Case Name: Kyleean Cozzitorto Beltran v. Morgan Hill Unified School District, et al.
Case No.: 2015-1-CV-276960

This is a personal injury case brought by plaintiff Kyleean Cozzitorto Beltran (“Plaintiff”) against defendants Morgan Hill Unified School District (“MHUSD”), Live Oak Safe and Sober Grad Night, Inc. (“LOSSGN”), Live Oak AG Boosters (“LOB”), Erin Larrus (“Larrus”), and Heidi Golden (“Golden”) (collectively, “Defendants”).

According to the allegations of the operative First Amended Complaint (“FAC”), Plaintiff and another minor were involved in a motor vehicle accident while working under the supervision of LOSSGN, LOB, Golden, and Larrus at Live Oak High School, a school within MHUSD. The other minor, unlicensed, drove the vehicle and crashed it while Plaintiff was sitting in the passenger seat. MHUSD, LOB, Larrus, and Golden controlled and possessed the vehicle at all times and allowed the minor to operate it. Plaintiff sustained injuries as a result of the crash.

Plaintiff asserts the following causes of action in the FAC: (1) motor vehicle negligence; (2) general negligence; and (3) premises liability.

Larrus demurs to each cause of action on the grounds of uncertainty and failure to state sufficient facts to constitute a cause of action. Larrus additionally moves to strike Plaintiff’s demand for exemplary damages. Plaintiff opposes both the demurrer and motion to strike.

For the reasons discussed below, the demurrer OVERRULED and the motion to strike is DENIED.
I. Request for Judicial Notice
In support of her demurrer, Larrus filed a request for judicial notice of: (1) Plaintiff’s FAC; (2) Plaintiff’s Deposition, taken July 27, 2016; and (3) Plaintiff’s responses to Requests for Admissions, Set One.
With respect to the first exhibit, the Court finds it is unnecessary to take judicial notice of Plaintiff’s FAC because it is the pleading under review. (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.)
With respect to the second and third exhibits, Larrus argues the Court can take judicial notice of Plaintiff’s deposition and her responses to the requests for admissions (“RFAs”), attached as Exhibits 2 and 3 respectively. She cites Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 596 for the proposition that a court can “take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.” (Id. at p. 604.)

With respect to Exhibit 2, the deposition testimony, courts are not entirely in agreement on whether this is the proper subject of judicial notice. Garcia v. Sterling (1985) 176 Cal.App.3d 17 (“Garcia”) held that “[a]lthough the existence of statements contained in a deposition transcript filed as part of the court record can be judicially noticed, their truth is not subject to judicial notice.” (Id. at p. 22.) By contrast, Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369 (“Joslin”) followed a different approach and stated that “judicial 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.” (Id. at p. 375.) Thus, the court stated in a footnote that it was “not prepared to say that a court on a demurrer can never accept the truth of statements in a deposition and to this extent must part company with [Garcia].” (Ibid.) Joslin ultimately refused to take judicial notice of the truth of statements made by a deponent at a deposition where the plaintiff opposing the demurrer did not agree that those statements were true. (Id. at p. 375-376.) “The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff. (Del E. Webb Corp., supra, 123 Cal.App.3d at p. 605)

The deposition testimony here is not part of a court record. Further, there is a factual dispute concerning the statements made by Plaintiff in her deposition. As such, the Court will only take judicial notice of the existence of Exhibit 2, but not the truth of the matters stated within.

Lastly, with respect to Exhibit 3, discovery responses can be judicially noticed only “where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.” (Del E. Webb Corp., supra, 123 Cal.App.3d at p. 605 [plaintiff’s affidavits in opposition to summary judgment]; see Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 83 [interrogatory responses]; Able v. Van Der Zee (1967) 256 Cal.App.2d 728, 734 [requests for admissions].) Here, Exhibit 3 cannot be judicially noticed because it does not contradict any of the general allegations contained in the FAC. Thus, the Court will only take judicial notice of the existence of Exhibit 3, but not the truth of the matters stated within.
Accordingly, Larrus’ request for judicial notice is DENIED as to Exhibit 1, and GRANTED as to Exhibits 2 and 3 as to their existence, but not the truth of the matters stated within.
II. Demurrer
Larrus demurs to the first, second, and third causes of action on the grounds of uncertainty and failure to state sufficient facts. However, only the first two causes of action for motor vehicle negligence and general negligence are asserted against Larrus. (See FAC, p. 6; Opp., p. 1:9-13, 2-3, 12:14-16.) As such, Larrus does not have standing to demur to the third cause of action for premises liability.
A. Uncertainty
To avoid a demurrer for uncertainty, the plaintiff must “‘set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.’ [Citations.]” (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.) A demurrer for uncertainty should only be sustained when the complaint is so unclear that a defendant cannot reasonably respond. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) “It is the well established rule that a special demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet. A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145–146 [internal quotation marks and citations omitted].)
Larrus generally argues that the FAC is uncertain, ambiguous, and unintelligible. However, she does not support this contention. Instead, her arguments are based entirely upon Plaintiff’s purported failure to incorporate sufficient facts in the complaint to state a viable claim, or inconsistencies between the FAC and the exhibits attached to her request for judicial notice. She does not argue that uncertainty exists as to the allegations actually made. As such, the demurrer for uncertainty is not sustainable.
B. Failure to State Sufficient Facts
“A demurrer tests only the legal sufficiency of the pleading.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) In reviewing the sufficiency of a complaint against a demurrer, courts treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Courts also consider matters subject to judicial notice, and accept as true facts that may be inferred from those expressly alleged. (Ibid.; Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 719, fn.7.)
Larrus argues that Plaintiff’s first and second causes of action for motor vehicle negligence and general negligence fail to state that: (1) Larrus entrusted the vehicle to her; (2) Plaintiff was employed by any of the Defendants, including Larrus; (3) Larrus owed her a duty of care; and (4) Larrus breached that duty of care. In opposition, Plaintiff states she alleged sufficient facts to state a claim for negligence.
As a preliminary matter, Larrus bases her arguments solely on Plaintiff’s deposition testimony and Plaintiff’s responses to Golden’s RFAs, attached to her request for judicial notice as Exhibits 2 and 3. She contends that because of the inconsistencies between the exhibits and the FAC, Plaintiff cannot allege a cause of action for negligence against her. However, the Court did not take judicial notice of the truth of the matters stated within Exhibits 2 and 3. Thus, the facts are extrinsic evidence and the Court cannot consider them when ruling on this demurrer.
“Four elements are required to successfully plead a negligence cause of action: (1) defendant’s legal duty of care to plaintiff; (2) breach of that duty; (3) injury proximately caused by that duty; and (4) damages to plaintiff.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141.) Negligence may be pled in general terms without detailing the specific manner in which the injury occurred. (Stephenson v. Southern Pac. Co. (1894) 102 Cal. 143, 147; Guilliams v. Hollywood Hosp., (1941) 18 Cal.2d 97, 101.) A plaintiff must indicate the acts or omissions which are said to have been negligently performed. (Guilliams, supra, 18 Cal.2d at p. 101.) The plaintiff must allege ultimate facts that, as a whole, apprise the adversary of the factual basis of the claim. (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415.)
Plaintiff’s first two causes of action appear to allege that Larrus owed her a duty of care because she and the other minor were working for and under the supervision of Larrus in the course and scope of their duties in performing clean up for Larrus. She asserts that Larrus breached that duty by entrusting the motor vehicle to an unlicensed minor who then operated the vehicle in the course of her employment when the incident occurred. She also alleges that Larrus exercised control and possession of the vehicle at all times prior to and on the date of the incident. Although the FAC could be more detailed, it is sufficient to apprise Larrus of the nature of the causes of action against her.
Accordingly, Larrus’ demurrer to each cause of action against her on the grounds of uncertainty and failure to state sufficient facts is OVERRULED.
III. Motion to Strike

On a motion to strike a pleading under Code of Civil Procedure section 435, a court may strike out any improper matter inserted in any pleading, including improper damages. (Code Civ. Proc., § 436, subd. (a); see Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) As with a demurrer, in ruling on a motion to strike, the allegations of the pleading subject to the motion are assumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 [“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].) Specific factual allegations are required to support a punitive damage claim. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) However, the complaint is read as a whole so even conclusory allegations may suffice when read in context with facts alleged as to defendant’s wrongful conduct. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)

Larrus moves to strike Plaintiff’s request for exemplary damages against her on the ground that the damages are improper. She argues that Plaintiff fails to state facts showing that she was guilty of oppression or malice as required to support a punitive damages award in her individual capacity. She also states that as a public employee, she is immune from claims for exemplary damages. In response, Plaintiff states that she alleges that Larrus’ pattern or practice of allowing minors, unlicensed drivers, and other students to drive the vehicle shows conscious disregard for the safety of others. Plaintiff also argues that punitive damages may be awarded against a public employee based on the employee’s malicious or oppressive conduct.

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. ‘Malice’ is defined in the statute as conduct ‘intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.’ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [internal citations and quotation marks omitted].)

Plaintiff alleges in her exemplary damages attachment that Larrus engaged in conduct with malice and oppression. To support these ultimate facts, she alleges that Larrus engaged in a repeated pattern or practice of allowing minors, unlicensed drivers, and other students, past and present, to drive the subject vehicle against the policy and rules in effect with the school, the California Vehicle Code’s restrictions, and the warnings and instruction for operation of the vehicle. As such, she asserts that Larrus’ conduct was despicable and done with a willful and knowing disregard of the rights or safety of others because she was aware of the probable consequences and deliberately failed to avoid them. These allegations are sufficient to plead that Larrus acted with malice or oppression. (See Civ. Code, section 3294, subds. (c)(1), (2); Peterson v. Superior Court (1982) 31 Cal.3d 147, 158 [conscious disregard will support the imposition of punitive damages].) Again, the Court will not consider Larrus’ arguments to the extent that they are based on extrinsic evidence.

Additionally, the liabilities of public entities and public employees are separately and distinctly provided for. (See Gov. Code, §§ 815, 818, 820.) As such, Larrus’ argument that Plaintiff cannot recover exemplary damages against her as an employee of MHUSD is untenable. (See Runyon v. Superior Court (1986) 187 Cal.App.3d 878, 880-882.)

Accordingly, Larrus’ motion to strike Plaintiff’s request for exemplary damages is DENIED.