2017-00208789-CU-PA

Katherine Madsen vs. Peter Daniel Taste

Nature of Proceeding: Hearing on Demurrer

Filed By: Villa, Kayla C.

Defendants Fair Oaks Water District and Peter Daniel Taste’s unopposed demurrer to Plaintiffs Katherine Madsen’s, et. al.’s complaint is sustained with leave to amend.

In this personal injury action Plaintiffs allege causes of action for motor vehicle negligence and general negligence is connection with a motor vehicle accident that occurred on February 22, 2016.

The demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) Plaintiffs failed to allege compliance

with the Tort Claims Act. (Gov.’t Code §§ 911.2, 945.4.) The Government Claims Act requires the presentation of a claim for money or damages to a public entity as a prerequisite for litigation against that entity or its employees. (Gov. Code §910, et seq.; Phillips v. Desert Hospital Dist. (1989) 49 Cal. 3d 699, 708-709.) The claim-filing requirements of the Government Code stem from the legislative prerogative to impose conditions as a prerequisite to the commencement of any action against the a public entity for money damages; they are specific and mandatory regulations which must be strictly complied with. Bozaich v. State of California (1973) 32 Cal. App. 3d 688, 697.

In addition, Defendants are a public entity and public employee and Plaintiffs fail to allege a statutory basis for liability. (Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 96.) In California, public entity liability for personal injury is governed by statute. (Gov. Code § 815(a); Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 703; Biscotti v. Yuba City Unified School District (2007) 158 Cal.App.4th 554, 558.) Sections 815, subdivision (a) and 815.6, require an authorizing statute or enactment before a governmental entity such as the Water District can be liable in tort. The demurrer is sustained for the reasons stated in Defendants’ memorandum of points and authorities. The Court construes Plaintiff’s failure to oppose the demurrer as a concession on the merits. Nevertheless, as this is the first challenge to the pleading, leave to amend is granted.

Plaintiffs may file and serve an amended complaint no later than January 22, 2018. Defendants shall file and serve their response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP § 430.41 extension as necessary.