2017-00220270-CU-BC

Simplexgrinnell, LP vs. City of Sacramento

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Bickel, Melissa D.

Defendant City of Sacramento’s (“City”) motion for judgment on the pleadings as to plaintiff’s complaint is DENIED, as follows.

Plaintiff’s counsel failed to comply with CRC Rule 2.111(3).

Factual Background. This action arises out of a contract whereby plaintiff was to replace the fire alarm system in a particular building owned by City. Plaintiff contends it is currently owed nearly $85,000 on the project.

City now moves for judgment on the pleadings on the grounds that although the complaint alleges plaintiff’s compliance with the Government Claims Act (“Act”), City’s records do not reflect receipt of a timely claim from plaintiff and that this is fatal to the present action. City’s motion is premised primarily on its request for judicial notice of the Declaration by Patrick Flaherty, City’s Risk Manager, which avers that City’s database of all claims received and processed does not reflect the receipt of any claim from plaintiff relating to the matters alleged in the current action.

Plaintiff opposes, arguing first that it is undisputed the complaint alleges compliance with the Act and therefore, judgment on the pleadings would be inappropriate in the face of allegations sufficient to state a valid cause of action against City. Second, the opposition insists there is no legal basis for City’s request for judicial notice of a government employee’s declaration attesting to plaintiff’s non-compliance with the Act and this evidence cannot be considered on a motion for judgment on the pleadings which merely challenges the sufficiency of the allegations. Third, plaintiff insists it is exempt from the requirements of the Act by virtue of the subject contract’s provisions relating to the submission of claims for additional payments and regardless, plaintiff did submit a written claim to the City for the amounts alleged to be due.

Request for Judicial Notice. City’s request for judicial notice of plaintiff’s complaint is unnecessary but is nevertheless granted.

City’s request for judicial notice of the Flaherty Declaration is granted but only as to its existence, not as to its contents. (See, e.g., Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [“There exists a mistaken notion that this means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and

affidavits. … A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”])

While City cites Fowler v. Howell (1996) 42 Cal.App.4th 1746 for the proposition that a court may take judicial notice of a declaration averring that a plaintiff did not file a claim as required by the Act, the Second District Court of Appeal actually granted judicial notice in Fowler pursuant to Evidence Code §452(c) [permissive judicial notice] and §459 [reviewing courts] but neither of these provisions appears to compel this court to take judicial notice of the contents of the Flaherty Declaration. This is particularly true inasmuch as City has otherwise conceded that a motion for judgment on the pleadings, like a demurrer, merely challenges the adequacy of the pleadings and does not entail consideration of any “extrinsic” evidence.

Moreover, to the extent Gong v. City of Rosemead (2014) 226 Cal.App.4th 363 appears to construe Fowler as permitting the trial court to take judicial notice in determining whether a plaintiff complied with the claims requirement of the Act, Gong is not so much addressing the existence of a claim but rather whether claim properly identified the facts on which the subsequent lawsuit is premised (i.e., “[E]ach cause of action must [be] reflected in a timely claim.”). However, this justification for granting judicial notice has no application to the case at bar.

Analysis. The present motion for judgment on the pleadings must be denied. First, as noted above, City’s request for judicial notice of the Flaherty Declaration attesting to the absence of any claim filed by plaintiff has been granted only as to its existence but not its contents. Since plaintiff’s complaint otherwise adequately alleges compliance with the Act in Paragraph 8, City is not entitled to judgment on the pleadings.

Additionally, even if the court were to take judicial notice of Flaherty’s assertion that plaintiff did not file a claim as required by the Act, City has overlooked the fact that Paragraph 8 of the complaint also alleges plaintiff was “exempt” from filing such a claim. The court notes that City’s moving papers nowhere appear to address this allegation or its potential impact on plaintiff’s ability to pursue this action despite its alleged non-compliance with the Act.

Finally, the opposition has raised a number of factual questions which cannot be resolved on a motion for judgment on the pleadings and which therefore preclude the granting of this motion. In particular, there are questions of whether the subject contract between the parties provided an alternative to the typically mandatory compliance with the Act and even if it did not, whether plaintiff timely submitted a claim which satisfies the Act.

Objections to Evidence. Both sides’ objections to evidence are overruled since, as explained above, the court’s consideration on a motion for judgment on the pleadings is limited to the facts alleged in the complaint and those matters for which judicial notice is granted. Consequently, the court did not consider any “evidence” in connection with this motion.