Case Name: Rubino v. MAPFRE Insurance, et al.
Case No.: 17CV320053

I. Background

This action arises from damages that occurred to plaintiff Nick Rubino’s (“Plaintiff”) car while it was parked on a street in San Jose, CA. He seeks to recover damages from various insurance companies, namely, MAPFRE Insurance (“MAPFRE”), AAA Insurance (“AAA”), Safeco Insurance/Westwind Liberty Mutual (“Safeco”) (collectively “Insurance Companies”); the City of San Jose, sued erroneously as the San Jose Police Department (the “City”); and Green Team Waste.

As alleged in the Complaint, from September 19 to 22, 2017, Plaintiff’s car was parked in front of an apartment complex on South 11th Street while he was out of the area for work. (Complaint, p. 4.) When he returned, he noticed his car had been damaged and there were paint marks on it matching the color of the Green Team Waste trash bin in the driveway of the apartment complex. (Id. at p. 5.) Plaintiff called MAPFRE, his insurance company, and a claim was opened. (Ibid.) The adjuster also told him to directly call Green Team Waste. (Ibid.) Plaintiff did so and forwarded pictures of the damage to the regional manager but was later orally informed that the company was denying his claim. (Ibid.) When Plaintiff contacted his insurance adjuster to apprise her of this development, she informed him no more could be done as there were no witnesses to the accident. (Ibid.)

From around November 7 to 13, 2017, Plaintiff parked his car again on South 11th Street while he went out of town for a few days. (Id. at p. 6.) When he returned, he noticed his car had been pushed an entire car length forward and there was significant damage to the rear of the vehicle. (Ibid.) There was also a note left on his windshield by the landlord of a house by which he parked, stating she had insurance information for the two cars that hit Plaintiff’s car. (Ibid.)

Plaintiff got in touch with the landlord and obtained pictures of the accident scene along with copies of the driver’s licenses and insurance information of the individuals involved in the accident. (Id. at p. 6.) When asked, she advised Plaintiff that no police report was made since the accident did not result in any injuries. (Ibid.) Plaintiff also was not contacted by the police. (Ibid.)

Plaintiff then called AAA and Safeco, the insurance companies for the drivers involved in the accident, and was advised that neither of those individuals had reported hitting his car. (Id. at p. 7.) He was also informed AAA and Safeco would be denying his claim, despite the fact he sent photos to AAA clearly showing both vehicles hit his car. (Id. at p. 8.)

Plaintiff alleges the failure of these drivers to report the damage to his vehicle constituted fraud. (Ibid.) He also avers the City was negligent in its failure to make a written police report regarding the accident. (Ibid.) He further alleges the Insurance Companies acted in bad faith by denying his claims, failing to provide a reasonable explanation for their decision and inadequately informing him about his coverage benefits. (Ibid.)

The caption of Plaintiff’s Complaint lists four causes of action for: (1) breach of contract; (2) fraud; (3) bad faith; and (4) negligence. However, the body of the Complaint does not include labeled causes of action.

Currently before the Court is the City’s demurrer to the Complaint which Plaintiff opposes.

II. Demurrer

The City demurs to the Complaint in its entirety and to each individual cause of action on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) It advances arguments in support of its demurrer to the entire Complaint that are common to its demurrer to each cause of action, as well as arguments specific to Plaintiff’s claims for breach of contract and bad faith.

While the caption of the Complaint lists four causes of action, the pleading is not organized with reference to those claims. Rather, Plaintiff merely recites allegations forming the basis of his dispute with Defendants without separating his averments relative to any purported claim. Accordingly, because the pleading does not actually contain any individual causes of action, the City’s demurrer will be treated as a demurrer to the Complaint as a whole. Consequently, the demurrer to the individual causes of action will be disregarded. Furthermore, because Plaintiff explicitly acknowledges no contract-based claims are directed against the City, the Complaint will be construed as a tort action for purposes of this demurrer.

The City argues the Complaint does not state facts sufficient to constitute a cause of action because Plaintiff does not allege compliance with the Government Claims Act. It also contends Plaintiff fails to allege statutory bases for liability against it.

A. Government Claims Act

The Government Claims Act (the “Act”) is found at Government Code section 810 et seq. The Act “establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. (§ 911.2.) The failure to do so bars the plaintiff from bringing suit against that entity. (§ 945.4.) [Citation.].” (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1219, internal quotation marks and citations omitted.) A claim related to a cause of action for injury to personal property must be filed within six months of the accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).) After a written notice of rejection of the claim is personally delivered or deposited in the mail, the claimant has six months to file a lawsuit against the public entity. (Gov. Code, § 945.6, subd. (a)(1).) The complaint in such lawsuit must affirmatively “allege facts demonstrating or excusing compliance with the claim presentation requirement.” (State v. Superior Court (Bodde) (2004) 32 Cal. 4th 1234, 1243 (“Bodde”).) Failure to do so subjects the complaint to a general demurrer for failure to state facts sufficient to constitute a cause of action. (Ibid.)

The City argues Plaintiff failed to allege compliance with the claims presentation requirement of the Act. In opposition, Plaintiff concedes he failed to file a claim with the City before initiating this lawsuit. It appears he was unaware of this requirement until he met and conferred with the City’s counsel prior to the filing of the demurrer. He also does not suggest any excuse for non-compliance. As such, the City is correct that the Complaint as it stands is insufficiently pled. Thus, the issue the Court must decide is whether leave to amend should be granted. The Court determines that leave to amend is appropriate.

Plaintiff represents in his opposition that he has since complied with the claims presentation requirement by filing a claim with the City and receiving a rejection of that claim. It appears his claim was timely as the accident occurred around November 7, 2017 and Plaintiff states he filed his claim on January 3, 2018 – well within the six month deadline under Government Code section 911.2, subdivision (a). The time for Plaintiff to file a complaint following rejection of his claim also has not expired. He represents he received the rejection of his claim from the City on February 8, 2018. Under Government Code section 945.6, subdivision (a)(1), Plaintiff has six months from that date to file a lawsuit. Thus, at this time, there are no issues with this statute of limitations.

Where a plaintiff has submitted a timely claim but prematurely filed a complaint, courts have refused to dismiss the action because the plaintiff substantially complied with the claim presentation requirement. (Bodde, supra, 32 Cal.4th 1234, 1244, citing Radar v. Rogers (1957) 49 Cal.2d 243, 246 (“Radar”); Cory v. City of Huntington Beach (1974) 43 Cal.App.3d 131, 133; Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 768 (“Peterson”); Taylor v. City of Los Angeles (1960) 180 Cal.App.2d 255, 258.) The purpose behind the requirement is to give an entity enough time investigate and settle the claim, thereby preventing the costs and expenses of a useless suit. (Peterson, supra, 259 Cal.App.2d at 770; Radar, supra, 49 Cal.2d at 248.) Where an entity is deprived of sufficient time to investigate and settle the claim, the remedy is a motion to abate and not a dismissal of the action. (See Ibid.) Moreover, if an entity has an opportunity to approve or reject a claim before the filing of an amended complaint, its rights are not substantially prejudiced. (Peterson, supra, 259 Cal.App.2d at 770, citing Radar, supra, 49 Cal.2d at 249.)

Applying these principles here, it does not appear the City will be substantially prejudiced by a grant of leave for Plaintiff to amend his Complaint to allege compliance with the claims presentation requirement. Plaintiff contends he has now substantially complied with the requirement by presenting his claim to the City. Moreover, it appears the City had sufficient time to investigate as Plaintiff states it rejected his claim on February 8, 2018. Accordingly, Plaintiff’s representation of substantial compliance with the Act is sufficient to warrant granting him leave to amend his Complaint.

B. Statutory Bases for Liability

The City also argues the Complaint fails because Plaintiff does not allege a statutory basis for liability by it. This argument is well-taken.

Under Government Code section 815, subdivision (a), a public entity is not liable for an injury “[e]xcept as otherwise provided by statute.” (See also Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [stating that the purpose of this section is to abolish all common law or judicially declared forms of liability for public entities].) In other words, a plaintiff cannot allege a common law tort against a public entity. (Ibid.) Because all government tort liability is dependent on the existence of an authorizing statute, the plaintiff must specifically allege the statutory basis for liability to plead a cause of action against a public entity. (See Ramsey v. City of Lake Elsinore (1990) 220 Cal. App. 3d 1530, 1541; Susman v. City of Los Angeles (1969) 269 Cal. App. 2d 803, 809.)

Here, the Complaint does not allege a statutory basis for liability against the City. Plaintiff references in his opposition a “public Duty doctrine” purportedly requiring police officers to submit written reports for any accidents resulting in damages of over $1,000. It is entirely unclear what doctrine he is referring to and whether such doctrine is actually codified in a statute. In any event, the Complaint is entirely devoid of any reference to a statutory basis for liability.

As such, the City’s demurrer is also sustainable on the basis Plaintiff does not allege a statutory basis for liability of the City.

C. Conclusion

For the reasons stated, the demurrer to the Complaint in its entirety is SUSTAINED with 10 days’ leave to amend.