Case Number: BC703009 Hearing Date: May 22, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS DEMURRER TO THE THIRD AMENDED COMPLAINT

I. INTRODUCTION

On April 17, 2018, Plaintiffs Eric Rocha De La O (“De La O”), Jeovanny Alexander Chanta Orellana (“Orellana”), and Jorge Vazquez Villafuerte (“Villafuente”) (collectively, “Plaintiffs”) filed this action against Defendants State of California, Department of Transportation (“State”) and Ronald Eric Williams (“Williams”) (collectively, “Defendants”) for injuries suffered when their vehicle was rear-ended by Defendants’ vehicle. On March 5, 2019, the demurrer to Plaintiffs’ second amended complaint was sustained with leave to amend. On March 26, 2019, Plaintiffs’ filed their Third Amended Complaint (TAC). State demurs to the TAC on grounds Plaintiffs failed to comply with the Government Code section 945.6.

II. LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) However, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Where the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

“A demurrer for uncertainty is strictly construed, even where a complaint 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.) Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

III. DISCUSSION

Plaintiffs allege that on or about June 30, 2017, Plaintiffs each served separate claims on State. Plaintiffs allege State never rejected in writing the claims of Orellana or Villafuerte. De La O alleges he never received any rejection notice. Therefore, Plaintiffs allege that having received no notice of rejection of their claims, this action was timely filed on April 17, 2018. (TAC, ¶ 3.)

Requests for Judicial Notice

State seeks judicial notice of: (1) the original summons and complaint filed on April 17, 2018 by Plaintiffs; (2) a Government Claim Form received by State on July 5, 2017 regarding claimant Eric Rocha, claim number 17006772; (3) a letter from Laurie Roth dated July 25, 2017 regarding claim number 1006772; (4) Plaintiffs’ First Amended Complaint (FAC) filed on January 25, 2019; (5) the Court’s March 5, 2019 Order on the State’s demurrer to Plaintiff’s FAC. Plaintiff did not oppose State’s request for judicial notice. The Court takes judicial notice of the original summons and complaint and the March 5, 2019 Order (Evid. Code, § 452, subd. (d)), and the July 25, 2017 letter (Evid. Code, § 452, subd. (c)).

Meet and Confer Requirement

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) The party filing the demurrer must include a supporting memorandum of points and authorities. (Cal. Rules of Court, rule 3.1113(a).) On April 16, 2019, defense counsel sent a letter to Plaintiffs’ counsel regarding the basis for this demurrer. (Declaration of Michelle L. Han, ¶ 6.) On April 22, 2019, defense counsel spoke with Plaintiffs’ counsel on the telephone, but did not reach an agreement. (Han Decl., ¶ 7.)

Tort Claims Act

Before filing a suit against a public entity, a plaintiff must comply with the Government Tort Claims Act, which states, in part: “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . .” (Gov. Code, § 945.4.) A claim for death or injury to person or personal property shall be presented not later than six months after the accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).) The “failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.” (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) “[S]ubmission of a claim to a public entity pursuant to section 900 et seq. ‘is a condition precedent to a tort action and the failure to present the claim bars the action’” (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 708), and “failure to allege compliance constituted a failure to state a cause of action and subjected a complaint to a demurrer” (State of California, supra, 32 Cal.4th at pp. 1242-1243).

A claim for death or injury to person or personal property shall be presented not later than six months after the accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).) The board shall grant or deny the application within 45 days after it is presented to the board unless the claimant and board have agreed, by written agreement, to extend the 45-day period. (Gov. Code, § 911.6.) If the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day, unless the period within which the board is required to act has been extended by written agreement. (Gov. Code, § 911.6, subd. (c).) If the claim is denied or deemed denied by operation of law, a suit against the public entity must be commenced: (1) within six months after the date of written notice of denial that was personally delivered or deposited in the mail, or (2) within two years from the accrual of the cause of action if written notice of denial is not given. (Gov. Code, § 945.6, subd. (a).)

State argues that although De La O alleges the rejection notice was not received, there is no requirement that the notice actually be received. (Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 445.) Rather, the statute of limitations begins “to run from the date the notice is deposited in the mail by the public entity, and not the date that it is received by the claimant or counsel.” (Edgington v. County of San Diego (1981) 118 Cal.App.3d 39, 47.) State contends that the proof of service of the notice of rejection of De La O’s claim was deposited with the United States Postal Service on July 25, 2017 and therefore, he was required to file this action within six months of that date.

However, the TAC, read as a whole and liberally construed, states facts sufficient to establish Plaintiffs complied with the Government Tort Claims Act. First, the TAC alleges State never rejected the claims by Orellana and Villafuente. State does not make any argument as to Orellana and Villafuente.

The issue of whether State deposited a rejection notice in the United States Postal Service is better decided on a motion for summary judgment or other motion where the Court may consider extrinsic evidence. State argues the Court may take judicial notice of the filing and contents of a government claim. However, the case on which State relies states: “The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368, fn. 1.) “ ‘ “[J]udicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” [Citation.]’” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.) As relevant here, State asks the Court to take judicial notice of the truth of the declaration of mailing that the rejection notice was deposited with the United States Postal Service on July 25, 2017. This is not a matter properly subject to judicial notice when the matter is disputed.

Here, the Court must accept the allegations of the TAC as true. The allegations are sufficient to allege compliance with the Government Tort Claims Act—namely, that each Plaintiff submitted a claim for damages, two of the claims were not rejected, and the rejection notice for Plaintiff De La O was not placed for mailing with the United States Postal Service. Therefore, the complaint sufficiently alleges Plaintiffs timely filed their action within two years of the accrual of the cause of action.

IV. CONCLUSION

State’s demurrer to the Third Amended Complaint is OVERRULED.

Moving party to give notice.