Case Name: Stephanie Garcia v. City of San Jose
Case No.: 2018-CV-326481

Demurrer and Motion to Strike to the First Amended Complaint by Defendant City of San Jose

Factual and Procedural Background

This is a motor vehicle accident case. On May 3, 2017, plaintiff Stephanie Garcia was stopped at the intersection of North Market Street before St. James Street in the City of San Jose (“City”). (See First Amended Judicial Form Complaint [“FAC”] at p. 4.) While stopped at the intersection, Plaintiff was struck by a San Jose City fire truck as it exited the fire station. (Ibid.) The FAC alleges a single cause of action against the City for Motor Vehicle and Plaintiff seeks recovery for wage loss, loss of use of property, hospital and medical expenses, general damage, property damage, and loss of earning capacity. (Id. at p. 3.) Plaintiff alleges compliance with the applicable claims statutes. (Id. at p. 2.)

Currently before the Court are the City’s demurrer and motion to strike to the FAC. The City filed a request for judicial notice in conjunction with the motions. Plaintiff filed written oppositions to the motions and request for judicial notice.

Demurrer to the FAC

The City demurs to the FAC on the ground that it fails to state a valid claim. (Code Civ. Proc., § 430.10, subd. (e).) In particular, the City argues this lawsuit is barred by Government Code section 946, subdivision (c) as Plaintiff made a counteroffer that was subsequently accepted by the City to resolve this action.

Request for Judicial Notice

In support of the motions, the City requests judicial notice of the following: (1) Claim filed by Plaintiff on September 6, 2017 (Exhibit 1 or Plaintiff’s Claim); (2) Putative Amendment to Plaintiff’s Claim received on December 6, 2017 (Exhibit 2); (3) Claim filed by Allstate on July 13, 2017 (Exhibit 3 or Allstate’s Claim); (4) Notice of Rejection Upon Allstate’s Claim on August 10, 2017 (Exhibit 4); (5) Plaintiff’s Counteroffer on March 15, 2017 (Exhibit 5); and (6) City’s Notice of Acceptance and Release on March 19, 2018 (Exhibit 6).
Plaintiff’s Claim and Putative Amendment (Exhibits 1 and 2)

With respect to Exhibits 1 and 2, the Court may take judicial notice of Plaintiff’s Claim and the Putative Amendment to the Claim under Evidence Code section 452, subdivision (c). (See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363,368, fn. 1 [“A court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.”].) No opposition to the request for judicial notice with respect to Exhibits 1 and 2. The request for judicial notice is therefore GRANTED.

Allstate Claim and Notice of Rejection of Allstate’s Claim (Exhibits 3 and 4)

Exhibit 3 is a subrogation claim notice from Allstate presented to the Clerk for the City. Exhibit 4 is a notice from the City rejecting Allstate’s Claim. The City requests judicial notice of Exhibits 3 and 4 under Evidence Code section 452, subdivision (c). This section allows a court to take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (Evid. Code, subd. (c).) In opposition, Plaintiff objects to the request for judicial notice as (1) the Allstate claims are not “official acts”; (2) the matters contained within the claims are not relevant; and (3) the matters contained in the documents relate to a claim from a third party, and no proof of service shows that Plaintiff was served with copies of them.

With respect to Exhibit 3, Allstate is a private insurance company and does not constitute a legislative, executive or judicial department of the United States or any state of the United States. Thus, any acts on the part of Allstate do not constitute “official acts” under Evidence Code section 452, subdivision (c). The Allstate Claim therefore is not a proper subject of judicial notice. Despite objections by Plaintiff, the City’s notice rejecting Allstate’s Claim is subject to judicial notice under Evidence Code section 452, subdivision (c). (See Commercial Union Assurance Co. v. City of San Jose (1982) 127 Cal.App.3d 730, 740 [appellate court took judicial notice of city’s official act rejecting notice of claim].)

Accordingly, the request for judicial notice as to Exhibit 3 is DENIED. The request for judicial notice as to Exhibit 4 is GRANTED.

Plaintiff’s Counteroffer and City’s Notice of Acceptance and Release (Exhibits 5 and 6)

The City requests judicial notice of Exhibit 5 which constitutes email correspondence between Plaintiff and the City’s investigator related to Plaintiff’s Claim. The City requests judicial notice of such email correspondence under Evidence Code section 452, subdivision (c). Such email correspondence however does not constitute “official acts” of the legislative, executive or judicial departments of the United States or any states therein. The fact that Plaintiff allegedly communicated a counteroffer to the City’s investigator does not transform the emails into official acts worthy of judicial notice. The Court thus declines to take judicial notice of Exhibit 5.
Finally, Exhibit 6 is the City’s Notice of Acceptance and Release sent to Plaintiff on March 19, 2018. The City once more seeks judicial notice of this letter under Evidence Code section 452, subdivision (c). While this letter may arguably constitute an “official act” of the City, there is some question as to whether the letter and release are even relevant. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [judicial notice is confined to those matters which are relevant to the issue at hand].) The City is presumably relying on this letter and release to establish that both sides have entered into a settlement agreement which bars the current action. This however is problematic as the release attached as Exhibit 6 has not been signed or dated by the Plaintiff establishing any settlement among the parties. For that reason, Exhibit 6 does not establish a settlement of the lawsuit and is therefore irrelevant for purposes of these motions.

Consequently, the request for judicial notice with respect to Exhibits 5 and 6 is DENIED.

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

Demurrer to the FAC

The sole basis for demurrer is that the lawsuit is barred by the City’s acceptance of Plaintiff’s counteroffer. In support, the City relies on Exhibits 5 and 6 in its request for judicial notice. As stated above, the Court denied the request for judicial notice as to these exhibits and thus such evidence is beyond the scope of demurrer. In addition, Exhibits 5 and 6 do not establish any settlement agreement between Plaintiff and the City, particularly since Plaintiff did not sign and date the release incorporated as Exhibit 6. Thus, whether the parties entered into a settlement agreement remains a disputed factual issue that cannot be resolved on demurrer. (See Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 751 [demurrer is inappropriate where factual issues remain].)

Accordingly, the City’s demurrer to the FAC on the ground that it fails to state a claim is OVERRULED.

Motion to Strike to the FAC

The City also moves to strike Plaintiff’s claim for damages for “loss of use of property” and “property damage” as Plaintiff lacks standing and such damage claims are barred by the statute of limitations. The City also moves to strike Plaintiff’s allegation which states “which claim was denied and is attached, Exhibit B” (see FAC at p. 4, MV-2(f)) as well as Exhibit B to the FAC as it is false on its face.

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) 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).)

Claims for Damages

The City moves to strike Plaintiff’s claim for damages for “loss of use of property” and “property damage” on the ground that she lacks standing to sue.

“As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented to the adjudicator.” (Boorstein v. CBS Interactive, Inc. (2013) 222 Cal.App.4th 456, 465.) “A litigant’s standing to sue is a threshold issue to be resolved before the matter can be reached on the merits.” (Ibid.) Like a demurrer, a defendant may bring a motion to strike because a plaintiff lacks standing to sue. (See Pacific Gas & Electric Co. v. Super. Ct. (2006) 144 Cal.App.4th 19, 22 [motion to strike brought on the ground that party lacked standing].)

The City argues Plaintiff subrogated these claims for damages to her insurer, Allstate and thus she is not the real party in interest to these subrogated claims. “Subrogation is the right of an insurer to take the place of its insured to pursue recovery from legally responsible third parties for losses paid to the insured by the insurer.” (Kardly v. State Farm Mut. Auto. Ins. Co. (1989) 207 Cal.App.3d 479, 488.) In support, the City relies on Allstate’s Claim attached as Exhibit 3 in its request for judicial notice. As stated above, the Court denied the request for judicial notice with respect to Exhibit 3. Even if the Court were to accept Exhibit 3 on this motion, as the opposition correctly points out, this would not preclude Plaintiff from having standing to pursue a lawsuit against the City. (See Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 825 [“Both the subrogee (insurer) and the subrogor (insured) have a right of action against the tortfeasor.”].)

In addition, the City argues Plaintiff’s claims for damages are time barred as Allstate did not pursue an action within six months of the City’s notice rejecting Allstate’s Claim (see Exhibit 4 to the Request for Judicial Notice) as required under Government Code section 945.6. This contention however is immaterial since, as stated above, Plaintiff has a separate right to pursue relief against the City. Therefore, the statute of limitations argument does not support a basis to strike Plaintiff’s claims for damages.

Accordingly, the motion to strike Plaintiff’s claim for damages for “loss of use of property” and “property damage” is DENIED.

Exhibit B to the FAC

The City’s motion to strike Plaintiff’s allegation which states “which claim was denied and is attached, Exhibit B” (see FAC at p. 4, MV-2(f)) as well as Exhibit B to the FAC is unopposed and GRANTED WITHOUT LEAVE TO AMEND.

The Court will prepare the Order.