Demurrer to SAC
Nathaniel Borchers v. Charles Carroll, et al., 23CV-0558
Hearing: Demurrer to SAC
Date: June 25, 2026
Nathaniel Borchers filed this personal injury and property damage action on October 2, 2023. Borchers was riding his bicycle, participating in an Ironman triathlon event on State Route 1, when he collided with Carroll, who was driving a Ford Bronco. Caroll understood that he had been waived through by Officer Patch of the California Highway Patrol.
Plaintiff filed a first amended complaint (FAC) on May 1, 2025.
The State of California, acting by and through the Department of Transportation (Caltrans) demurred to the two causes of action alleged against it in the FAC.
The Court overruled Caltrans’ demurrer but struck “Civil Code section 846” from the fourth cause of action, count two. The Court further instructed that if Plaintiff wished to strike count one from the fourth cause of action, that it could file a second amended complaint.
On December 29, 2025, Plaintiff filed a second amended complaint (SAC). Plaintiff alleges two causes of action against Caltrans in the SAC: the third cause of action for negligence under Government Code sections 815.2 (vicarious liability of public entity for act of omission of employee) and 835 (dangerous condition of public property), and the fourth cause of action for premises liability—failure to warn and dangerous condition of public property under Government Code sections 835, 835.2 and 830. Plaintiff omitted the first count for general negligence.
Caltrans now demurs to the two causes of action alleged against it in SAC.
Counsel for the parties met and conferred prior to Caltrans filing the demurrer, and Plaintiff provided a proposed third amended complaint (TAC) attempting to address Caltrans’ concerns. (Ex. 4 to Kilpatrick Decl.)
Following the meet and confer process, Caltrans filed the subject demurrer to the third cause of action in the SAC on the grounds that a general negligence claim cannot be alleged against a public entity, the third cause of action is at variance with the claim Plaintiff submitted to the Department of General Service, the third cause of action fails to state facts sufficient to allege vicarious liability, and the third cause of action fails to state facts sufficient to allege negligence on the part of Caltrans’ employees.
Caltrans also demurs to the fourth cause of action and contends that count two, failure to warn, does not specifically identify the grounds for statutory liability against Caltrans, but that Caltrans agrees with the language in the fourth cause of action in the proposed TAC, which eliminates count two.
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Plaintiff opposes the demurrer and requests leave to file the proposed TAC, which clarifies some allegations, includes additional statutory bases for their claims in the third cause of action and omits count two, willful failure to warn from the fourth cause of action, incorporating the Caltrans failure to warn into the body of the factual allegations.
Defendant Charles Scott Carroll filed a joinder in Plaintiff’s opposition, contending that the demurrer largely repeats arguments asserted in challenge to the FAC, adequately alleges statutory bases for liability against Caltrans and that the adjudication of the issues should be resolved on their merits.
I.
Legal Standard
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are subject to judicial notice. (Code Civ. Proc., § 430.30, subd. (a).)
A demurrer tests only the legal sufficiency of the pleading, and “[t]he facts alleged in the pleading are deemed to be true, however improbable they may be. [citation].” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) While the Court must accept as true all material facts properly pled, it may disregard logical inferences, contentions, or conclusions of fact or law. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1335-1336; Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) A demurrer must be overruled if the plaintiff has stated a cause of action under any possible legal theory. (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379.)
When reviewing a demurrer, the court must draw all reasonable inferences in favor of the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1239.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
A party demurring to a pleading shall not demur to any portion of an amended complaint that could have been raised by demurrer to an earlier version of the complaint, cross-complaint, or answer. (Code Civ. Proc., § 430.41, subd. (b).)
II.
Discussion
Caltrans continues to demur on the ground that a general negligence claim cannot be alleged against a public entity. That argument has already been addressed and rejected by this Court
given the alleged facts here. While the title of the third cause of action is “general negligence” Plaintiff alleges the statutory bases on which he alleges his claims. “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)
To the extent that Caltrans contends the cause of action is superfluous to the fourth cause of action, its argument is conclusory without any analysis of the allegations and without citation to any authority. Moreover, the third cause of action alleges vicarious liability under Government Code section 815.2, which the fourth cause of action does not.
Caltrans further contends that the third cause of action fails because Plaintiffs allegations fail to identify the specific Caltrans employee for whose actions Caltrans is vicariously liable. Caltrans cites Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1111-1115, which stated that “unless the employee is identified, the trier of fact will not be able to determine if the elements needed to assert vicarious liability have been proved.” (Id., at p. 1113, citing CACI 3701.) “[T]he doctrine clearly contemplates that the negligent employee whose conduct is sought to be attributed to the employer at least be specifically identified, if not joined as a defendant.” (Ibid.)
This argument could have been raised in the prior demurrer to the FAC but was not. (Code Civ. Proc., § 430.41, subd. (b).)
Moreover, the Munoz opinion arises out of a challenge to a judgment after trial and does not establish the pleading standard here.
In C.A., the California Supreme Court found in that case that “the District cite[d] no statute or decision requiring a plaintiff to specify at the pleading stage which of the defendant's employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2. To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 (C.A.), emphasis in original); see also Perez v. City of Huntington Park (1992) 7 Cal.App.4th 817, 820, cited by Plaintiff, which found that “[t]he plaintiff may be unable to identify which employee committed the wrongful act, but this is not fatal to the employer's liability, if the evidence establishes that some employee in the scope of employment committed the wrongful act.”])
In C.A., the California Supreme Court also directly addressed Munoz in footnote:
The court in Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1113, 16 Cal.Rptr.3d 521, opined that vicarious liability under section 815.2 “clearly contemplates that the negligent employee whose conduct is sought to be attributed to the employer at least be specifically identified, if not joined as a defendant” in order that the trier of fact may “determine if the elements needed to assert vicarious liability have been proved.” Munoz, however, was an appeal from a
judgment for the plaintiff after a jury trial (Munoz, at p. 1083, 16 Cal.Rptr.3d 521), not an appeal from dismissal after a demurrer as here. Whatever the merits of the quoted remarks as to a jury trial, they have no application at the pleading stage. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872, fn. 5 (C.A.).)
Caltrans does not show that the lack of allegations identifying the specific Caltrans employee means, at the pleading stage, that Plaintiff fails to state a cause of action. Nor does Caltrans otherwise analyze the allegations of the SAC or cite authority showing that the third cause of action fails to state a claim.
Finally, as to the third cause of action, Caltrans contends that the claim is at variance with the claim that Plaintiff submitted to the Department of General Services. The Court grants Caltrans’ request that it take judicial notice of the claim. (RJN Ex. 1.) Caltrans contends that nowhere in the claim does Plaintiff allege general negligence on the part of Caltrans, and that the factual circumstances stated in the claim only correspond with the fourth cause of action. Caltrans contends that “[n]owhere in Plaintiff’s claim does it state that any Caltrans employee owed a legal duty to Plaintiff, that there was a breach of said legal duty, and that said breach was the proximate cause of of [sic] the resulting injury.” (Ps & As, p. 7, ll. 23-25.) Caltrans contends that the claim is clear that it only asserts a dangerous condition of public property claim.
The third cause of action in the SAC is essentially the same as in the FAC, and again, the Court notes that this argument could have been raised in the prior demurrer to the FAC but was not. (Code Civ. Proc., § 430.41, subd. (b).)
Moreover, reviewing the claim, the section of Plaintiff’s claim that explains why Plaintiff believes the state is responsible for the damage or injury suffered provides that Plaintiff asserts theories under Government Code sections 815.2 and 835 and alleges the same factual predicate as is alleged in the third and fourth causes of action. (RJN, Ex. 1; SAC.) The Court overrules Caltrans’ demurrer on this ground.
As to the fourth cause of action, Caltrans again argues it is not liable under Civil Code section 846. However, reference from that section was stricken by the Court pursuant to the last demurrer and that section is not alleged in the SAC.
ORDER (PROPOSED)
Caltrans’ demurrer is overruled in its entirety. Caltrans shall file and serve its answer within ten days of service of notice of this order. (Cal. Rules of Court, rule 3.1320(g), (j).) Plaintiff shall serve notice.
To the extent Plaintiff wishes to further clarify his complaint, he can file a motion for leave to amend.
4