Case Name: Cecilia Oliver v. California Department of Motor Vehicles

Case No.: 1-13-CV-252378

Demurrer to the first amended complaint by defendant State of California, acting by and through, the California Department of Motor Vehicles

After the Court’s March 12, 2014 Order sustaining the demurrer, plaintiff Cecilia Oliver (“Oliver”) filed an amended form complaint alleging two causes of action against the California Department of Motor Vehicles (“DMV”): one cause of action for general negligence, and one cause of action for premises liability, which contains one count of negligence, and one count for a dangerous condition of public property.

Defendant’s demurrer to the first cause of action for general negligence is OVERRULED. A demurrer will not lie to part of a cause of action. (PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682.) With this claim, Oliver now is alleging negligence based on two separate acts: one being that a DMV employee saw a stroller positioned behind Oliver and did not warn her, and the other being that a DMV employee attempted to help Oliver stand up after the fall, which exacerbated her injuries. Defendant does not address the latter act of negligence as to the DMV employee who exacerbated Oliver’s injuries by helping her stand instead of calling for medical assistance.

Defendant’s demurrer to count one (negligence) of the second cause of action for premises liability is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. In its March 12, 2014 Order, the Court sustained this cause of action because: (1) Oliver had not alleged the facts necessary to state a cause of action against any DMV employee; and (2) Oliver had not alleged facts to show that a legal duty of care was owed. Unlike the additional allegations added to the first cause of action for general negligence, this claim appears exactly the same as it did in the original complaint. Oliver’s opposition borrows allegations from the first cause of action that are not alleged with this claim. As a result, Oliver has failed to remedy the deficiencies detailed in the Court’s prior order. (See Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 790 [statutory causes of action must be pleaded with particularity]; John B. v. Super. Ct. (2006) 38 Cal.4th 1177, 1188; Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103, 1111 [“A complaint which lacks allegations of fact to show that a legal duty of care was owed is fatally defective.”].) Oliver is given leave to amend as she still may be able to remedy the defects based on the arguments in her opposition.

Defendant’s demurrer to count three (dangerous condition of public property) of the second cause of action for premises liability is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. In its previous order, the Court sustained this cause of action because: (1) Oliver did not allege with specificity that a dangerous condition existed on the property; and (2) Oliver did not allege a causal connection between the condition and the injury. Other than checking the box that the public entity had actual knowledge instead of constructive knowledge of the existence of the dangerous condition, Oliver’s allegations in the amended complaint are exactly the same as those contained in the original complaint. Oliver maintains in her opposition that a DMV employee saw a customer place the baby-stroller directly behind Oliver, it can be inferred that standing at a counter and turning around to leave is a dangerous condition, and the DMV employee aggravated the injury by forcing Oliver to walk on a broken hip. (See Opp. at p. 8:1-7.) But these facts are not alleged with this cause of action. By failing to allege additional facts with this claim, Oliver has failed to remedy the deficiencies detailed in the Court’s prior order. (See People ex rel. Dept. of Transp. v. Super. Ct. (1992) 5 Cal.App.4th 1480, 1484-85; see Gov. Code, § 835; Dominguez v. Solano Irrigation Dist. (1991) 228 Cal.App.3d 1098, 1102.) Oliver is given leave to amend as she still may be able to remedy the defects based on the contentions in her opposition.