Judge Nathan R. Scott, Case Aguirre v. Western Riverside Council of Governments 2022-08-12 Tentative Ruling

Judge: Nathan R. Scott, Case: Aguirre v. Western Riverside Council of Governments, Date: 2022-08-12 Tentative Ruling

Defendant Western Riverside Council of Governments’ demurrer is sustained. (Code Civ. Proc., § 430.10, subd. (e).)

Plaintiff Irma Lopez Aguirre shall have leave to file and serve a second amended complaint within 15 days.

Uncertainty. The FAC is not “so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) Any “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Claims presentation. As to all causes of action, the FAC fails to state facts showing plaintiff complied with – or is exempt from – the Government Claims Act. (See Gov. Code, §§ 905, 910, 911.2, and 945.4; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 [complaint failing to “allege “facts demonstrating or excusing compliance” fails to state cause of action]; Lozada v. City & Cty. of San Francisco (2006) 145 Cal.App.4th 1139, 1159 [even when non-monetary relief sought, claims presentation requirement applies when action “also seeks ‘money or damages’ as the primary relief”]; Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th 794, 798 [restitution claim is “subject to the claim requirements”].)

While the FAC asserts two exemptions, it fails to state facts showing either one applies. (See Gov. Code, § 905, subds. (a), (h); Hanson v. Garden Grove Unified School District (1982) 129 Cal.App.3d 942, 946 [statutory exemptions are “extremely limited” and narrowly construed]; Lopez v. Southern California Rapid Transit District (1985) 40 Cal.3d 780, 795 [specific pleading required against governmental entity]; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [statutory claims must be specifically pleaded]; see also FAC ¶ 57.)

As to subdivision (a), the FAC fails to state facts supporting the conclusion that the claim arises under the Revenue and Taxation Code. (See Aubry v. Tri–City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967 [demurrer does not admit truth of conclusions].) Nor does plaintiff assert this exemption in the opposition.

As to subdivision (h), the FAC fails to state facts supporting the conclusion that the claim is based on a special assessment. (See Aubry, supra at pp. 966-967 [conclusionary allegations insufficient]; see also Fin. Code, § 22015 [defining “PACE assessment” as “a voluntary contractual assessment, voluntary special tax, or special tax, as described in subdivisions (a), (b), and (c) of Section 26054 of the Public Resources Code”].)

1^stcause of action, rescission/restitution (fraud). Other than failing to satisfy the claims presentation requirement, the FAC states facts sufficient to constitute this cause of action. (See Civ. Code, § 1689, subd. (b)(1) [recission of fraudulently induced contract]; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [fraud elements; specificity]; see also FAC ¶¶ 14-26, 47 [alleging authority to speak as agent or joint venturer], 28-39 [misrepresentations], 41-44 [scienter], 51-54 [proximately caused damages].)

Government Code section 818.8 provides for immunity based on acts of an “employee”, not any agent. (FAC ¶¶ 14-26 [alleging agency].)

While defendant notes the “WRCOG HERO Program and California HERO Program Administration Agreement” provides that “[a]ny personnel performing Program Administration Services under the HERO Agreement on behalf of Renovate America shall not be employees of WRCOG and shall at all times be under Renovate America’s exclusive direction and control” (FAC Ex. A ¶ 4.2.1), the face of the FAC does not show the relevant personnel here were “performing Program Administration Services.” (Ibid; accord Ex. A ¶ 3 [a different document defines “Program Administration Services”].)

2^nd cause of action, rescission/restitution (Home Solicitation Act). The FAC fails to state facts sufficient to constitute this cause of action. It fails to allege a statutory basis for liability. (See Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802 [“government tort liability is dependent on the existence of an authorizing statute or ‘enactment’”]. The cited statutes do not authorize liability for government entities. (See FAC ¶¶ 83-84)

3^rd cause of action, Section 17200. The FAC fails to state facts sufficient to constitute this cause of action. It fails to allege a statutory basis for liability. (See Bus. & Prof. Code, § 17201 [defining “persons” subject to liability]; People for Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Bd. (2005) 125 Cal.App.4th 871, 878–879 [“governmental agencies or political entities” not subject to § 17200 liability].)

4^th cause of action, cancellation. This cause of action is duplicative of the 1^st cause of action for rescission based on fraud. (FAC ¶¶ 111-116 [alleging fraudulent inducement]; Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1504 [duplicative causes of action are subject to demurrer]; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [labels not determinative].)

Defendant’s request for judicial notice is granted. (Evid. Code, § 452, subd. (d).)

Defendant shall give notice.