Case Number: BC714061 Hearing Date: November 27, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEMURRER TO COMPLAINT AND MOTION TO STRIKE; DEMURRER OVERRULED, MOTION TO STRIKE DENIED

I. BACKGROUND

On July 18, 2018, Plaintiff Andrew Burkot (“Burkot” or “Plaintiff”) filed a complaint against defendants County of Los Angeles (the “County” or “Defendant”); City of Los Angeles (the “City”); State of California (the “State”); and Does 1 to 50 alleging a cause of action for Dangerous Condition of Public Property (Government Code Section 835).

The Complaint alleges that on November 1, 2017, Burkot was crossing Montrose Avenue at the intersection with Mar Vista Avenue/Rincon Avenue, in the County of Los Angeles when he was struck by a motor vehicle. Compl. ¶ 10. The Complaint states that the intersection where the collision occurred is dangerous due to: 1) site restrictions, 2) defective design, 3) change of conditions from the time of design, and 4) improper maintenance of the roadway. Compl. ¶ 12. The Complaint further alleges that the crosswalk where the incident occurred is dangerous to pedestrians because of: 1) restricted sight lines for cars traveling on Montrose Ave, 2) increased vehicle speeds due to a downhill approach for vehicles, 3) lack of a traffic signal for the safety of pedestrians, 4) lack of proper signs for the safety of pedestrians, 5) roadway curvature, and 6) changed conditions from the original design. Id.

On October 15, 2018, County filed a demurrer to the Complaint. On November 9, 2018, Plaintiff filed their opposition to the demurrer. Plaintiff dismissed the City and the State on October 9, 2018 and October 18, 2018, respectively.

On October 15, 2018, the County also filed a motion to strike the following portions of the Complaint: Paragraph 12, lines 13-21; Paragraph 17, lines 19-24; and Paragraph 22, lines 19-28 on the basis that the allegations exceed the scope of the Government Claim. On November 9, 2018, Plaintiff filed their opposition to the motion to strike.

II. LEGAL STANDARD

a. Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn, 147 Cal. App. 4th at 747.

//

//

b. Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b). The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 (“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded.”)

III. DISCUSSION

a. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. CCP §§ 430.41, 435.5. Counsel’s declaration fulfills the meet and confer requirements. See Nagy Decl. ¶ 2, Ex. A.

b. Demurrer Analysis

Defendant contends that the allegations made in Paragraphs 12, 17, and 22 of the Complaint do not fairly reflect the claim for damages that Plaintiff submitted to the County. Specifically, Defendant argues that while the Government Claim alleges liability against the County due to lack of proper signage and traffic signal failure, the Complaint alleges additional liability due to restricted sight lines for traveling cars, increased vehicle speed for cars in a downhill approach, roadway curvature, and conditions not consistent with the original design.

Government Code section 945.41 provides that 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 in accordance with Section 910 until a written claim therefore 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. Stockett v. Ass’n of California Water Agencies Joint Powers Ins. Auth. (2004) 34 Cal.4th 441, 445; Gov. Code § 945.41.

Section 910, in turn, requires that the claim state the date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted and provide a general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. Stockett, supra 34 Cal. 4th at 445; Gov. Code § 910. The purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. Stockett, supra 34 Cal.4th at 446. Consequently, a claim need not contain the detail and specificity required of a pleading, but need only fairly describe what the entity is alleged to have done. Id. As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions, the claims statute should not be applied to snare the unwary where its purpose has been satisfied. Id. A complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim. Id. at 447.

The County is a public entity and therefore a presentation of a written claim for damages is required. See Gov’t Code § 811.2; Compl. ¶ 2. Defendant contends there is significant variance between the Complaint and Plaintiff’s Government Claim, which states that the County caused his injuries due to “lack of proper signs for the safety of pedestrians” and “traffic signal failure.” Dem. 3:6-7. However, Defendant has not requested judicial notice of the Government Claim, nor supplied any documents for the Court to consider. Donabedian, supra 116 Cal. App. 4th at 994; see Ion Equip. Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881 (no other extrinsic evidence can be considered). Plaintiff has also not attached the Government Claim to his Complaint. On this basis alone, this Court cannot sustain the demurrer because Plaintiff’s Complaint, as it stands, states sufficient facts for a cause of action. Hahn, supra 147 Cal. App. 4th at 747.

Even if the Government Claim document is acknowledged, Plaintiff’s complaint is sufficient because it is predicated on the same set of facts as the claim for damages and adds no further causes of action.

The purpose of the claim for damages (or Government Claim) is “to provide the public entity sufficient information to enable it to adequately investigate claims and settle them, if appropriate, without the expense of litigation.” Stockett, supra 34 Cal.4th at 446. The Government Claim need only provide a general description of the “injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.” Id. at 445. As long as the complaint is not based on an entirely different set of facts from the claim for damages, the claim fairly reflects the facts pled in the complaint. See Stevenson v. San Francisco Hous. Auth. (1994) 24 Cal. App. 4th 269, 278; see also Stockett, 34 Cal. 4th at 447.

The Complaint alleges in relevant part the following:

The intersection is dangerous due to site restrictions, defective design, change of conditions from the time of design, and improper maintenance of the roadway. Pedestrians were exposed to a dangerous condition while crossing in the crosswalk due to numerous factors including but not limited to restricted sight lines for the cars traveling uphill or downhill on Montrose Avenue, downhill approach on Montrose Avenue at Mar Vista Avenue/Rincon Avenue causing vehicles to increase speed, lack of traffic signal for the safety of the pedestrians, lack of proper signs for the safety of pedestrians, roadway curvature and changed conditions from the original design.

Compl. ¶ 12.

The Court notes that both Plaintiff and Defendant cite to Stockett in their arguments. In Stockett, a dismissed government employee brought a wrongful termination action against his former employer. Stockett, supra 34 Cal. 4th at 444. Defendant employer raised the issue of variance between Stockett’s claim and his theories of liability in his complaint. Id. at 445. The Court ultimately held that Stockett’s claim was sufficient to give the government agency notice of all theories of wrongful termination. Id. at 450.

Here, the basis of liability in Plaintiff’s claim for damages is that the County did not provide adequate safety for pedestrians at the roadway intersection where the incident occurred. Like in Stockett, Plaintiff relies on this same theory of liability for his injuries in his Complaint as he does in the Government Claim. The Court finds that the allegations made in the Complaint in Paragraphs 12, 17, and 22 are not based on an entirely different set of facts from the claims made in the Government Claim. Notably, the allegations relate to the signage, traffic signal, and safety of pedestrians, which were properly noticed bases of liability.

Therefore, the demurrer as to Plaintiff is OVERRULED.

c. Motion to Strike Analysis

Defendant County moves to strike the following from the Complaint:

Complaint, ¶12, lines 13-21: “…site restrictions, defective design, change of conditions from the time of design, and improper maintenance of the roadway. The incident occurred due to the site restrictions, defective design, change of conditions from the time of design, and improper maintenance of the roadway … restricted sight lines for the cars traveling uphill or downhill on Montrose Avenue, downhill approach on Montrose Avenue at Mar Vista Avenue/Rincon Avenue causing vehicles to increase speed, … roadway curvature and changed conditions from the original design.”

Complaint, ¶17, lines 19-24: “… restricted sight lines for the cars traveling uphill or downhill on Montrose Avenue, downhill approach on Montrose Avenue at Mar Vista Avenue/Rincon Avenue causing vehicles to increase speed, … roadway curvature and changed conditions from the original design.”

Complaint, ¶22, lines 19-28: “… restricted sight lines for the cars traveling uphill or downhill on Montrose Avenue, downhill approach on Montrose Avenue at Mar Vista Avenue/Rincon Avenue causing vehicles to increase speed, … roadway curvature and changed conditions from original design.”

Defendant’s Motion to Strike is made on the ground that Plaintiff added impermissible allegations to the Complaint in divergence from Government Code section 911.2 et seq. Defendant incorporates its argument in its concurrently filed demurrer regarding significant variance from the Government Claim. Section 911.2 provides that a claim for injuries shall be presented not later than six months after the accrual of the cause of action. Defendant does not contest the timeliness of Plaintiff’s Government Claim. The purpose of Defendant’s reliance on Government Code Section 911.2 is unclear and so Defendant’s argument of claim variance is considered chiefly.

For the same reasons expressed above regarding Defendant’s demurrer, Plaintiff’s allegations in the Complaint are not improper and the Government Claim does not significantly vary from the Compliant. Accordingly, Defendant’s motion to strike is DENIED.

Moving Party is ordered to give notice.