Isabel Siefe vs Sina Faravashi et al
Case No: 18CV05879
Hearing Date: Wed May 08, 2019 9:30

Nature of Proceedings: Case Management Conference; Motion to Strike

TENTATIVE RULING:

For the reasons set forth herein, the motion of defendant County of Santa Barbara to strike portions of plaintiff Isabel Seife’s complaint is denied. Defendant County shall file and serve its answer to the complaint on or before May 23, 2019.

Background:

As alleged in the complaint: Plaintiff Isabel Seife was riding her bicycle east on Sueno Road approaching the intersection of Camino Pescadero on November 15, 2017. (Complaint, ¶ 8.) Seife stopped at the stop sign and looked to the left and right. (Ibid.) Defendant Sina Faravashi was driving south on Camino Pescadero at an unsafe speed. (Complaint, ¶ 12.) At the time Seife had reached roughly the middle of Camino Pescadero, Seife was hit by the vehicle driven by Faravashi, causing serious bodily injuries to Seife. (Complaint, ¶ 13.)

On May 4, 2018, Seife filed with defendant County of Santa Barbara (County) a claim form describing the incident and Seife’s claim for liability against County. The claim form states in part:

“On November 15, 2017, the above-described public property was in a dangerous condition that created a substantial risk of the type of injury alleged when the property was used with due care in a manner that was reasonably foreseeable that it would be used in. The placement of the stop sign on Sueno Road at the intersection with Camino Pescadero is set far back from the intersection which obscures and prevents visibility to persons entering the roadway onto Camino Pescadero or approaching Sueno Road from Camino Pescadero. The placement of the stop sign and the failure to paint curbs red at or near the comers of the intersection obscured the view of drivers approaching the intersection so that drivers/bicyclists crossing from all directions could reasonably believe they had the right of way and could not see automobiles, bicycles, joggers and/or pedestrians coming from different directions.” (Request for Judicial Notice [RJN], exhibit A, p. 5.) “As a proximate result of the dangerous condition of the intersection, when Isabel Seife entered the intersection, she was struck by an automobile driven by Sina Faravashi, who did not stop because he could not see Isabel Seife because the visibility of automobiles and/or bicyclists traveling on Camino Pescadero towards Sueno Road was obstructed by cars parked near the comers of the intersection thereby causing injuries to the claimant.” (Ibid.) (Note: County has failed to provide continuous pagination for its exhibits as required by Rules of Court, rule 3.1110(c). Page numbers provided here are to the page of the electronic document filed in the court.)

On June 7, 2018, County denied plaintiff’s claim. (RJN, exhibit B.)

On December 3, 2018, Seife filed her original complaint in this action against Faravashi, as driver, against Sohrab Faravashi as the owner of the vehicle (Complaint, ¶ 4), and against County. The second cause of action, asserted against County, is for liability based on a dangerous condition of public property. Seife alleges:

“The intersection of Sueno Road and Camino Pescadero was unsafe, dangerous and defective for reasons including, but not limited to, the following:

“a. The placement of the stop sign on Sueno Road at the intersection with Camino Pescadero is set far back from the intersection which obscures and prevents visibility to persons entering Camino Pescadero.

“b. The County failed to paint curbs red at the corners of the intersection of Sueno Road and Camino Pescadero which allowed vehicles to park at the corners of the intersection and obscure the view of persons entering Camino Pescadero.

“c. The County failed to cut trees located at the corner of the intersection of Sueno Road and Camino Pescadero, thus obscuring the view of persons entering Camino Pescadero.” (Complaint, ¶ 25.)

On March 28, 2019, defendants Sina Faravashi and Sohrab Faravashi filed their answer to the complaint, generally denying the allegations thereof and asserting four affirmative defenses.

On April 2, 2019, County filed its motion to strike paragraph 25(c) from the complaint on the grounds that Seife’s claim filed with County did not expressly identify the failure to cut trees as a basis for negligence liability.

Seife opposes the motion.

Analysis:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes an “allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.” (Code Civ. Proc., § 431.10, subds. (b)(2), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

In support of the motion, County requests that the court take judicial notice of: (RJN, exhibit A) plaintiff’s notice of claim filed with County; and, (exhibit B) County’s written rejection of the claim. The court grants the unopposed request for judicial notice. (See Evid. Code, § 452, subds. (c), (h).) Judicial notice does not extend to the truth of factual matters set forth in such documents.

“[N]o 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.)

County argues that the claim of negligence asserted in paragraph 25(c) of the complaint is a different claim than the claim presented in plaintiff’s claim form and therefore is an improper allegation subject to a motion to strike. Seife argues that the assertion of liability relating to the failure to cut trees is not a new or different claim from Seife’s claim that County is liable based upon the placement of the stop sign and the attendant lack of visibility.

“As noted above, section 945.4 requires each cause of action to be presented by a claim complying with section 910, while section 910, subdivision (c) requires the claimant to state the ‘date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted.’ If the claim is rejected and the plaintiff ultimately files a complaint against the public entity, the facts underlying each cause of action in the complaint must have been fairly reflected in a timely claim. [Citation.] ‘[E]ven if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’ [Citation.]” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447 (Stockett).)

“The claim, however, need not specify each particular act or omission later proven to have caused the injury. [Citation.] A complaint’s fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an ‘entirely different set of facts.’ [Citation.] Only where there has been a ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim,’ have courts generally found the complaint barred. [Citation.] Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.” (Stockett, supra, 34 Cal.4th at p. 447.)

Not surprisingly, the parties rely respectively upon cases that find a claim form statement sufficient or insufficient. County principally relies upon Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242 (Laabs), Turner v. State of California (1991) 232 Cal.App.3d 883 (Turner), and Donohue v. State of California (1986) 178 Cal.App.3d 795 (Donahue). Seife principally relies on Stockett, supra, 34 Cal.4th 441, Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269 (Stevenson), Blair v. Superior Court (1990) 218 Cal.App.3d 221 (Blair), White v. Superior Court (1990) 225 Cal.App.3d 1505 (White), and Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266 (Smith). Insofar as the parties’ arguments seek to establish that one line of cases is factually more pertinent to the disposition of this motion than the other, it is useful first to look at the factual bases underlying these cases.

In Laabs, an automobile accident occurred at the intersection of a four-lane highway and a two-lane roadway, with a stop sign and limit line on the two-lane roadway. (Laabs, supra, 163 Cal.App.4th at pp. 1247-1248.) The accident occurred where one vehicle was turning from the two-lane roadway onto the four-lane roadway and was struck by a speeding vehicle in the four-lane roadway. (Id. at pp. 1248-1249.) The plaintiff, a passenger in the speeding vehicle, asserted in her complaint a cause of action against the defendant city based upon a dangerous condition of public property. (Id. at pp. 1248, 1249.) The complaint alleged that there was inadequate sight distance so that the driver of the turning vehicle did not perceive the approaching speeding vehicle as a result of the negligent design, construction, maintenance, and control of the road conditions. (Id. at pp. 1249-1250.) The city moved for summary judgment, which was opposed by the plaintiff arguing, among other things, that the placement of a light pole constituted a dangerous condition that contributed to the severity of the plaintiff’s injuries. (Id. at p. 1250.) The trial court granted summary judgment. (Ibid.)

On appeal in Laabs, the court addressed the issue of whether the plaintiff could oppose the motion for summary judgment by raising the unpleaded claim of the dangerousness of the light pole’s location. (Laabs, supra, 163 Cal.App.4th at pp. 1252-1253.) Noting that the pleadings delimit the issues to be considered on summary judgment, the court considered instructive prior decisions addressing the issue of whether the complaint adds factual allegations that are not encompassed by the plaintiffs government tort claim. (Id. at pp. 1253-1255.) In reaching its decision, the Laabs court summarized Donohue, Blair, and Turner as follows:

“In [Donohue], the plaintiff alleged in his claim that the State of California was negligent in allowing an uninsured motorist to take the driving test. In his complaint, he contended that the state was negligent by failing to instruct, direct, and control the driver in operating the vehicle. In affirming the trial court’s grant of the motion for judgment on the pleadings, the court stated, ‘[t]he act of permitting an uninsured motorist to take a driving test is not the factual equivalent of the failure to control or direct the motorist in the course of his examination.’ [Citation.]” (Laabs, supra, 163 Cal.App.4th at p. 1255.)

“In [Blair], the plaintiff was a passenger in a vehicle that struck a tree after leaving the roadway. In his claim, the plaintiff contended that the car went out of control because of ice on the roadway and that the state negligently maintained and constructed the highway. The plaintiff’s claim further indicated that the state failed to sand and care for the highway. In his complaint, the plaintiff added to the allegations by pleading, ‘ “5. … in addition, at that point, the roadway crosses a stream over a culvert or bridge requiring guard rails where there was no guard rail; in addition, the slope of the road is such that a vehicle striking ice is carried off the road causing it to strike adjacent roadside barriers including large trees that have been left close to the road also without a guard rail. [¶] 6. No warning signs were in place nor any other device designed to either advise the traveling public of danger or ameliorate that danger.” ’ [Citation.] The trial court granted the defendant’s motion to strike the added allegations. The appellate court reversed, indicating that it did not read the claim as narrowly as the defendant and that the law does not require the degree of specificity argued by defendant. In distinguishing Donohue [and] other cases, the court stated, ‘[i]t is apparent that in each of the decisions the plaintiff did not merely elaborate or add further detail to a claim which was predicated on the same fundamental facts set forth in the complaint. Rather, there was a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim. In contrast, the claim and the complaint in this action are premised on essentially the same foundation, that because of its negligent construction or maintenance, the highway at the scene of the accident constituted a dangerous condition of public property.’ [Citation.] The court went on to add, ‘[a] charge of negligent construction may reasonably be read to encompass defects in the placement of highway guard rails, slope of the road, presence of hazards adjacent to the roadway or inadequate warning signs.’ [Citation.]” (Laabs, supra, 163 Cal.App.4th at pp. 1255-1256.)

“In Turner, the alleged discrepancy was not between the claim and the complaint, but rather between the claim and the facts submitted in opposition to the motion for summary judgment. There, the plaintiff was shot in the parking lot of Cal Expo in Sacramento. He alleged in his claim that the defendants knew or should have known that gang-related violence and shootings had occurred on the premises, and that the defendants ‘failed to provide adequate warnings and/or security to members of the general public….’ [Citation.] In its motion for summary judgment, the defendants argued that it was not liable on a theory of negligence or dangerous condition of public property based on its failure to provide adequate security. In response, the plaintiff submitted evidence of inadequate lighting in the area where the shooting occurred. The trial court granted summary judgment, concluding that the claim of inadequate lighting was barred because no such allegation was included in the claim. In affirming, the appellate court indicated, ‘Nowhere [in the claim] is there any mention of inadequate lighting as a basis for the dangerous condition of property….’ [Citation.] The Turner court distinguished Blair, stating, ‘In … Blair the allegations in the claim were broad enough to encompass those in the complaint. The allegations of the complaint merely clarified the allegations of the claim. Here, the allegations plaintiff seeks to introduce are completely different from those contained in the claim. Read in its entirety, the dangerous condition alleged in the claim is known criminal activity, not inadequate lighting. The new allegations constitute a complete shift in theory from what the defendants are alleged to have done to cause plaintiff’s injuries.’ [Citation.]” (Laabs, supra, 163 Cal.App.4th at pp. 1256-1257.)

The Laabs court found that the light pole condition raised in opposition was outside of the pleadings. (Laabs, supra, 163 Cal.App.4th at pp. 1257-1258.) The complaint in Laabs addressed only the problem with the intersection, that is, that the drivers of the two vehicles could not see each other. (Id. at p. 1258.) The dangerous condition alleged was the inadequate sight distance and lack of warning signs, devices and signals. (Ibid.) “The additional fact shifts the alleged dangerous condition to a portion of public property not remotely referenced in the amended complaint. It attempts to predicate liability on a totally different condition, not the least bit involved with the intersection or inadequate sight distance.” (Ibid.) As a result, the court concluded that the light pole condition could not be raised in opposition to summary judgment. (Ibid.)

In Stockett, the plaintiff, a former general manager of the defendant agency, presented a notice of tort claim stating that he had been terminated for supporting a female employee’s sexual harassment claim against the agency’s insurance broker, that members of the agency’s executive committee had refused to select an insurance provider through a competitive bidding process, and that the members and broker, after learning that the plaintiff was considering soliciting other bids, conspired to terminate him. (Stockett, supra, 34 Cal.4th at p. 444.) The notice of claim stated that the plaintiff was wrongfully terminated after the committee held a closed session. (Ibid.) After the claim was denied, the plaintiff filed a lawsuit against the agency. (Ibid.) The plaintiff later amended his complaint, over the opposition of the agency based upon the scope of the plaintiff’s notice of claim, to allege that he had been terminated in violation of public policy on three grounds: (1) opposing sexual harassment; (2) objecting to a conflict of interest in the agency’s insurance broker; and, (3) exercising his First Amendment right of free speech by objecting to the agency’s practice of not having its insurance purchased through an open bid process. (Id. at pp. 444-445.) The agency again raised the issue of the variance between the plaintiff’s claim and the theories of liability in a motion for nonsuit, which was denied by the trial court. (Id. at p. 445.) The jury returned a verdict in favor of the plaintiff. (Ibid.) On appeal, the Court of Appeal reversed, holding that “ ‘[b]y allowing the conflict of interest and free speech theories to be presented to the jury, the trial court allowed the [plaintiff] to present a very different case than one based solely on retaliation for objection to sexual harassment.’ ” (Ibid.)

The California Supreme Court reversed the Court of Appeal. (Stockett, supra, 34 Cal.4th at p. 443.) After stating the standards quoted above, the court identified that while the plaintiff’s “claim did not specifically assert his termination violated the public policies favoring free speech and opposition to public employee conflicts of interest, these theories do not represent additional causes of action and hence need not be separately presented under section 945.4.” (Id. at p. 447.) The court also distinguished cases finding a fatal variance between a plaintiff’s claim and complaint by noting that “the additional theories pled in [plaintiff’s] amended complaint did not shift liability to other parties or premise liability on acts committed at different times or places.” (Id. at p. 448.) Like Blair, the court concluded the plaintiff’s “claim and complaint, similarly, are based on the same factual foundation, viz., that certain named [agency] agents wrongfully terminated him.” (Id. at pp. 448-449.) “In summary, [the plaintiff] adequately presented to [the agency] his wrongful termination cause of action. His notice of claim satisfied the purposes of the claims statutes by providing sufficient information for the public entity to conduct an investigation into the merits of the wrongful termination claim, and the complaint’s free speech and conflict of interest theories of termination in violation of public policy were fairly reflected in the claim because the complaint did not change the fundamental facts of the claim. [The plaintiff] was therefore not precluded from amending his complaint to include these theories or from presenting them to the jury.” (Id. at p. 450.)

In Stevenson, the case arose out of the death of the decedent in an earthquake. (Stevenson, supra, 24 Cal.App.4th at p. 273.) The decedent was a tenant in subsidized housing that was contracted with the San Francisco Housing Authority. (Ibid.) Structural defects existed in the building, so that at the time of the earthquake the building shook so violently as to cause the walls, ceiling, and attached objects to become loose and shatter. (Ibid.) One of the flying objects struck the decedent, who suffered serious injuries and several months later died from those injuries. (Id. at pp. 273-274.) The decedent’s daughter filed a notice of claim and then a wrongful death lawsuit. (Id. at p. 274.) The daughter then filed a series of amended complaints. (Ibid.) The Authority filed a demurrer arguing that the daughter was barred from raising theories not described in her written claim. (Ibid.) The trial court sustained the demurrer without leave to amend. (Ibid.)

On appeal in Stevenson, the court noted that the daughter’s claim stated that the decedent fell in his apartment during the earthquake and died of resulting injuries, asserting theories of negligence. (Stevenson, supra, 24 Cal.App.4th at p. 276.) The Authority argued that the claim focused on events that took place after the earthquake, while the complaint focused on a failure to inspect and warn prior to the earthquake. (Ibid.) The Stevenson court compared this case to Donohue, Turner, Blair and other cases, and concluded: “Although the legal theories in [the daughter’s] complaint were more detailed, the written claim referenced [decedent’s] fall in his apartment during the earthquake and negligent maintenance of the premises. The addition of details regarding the precise condition of the building and the failure to inspect and/or disclose the defective condition of the premises are elaborations on the facts stated in the claim. These additional allegations were not based on a different set of facts from those set out in the claim and are fairly included within the facts first noticed in the claim.” (Id. at p. 278.) The court, however, affirmed the sustaining of the demurrer on other grounds. (Id. at p. 273.)

The court in Stevenson summarizes the decision of White as follows:

“In [White], Division Three of this court surveyed several decisions which analyzed the need for a complaint’s allegations to be fairly reflected in the claim filed with a public entity. The court reasoned that the addition of new allegations in the complaint was not fatal unless they were based on an entirely different set of facts. [Citation.] The claim in White stated that a bus driver was falsely arrested and beaten by a police officer. The subsequent complaint alleged causes of action for false imprisonment and negligent hiring, training, and retention of the police officer. The court stated that although the claim did not specify a legal theory of failure to train, it identified the police officer’s acts as the principal cause of the injury.” (Stevenson, supra, 24 Cal.App.4th at p. 278.)

The court in White summarized the decision in Smith as follows:

“In [Smith], the claim said that the county had cut into a hill to create a road and that this cut had removed support for residences and created a landslide danger. Defendants asked the trial court to bar plaintiffs from contending at trial that clearing debris from an earlier slide from the roadway and water runoff over the roadway contributed to the recent landslide. The trial court refused and the appellate court agreed. After discussing the earlier cases, Smith concluded that although the claims did not expressly encompass the additional facts about removing slide debris and about water runoff over the roadway, these new allegations were not ‘ “based upon a set of facts entirely different from those first noticed.” ’ [Citation.] [¶] Smith noted that ‘ “[s]o long as the policies of the claims statute are effectuated, they should be given a liberal construction to permit full adjudication on the merits….” ’ [Citation.] It applied this principle: ‘We agree with the trial court that Homeowners’ assertions at trial regarding the clearing of slide debris from the roadway and the presence of water runoff over the roadway are fairly reflected in these claims. Necessary maintenance of the roadway, such as the clearing of slide debris, and conditions resulting from the presence of the road, such as the channeling of water runoff, are matters closely connected with construction of the road.’ [Citation.]” (White, supra, 225 Cal.App.3d at p. 1510.)

In reviewing the law as set forth in these cases, it is significant to note that all of the Court of Appeal cases cited, other than Laabs, precedes the Supreme Court’s decision in Stockett. As discussed above, Laabs analyzed a different procedural issue and looked to pre-Stockett law for an analogy. As the only Supreme Court precedent following these cases, the Court of Appeal cases must be considered in light of the standard identified and harmonized in Stockett: The standard identified in Stockett focuses in part upon the purpose of the claim notice statutes “ ‘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.’ [Citation.]” (Stockett, supra, 34 Cal.4th at p. 446.) The Stockett standard also focuses on whether “there has been a ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim’ ” (Id. at p. 447.)

County characterizes the allegation that County failed to cut trees located at the corner of the intersection of Sueno Road and Camino Pescadero as a complete shift in allegations, representing a different basis of liability from the negligent placement of a stop sign and failure to paint curbs red. Seife characterizes this allegation as additional detail within the same cause of action and theory of liability against County.

The essence of Seife’s claim for dangerous condition of public property is set forth in the first pleaded item of negligence, namely, the allegation that the placement of the stop sign on Sueno Road is set far enough back from the intersection so as to create a condition that obscures and prevents visibility to persons entering Camino Pescadero. (Complaint, ¶ 25(a).) It is self-evident that visibility as it relates to the placement of a stop sign depends entirely upon the other conditions affecting visibility at the intersection—that is, visibility is not an issue if there are no cars, trees, foliage or anything else obstructing lines of sight. Thus, whether or not a stop sign is placed so far back as to obscure and prevent visibility at the intersection depends upon such things as the parking of cars immediately near the intersection and the state of growth of foliage at and about the intersection. Because the dangerous condition complained of by Seife is the inability of drivers to see one another, that dangerous condition could be addressed by moving the stop sign closer, so as to improve the lines of sight given the existence of other conditions obscuring visibility, by removing or mitigating the conditions obscuring visibility, or by some combination of these. The inclusion of detail regarding cutting back trees obscuring visibility does not represent a complete shift in allegations, but merely represents additional detail underlying the claim that the placement of the stop sign in the context of the intersection’s conditions creates a visibility problem for drivers and hence a dangerous condition. Moreover, the investigative purpose of the notice is fulfilled here. When the County investigates the conditions of the intersection with respect to the placement of the stop sign, the County would necessarily determine whether the placement creates a dangerous condition given the visibility conditions created by the parked cars and trees. An appropriate response could be that the dangerous visibility condition could be resolved by keeping the trees as they are but moving the stop sign or by cutting the trees and keeping the stop sign where it is. The fact that the two elements cannot be logically separated in the context of determining whether the stop sign placement creates a dangerous condition of public property demonstrates that the two elements are not based upon a shift in allegations intending to assert liability upon a different basis than as stated in the notice of claim.

On the face of the allegations of the complaint and matter judicially noticed, the court concludes under the standards set forth in Stockett and as exemplified in the Court of Appeal cases discussed above that the pleading of the County’s failure to cut trees at the intersection where the accident occurred is not a material variance from the notice of claim presented to County. County’s motion to strike these allegations will therefore be denied.