Rodrigo Isidro De jesus, et al. v. California Highway Patrol, et al.
Case No: 19CV00049
Hearing Date: Mon Apr 29, 2019 9:30

Nature of Proceedings: Demurrer

Rodrigo Isidro De Jesus, et al., v. California Highway Patrol, et al., #19CV00049, Judge Sterne

Hearing Date: April 29, 2019

Matter: Demurrer

Attorneys:

For Plaintiff: Garrett May (The May Firm – San Luis Obispo)

For Defendants: Paul F. Arentz, Deputy AG

Tentative Ruling: The court overrules defendant Felipe Amalio Hernandez’s demurrer to the complaint in this case.

Complaint: On January 4, 2019, plaintiffs Rodrigo Isidro De Jesus and Gregoria Julita Garcia-Osorio filed their complaint against defendants California Highway Patrol (CHP), State of California (State), and Felipe Amalio Hernandez. As relevant here, plaintiffs allege:

Defendant Hernandez operated a vehicle owned by CHP and State in the course and scope of his employment. [¶¶19, 20] On May 1, 2018, Hernandez operated the vehicle in a negligent manner, causing a series of collisions involving five vehicles, including plaintiffs’ vehicle. [¶27]

CHP’s Coastal Division Multidisciplinary Accident Investigation Team (“MAIT”) investigated the incident. MAIT concluded that “[Hernandez] caused this collision by driving at an unsafe speed. Although operating under the exemptions of [Veh. Code] §21055, he had the responsibility to drive with due regard for the safety of those around him. The fact the collision occurred as a result of traffic stopped from a freeway closure on the other side of a blind curve is not insignificant; however, [Veh. Code] § 21056 requires emergency vehicles to operate with due regard—certainly with the possibility of a traffic obstruction on the other side of a blind curve—which [Hernandez] failed to accomplish.” [¶28]

The causes of action are negligence and negligence per se. On March 27, State, by and through CHP, answered the complaint.

Demurrer: Defendant Hernandez demurs to the complaint on the ground that plaintiffs fail to state facts sufficient to constitute negligence because that action against him is barred by Veh. Code § 17004. Plaintiffs oppose the demurrer.

The court treats “the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law”; considers “matters which may be judicially noticed”; and gives “the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” Evans v. City of Berkeley, 38 Cal.4th 1, 6 (2006) [internal quotation marks and citations omitted]. The court also considers the reasonable inferences that may be drawn from the properly pleaded material facts. Reynolds v. Bement, 36 Cal.4th 1075, 1083 (2005).

“A demurrer tests only the sufficiency of the pleading and lies only where the defect appears on the face of the pleading or from matters judicially noticed by the court.” Fiorito v. Superior Court, 226 Cal.App.3d 433, 437 (1990). Questions of fact requiring the consideration and weighing of evidence are unsuitable for resolution on demurrer. M.F. v. Pacific Pearl Hotel Mgmt LLC, 16 Cal.App.5th 693, 703 (2017).

Veh. Code § 17004 provides: “A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm or other emergency call.”

MAIT stated that Hernandez caused the collision by driving at an unsafe speed and that he was operating under the exemptions of Veh. Code §21055. Veh. Code § 21055 provides that the driver of an authorized emergency vehicle is exempt from various Vehicle Code provisions “[i]f the vehicle is being driven in response to an emergency call or while engaged in rescue operations or is being used in the immediate pursuit of an actual or suspected violator of the law” and “[i]f the driver of the vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to other drivers and pedestrians.”

Plaintiffs do not allege that Hernandez was operating under the exemptions of Veh. Code § 21055. They allege that MAIT came to that conclusion. Plaintiffs have not alleged that fact as their own. The only fact in the allegation in ¶28 of the complaint is that MAIT stated that Veh. Code § 20155 exemptions applied, not that the exemptions did, in fact, apply. There is a qualitative difference between affirmatively alleging “X” and alleging that somebody else said “X.”

Both parties argue facts that are not in the complaint, such as whether Hernandez was actually in pursuit of a suspect or whether he had activated the vehicle’s lights and sirens. The court is not considering these extraneous facts.

The allegations of fact in the complaint do not establish that Veh. Code § 17004 applies. Therefore, the court overrules defendant Felipe Amalio Hernandez’s demurrer to the complaint in this case.