Salinas, Olivel vs. Dinuba Police Department

As to the motion to strike, Defendants seek to strike all allegations found under the first cause of action, all allegations stating Defendant City and PD entrusted, hired, supervised, trained, retained, maintained, controlled, or otherwise directly caused the subject incident, all allegations that Defendants "negligently owned, operated, maintained, entrusted and/or controlled" the subject vehicle, to the extent those allegations are asserted against Defendants City and PD as independent direct-negligence theories and all allegations "...asserting or implying that Plaintiff may pursue discovery or liability theories directed to Officer Morales's hiring, training, supervision, retention, discipline, personnel file, prior incidents, or similar employment-related issues after Defendants' course-and-scope admission."

In opposition, Plaintiff notes the declaration of Defendants' counsel constitutes extrinsic evidence beyond the four corners of the complaint and must be disregarded on demurrer. Further, that duplication is not a grounds for demurrer.

Authority and Analysis (1) Demurrer The purpose of a demurrer is to test whether a complaint "states facts sufficient to constitute a cause of action upon which relief may be based." (Young v. Gannon (2002) 97 Cal.App.4 th 209, 220. To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.)

The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if "the defendants negate any essential element of a particular cause of action." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4 th 857, 879-80) To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4 th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer. (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But "doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

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 judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) As such, the Court disregards the declaration of counsel for Defendants.

Public Entity Liability The starting point is that, except as otherwise provided by statute, "[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Gov. Code Sec. 815(a).) "[T]his section 'abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable' [Citation.]" (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)

It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.) Government tort claims must be pled with particularity. (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) They must also be grounded in statute. (Gov. Code Sec. 815; E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 512, fn. 9.)

Further, "[a]lthough the Act provides that a public employee generally is liable for an injury caused by his or her act or omission 'to the same extent as a private person' (Gov. Code, Sec. 820, subd. (a)) and that, when the act or omission of the public employee occurs in the scope of employment the public entity will be vicariously liable for the injury (Gov. Code, Sec. 815.2), the Act contains no provision similarly providing that a public entity generally is liable for its own conduct or omission to the same extent as a private person or entity.

Rather, the Act provides that a public entity is not liable for an injury '[e]xcept as otherwise provided by statute ....' (Gov. Code, Sec. 815.) Certain statutes do provide expressly for public entity liability in circumstances that are somewhat parallel to the potential liability of private individuals and entities but, as past cases have explained, '"[T]he intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances ...."' [Citation.]" (Id. at 1127-1128.)

Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, 943 summarizes the theories of recovery against a public entity as follows: "When a party is injured by a tortfeasor and seeks to affix liability on the tortfeasor's employer, the injured party ordinarily must demonstrate either (1) the employer violated a duty of care it owed to the injured party and this negligence was a proximate cause of the resulting injury (the direct liability theory), or (2) the tortfeasor-employee was liable for committing the tortious conduct that caused the injury while acting within the course and scope of his or her employment (the vicarious liability theory). [Citation.]

When the employer is a governmental agency, the statutory framework permits the injured party to pursue the vicarious liability theory in accordance with these general common law principles. [Citation.] However, the statutory framework requires, as a condition to the injured party's recovery on a direct liability theory against a governmental agency, that the injured party identify a 'specific statute declaring [the entity] to be liable, or at least creating some specific duty of care' by the agency in favor of the injured party. [Citations.]" (de Villers v.

County of San Diego (2007) 156 Cal.App.4th 238, 247-248, fn. omitted)"

In other words: "[T]he public entities' potential liability...has two sources: (1) the public entities' liability based on their own conduct and legal obligations, and (2) the public entities' liability, based on respondeat superior principles, for the misconduct of their employees that occurred in the scope of their employment." (de Villers, supra, 156 Cal.App.4th at 251-252.)

First and Second Cause of Action Here, the Court finds sufficient differences between the two causes of action, where the first adds that Defendant City "negligently owned, operated, maintained, entrusted, and/or controlled the subject vehicle" and the second lacks this contention. In any event, the first cause of action contains sufficient statutory references which allege liability against a government entity under either a direct liability theory or vicarious liability theory. As such, the Court does not find these causes of action wholly duplicative. Disregarding the extrinsic evidence presented by declaration, the Court overrules the demurrer to the first cause of action.

(2) Motion to Strike Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., Sec. 435, subd. (b).) The motion may seek to strike any "irrelevant, false or improper matter inserted in any pleading" or any part of the pleading "not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (Code Civ. Proc., Sec. 436.)

Irrelevant allegations include allegations that are not essential to the statement of a claim, allegations that are not pertinent to or supported by the claim and demands for judgment requesting relief not supported by the allegations. (Code Civ. Proc., Sec. 431.10, subds. (b), (c).) As with the demurrer, the Court may not consider extrinsic evidence on the motion to strike. Further, the Court cannot strike unidentified allegations nor allegations that may "imply" direct liability for common law negligence, negligent entrustment or other negligence theories. Further, the Court will not preemptively restrict discovery in this matter. As such, the Court denies the motion to strike.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Graham, Michael vs. CA Farms, LLC