2012-00128933-CU-PO

Richard Trainor vs. Victims Compensation Board

Nature of Proceeding:    Hearing on Demurrer

Filed By:   Collins, Robert L.

The demurrer of Defendant State of California, acting by and through the Victims
Compensation and Claims Board, (“Board”) to Plaintiff Richard Trainor’s (“Trainor”) first
amended complaint (“FAC”) is SUSTAINED with leave to amend as follows:

Preliminarily, the court disregards the exhibits attached to Trainor’s opposition.  Those
exhibits are not incorporated into the FAC, and the court may not consider them or any
other evidence when ruling on a demurrer.  (See, e.g., Rossberg v. Bank of America,
N.A. (2013) 219 Cal.App.4th 1481, 1487, fn. 3 [citation omitted].)

Given the numerous incomplete sentences, the references to individuals whose
relevance to the action is unclear, and the otherwise confusing allegations in the FAC,
it is difficult to describe the nature of this lawsuit.  The court gathers from its review of
the FAC that Trainor allegedly was injured by unknown assailants and subsequently
filed a claim with the Board, which the Board accepted.  Trainor further alleges that the
Board failed to pay his claim “first” and “mishandled the claim for years.”  In addition,
Trainor appears to allege the Board misadvised him about the way in which to
discharge a hospital-stay bill and failed to inform him about the extent of his brain
injury.  Trainor has pleaded against the Board causes of action for negligence, fraud
and intentional tort.  The Board now demurs on grounds of uncertainty and failure to
state a cause of action.

Uncertainty

The demurrer is SUSTAINED as to all causes of action.  The allegations are so
ambiguous and disorganized that the Board cannot reasonably be expected to frame a
response.

Because this is the court’s first opportunity to rule on the Board’s objections to
Trainor’s allegations, the court grants leave to amend.  If Trainor files a second
amended complaint (“SAC”), he and his counsel are advised to set forth all factual
allegations in complete sentences and in clear English.  Trainor and his counsel are
further advised to establish the relevance of all persons mentioned in the allegations.
If additional pages are required to set forth the facts clearly, then Trainor and his
counsel should use additional pages.  Finally, Trainor’s counsel is directed to cite
statutes and regulations in a format prescribed in either the California Style Manual or
the The Bluebook: A Uniform System of Citation.  Trainor’s current abbreviated
citations to statutes and regulations are difficult to decipher.

Failure to State a Cause of Action

Preliminarily, the court rejects the Board’s argument that, although Trainor checked the
box in the FAC to indicate compliance with any applicable claims statutes, Trainor
failed to allege compliance with the Government Claims Act (“GCA”) by failing to allege
more specific facts about his compliance.  The FAC is a Judicial Council form
complaint, and this court presumes that by reducing the claims-compliance component
of the form to a check-the-box process, the Judicial Council was facilitating compliance
with applicable pleading requirements.  Furthermore, although the Board has cited
authority for the proposition that a plaintiff seeking damages against a government
entity must allege facts establishing compliance with the GCA, it has not cited any
case holding that a plaintiff cannot comply by filling out a Judicial Council form
complaint.  Absent such an authority, the court is not persuaded and rejects the
Board’s argument.

The court also rejects at the outset Trainor’s arguments in the opposition based upon
prematurity and public policy.  Although the relevance of these arguments is difficult to
discern, the court concludes that the demurrer is not premature and that public policy
considerations do not alter the analysis or outcome of the demurrer.

The First and Third Causes of Action for Negligence and “Intentional Tort”

The demurrers are SUSTAINED with leave to amend.

Trainor has failed to state direct-liability theory of negligence or intentional tort against
the Board because he has failed clearly to identify the statute purportedly creating a
mandatory duty.  (See Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th
1175, 1183 [“tort liability of public entities must be based on a specific statute declaring
them to be liable, or at least creating some specific duty of care…”].)  Likewise, to the
extent Trainor’s first and third causes of action are based on the Board’s vicarious
liability for an employee’s acts or omissions, Trainor has failed clearly to establish
which (if any) employee engaged in tortious conduct and which act(s)/omission(s)
were tortious.  (See id. at 1180; Ramos v. County of Madera (1971) 4 Cal.3d 685, 695-
696.)

The court grants Trainor leave to amend his negligence and intentional tort causes of
action.

The Second Cause of Action for Fraud

The demurrer is SUSTAINED with leave to amend.

The demurrer is sustained because Trainor has failed to plead with the requisite
specificity.  To state fraud, Trainor must allege facts “which show how, when, where, to
whom, and by what means the representations were tendered.”  (Lazar v. Superior
Court (1996) 12 Cal.4th 631, 645 [citation and internal quotations marks omitted].)
Because Trainor has not pleaded such specific facts, the Board’s demurrer must be
sustained.

The court grants Trainor leave to amend his fraud cause of action.

Conclusion

No later than January 7, 2014, Trainor may file and serve an SAC; the Board to file
and serve its responsive pleading(s) within 14 days thereafter, 19 days if the SAC is
served by mail.  (Although not required by any statute or rule of court, Trainor is
requested to attach a copy of the instant minute order to the SAC to facilitate the filing
of the pleading.)

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.