome the identified defects. Based on the foregoing, Defendant State of California’s demurer is SUSTAINED without leave to amend.