34-2018-00245689

Jesse Bryant, Jr. vs. Ca. High Speed Rail Authority (CHSRA)

Nature of Proceeding: Hearing on Demurrer

Filed By: Killeen, John W.

Defendant California High-Speed Rail Authority’s (“Defendant”) demurrer to plaintiff in pro per Jesse Bryant Jr.’s (“Plaintiff”) complaint is ruled upon as follows.

Defendant’s request for judicial notice of requests for proposals and related documents prepared by Defendant is denied. None of the documents for which Defendant seeks judicial notice of are specified in Evidence Code § 452. The fact that these documents may be publicly available does not make them subject to judicial notice. As noted in Jolley v. Chase Home Finance, LLC (2013) 2013 Cal.App.4th 772, “we know of no ‘official Web site’ provision for judicial notice in California.” (See L.B. Research & Education Foundation v. UCLA Foundation (2005) 130 Cal.App.4th 171, 180, fn. 2.) “Simply because information is on the Internet does not mean that it is not reasonably subject to dispute.” (Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1605, fn. 10.)

On December 20, 2017, Plaintiff filed his complaint in Riverside County Superior Court. On August 30, 2018, the Riverside County Superior Court ordered the case be transferred to this Court.

This case appears to involve three requests for proposals (RFPs) for financial advisor services that Defendant put out for bid in 2014 and 2016. Plaintiff allegedly submitted bids on behalf of his financial services firm, Financial Management Consulting (“FMC”), in response to at least two of Defendant’s RFPs. FMC did not get selected.

Plaintiff’s form complaint alleges causes of action for general negligence, intentional tort (IIED), and “other” – Disparate Impact Liability.

Defendant demurs to the complaint on the grounds it is uncertain and fails to state a cause of action.

Legal Standard

The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.)

The pleading rules applicable to demurrers are now familiar and well established. Pleadings are to be liberally construed. (Code Civ. Proc. § 452) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. ( Serrano v. Priest (1971) 5 Cal. 3d 584, 591.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . , we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal. App. 3d

690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal. App. 4th 726.)

Discussion

Defendant contends the complaint is uncertain. The Court agrees.

“A demurrer for uncertainty is strictly construed, even where a [pleading] 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.) Such special demurrers are only granted where the complaint is so muddled that the defendant cannot reasonably respond.

In Plaintiff’s first cause of action for general negligence, he alleges he suffered injury from the “CHSRA Solicitation Process.” (Compl. Cause of Action – General Negligence.) He alleges Defendant owed a legal duty to FMC (Plaintiff’s financial services firm), that Defendant “fail[ed] to act and follow the RFP as required” and that Plaintiff suffered harm “to FMC’s Proposal Scoring, and Competitive Ranking to be awarded the RFP HRS-14-01, RFP-HRS 15-91, and RFP-HRS 15-92

Contracts.” (Compl. Cause of Action – General Negligence.) Plaintiff also alleges a “negligence per se” cause of action, but simply alleges legal conclusions that “CHSRA violated the statute or regulation” and “caused “FMC’s injury.”

The factual bases for these claims are unclear. Plaintiff does not allege what the duty was that Defendant owed to FMC or him and how Defendant breached the RFP or violated any statute or regulation.

In Plaintiff’s second cause of action for intentional tort, Plaintiff alleges:

“CHSRA knowingly, did not apply or follow its RFP- HSR-14-01, RFP- HRS#15-91, & RFP- HRS15-92 Evaluation Criteria, outrageruosly [sic] and extremely overlooked FMC Technical and Oral Proposals, with supporting letter correspondence, and intentionally voliated [sic] the California Public Contract Codes 10344 and 10345. Furthermore, CHSRA Intentionally did not comply with its RFP, which required the selected vendor to comply with the PUC Section 185033; and/or Senate Bill 1029, which its purpose and overview states “Contractors to provide financial analysis of the Authority’s existing funding plans and prospective funding sources, business planning and analysis of delivery models, and procurement options and potential financing sources, among other tasks appropriate for the System”. This was NOT the Contractual Results.” (Compl. Cause of Action – Intentional Tort.)

Plaintiff also alleges “CHSRA intentionally created unreasonable discriminatory requirements for the RFP-HRS 15-92 Solicitation process that further damaged FMC’s Proposal scores and did so intending to harm FMC.” (Compl. Cause of Action – Intentional Tort.)

Further, in an undated Government Claim Form attached to the complaint, Plaintiff alleges:

“During 2014, the CHSRA wasted FMC’s management resources to fairly compete in its RFP solicitation Process, where a re-solicitation of the RFP would have followed the intent or compliance of the California Public Contract Code 10344 and 10345. Moreover during 2016, a responsible and compliant CHSRA’s RFP Solicitation and Oral Interview process would not have damaged, destroyed and disadvantaged FMC’s operating resources or capacity to successfully compete as the selected vendor. In both 2014 and 2016, the CHSRA violated the California Public Contract Code 10344 and 10345.

…

During 2014, CHSRA did not timely include the States Executive Order D-43-01 -3% Statutory Requirements for DVBE in a RFP solicitation, which gave an advantage to the existing Consulting Firm, and underhandedly violated California Public Contract Code 10344 and 10345, while unfairly disadvantaging FMC rigths and ability to compete for a highly important government contract. During 2016, CHSRA violated the California Public Contract Code 10344 and 10345 in its RFP guidelines, by intentionally not following CHSRA’s RFP to eliminate FMC in its ERRED RFP Solicitation process.

…

During 2014, the CHSRA knew the State’s 3% Statutory Requirements for DVBE in a RFP solicitation, but negligently, intentionally, or willfully created a “disparate impact” of institutional racism, so FMC could not compete during the RFP solicitation Process. During 2016, again the CHSRA negligently, intentionally, or willfullv created the “disparate impact” of institutional racism, so FMC could not compete.”

Plaintiff’s complaint is vague, ambiguous, and does not sufficiently allege how Defendant purportedly violated its RFPs or any other law or how its RFPs were “discriminatory.” Plaintiff’s opposition to this motion is also so muddled that the Court cannot decipher any purported argument being made by Plaintiff. Based on the lack of clarity in Plaintiff’s opposition, the demurrer is essentially unopposed for all intents and purposes.

A demurrer is properly sustained where the pleading is uncertain, ambiguous, or unintelligible. (CCP § 430.10(f).) It bears repeating, that although a demurrer for uncertainty is disfavored, it will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. Normally, ambiguities can be clarified under modern discovery procedures. (1 Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2008) § 7:84, p. 7(l)-37; Khoury v. Maly’s of California, Inc. (1993)14 Cal.App.4th 612, 616.) Here, the pleading so vague and uncertain that the Court would be forced to speculate as to the meaning of the various causes of action in order to assess their potential viability. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 n. 2.) Accordingly, the demurrer on the grounds of uncertainty is SUSTAINED, but with leave to amend as this is the first challenge to the pleading.

Defendant also generally demurs on the grounds that Plaintiff has failed to state a cause of action. Defendant’s demurrer on this ground is premised upon the contents of documents for which the Court denied Defendant’s request for judicial notice. For example, Defendant contends Plaintiff failed to file a timely bid protest and, therefore, his claims are barred. This argument cannot be evaluated without looking beyond the four corners of the complaint. And, as noted above, Defendant’s request for judicial notice was denied. The Court will not make a factual determination as to meaning of the contracts by interpreting the documents dehors the complaint. Although the Court understands that the Court may take notice of exhibits attached to the complaint, and that if facts appearing in the exhibits contradict those alleged in the complaint, the facts in the exhibits take precedence, (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567-568) a hearing on a demurrer cannot be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (Unruh-Haxton v. Regents of Univ. of Cal. (2008) 162 Cal.App.4th 343, 365.) As the Court has denied the request for judicial notice, such a determination would be improper on demurrer. Not only are these documents not authenticated but they are extrinsic evidence which cannot be considered on a demurrer. A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; see, also Ion Equipment Corp. v. Nelson (1980) 110 Cal. App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.)

Further, Defendant argues it cancelled certain requests for proposal and reserved the right to do so and, therefore, Plaintiff’s claims fail. However, this argument also depends upon information contained outside the four corners of the pleading. Accordingly, the demurrer on this ground is OVERRULED.

Finally, Defendant contends Plaintiff failed to allege he timely filed a government claim. Pursuant to the Government Claims Act, a claimant must present a civil complaint for money damages to the Government Claims Board before filing a lawsuit against a public entity or public employee, including a judicial officer. (Gov’t Code §§ 810.2, 811.2, 811.4, 911.2, 945.4, and 950.2.) A claim relating to a cause of action for death or injury to a person or to personal property or growing crops must be presented to the public entity no later than six months after the accrual of the cause of action, and a claim relating to any other cause of action must be presented no later than one year after the accrual of the cause of action. (Govt. Code §911.2(a).) Failure to allege compliance with the presentation requirements of the Act and that the claim has been rejected is fatal to a cause of action. (State v. Superior Court (2004) 32 Cal.4th 1234, 1240-1241.)

A demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e); Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 42-43.) In reviewing a general demurrer, the facts pleaded are assumed to be true and the only issue is whether they are legally sufficient to state a cause of action. (Rope v. Auto-Chlor. System of Wash., Inc. (2013) 220 Cal.App.4th 635.)

In the Judicial Council form Complaint, however, Plaintiff has checked the boxes that he was required to comply with a claims statute and has complied with applicable claims statutes. (Complaint at p. 2.) To the extent Defendant is contending Plaintiff had to allege more specific facts about his compliance, the Court rejects this argument. The Court presumes that by reducing the claims-compliance component of the form to a “check-the-box” process, the Judicial Council was facilitating compliance with applicable pleading requirements. Furthermore, Defendant has not cited authority for the proposition that a plaintiff seeking damages against a public entity or public employee cannot comply with pleading requirements by filling out a Judicial Council form complaint. Absent such authority, the Court is not persuaded and rejects Defendant’s argument. To the extent the demurrer suggests the checked-box “compliance” is factually incorrect, this argument is beyond the scope of the demurrer. The demurrer on this ground is OVERRULED.

Plaintiff may file and served a First Amended Complaint no later than March 14, 2019. Although not required by Court rule or statute, Plaintiff is directed to present a copy of this order when the amended complaint is presented for filing.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.