JORGE AYALA-GARCIA, et. al. v. DAVID AGUILERA, et. al.

The main issue raised on the demurrer now before the Court is whether Plaintiff’s government claim was timely filed on August 16, 2024. (TAC, ¶41.) In this respect, the TAC includes a series of allegations seeking to invoke the delayed discovery doctrine. (TAC, ¶¶11-40.)

On January 13, 2026, City filed this demurrer and motion to strike attacking the TAC. Plaintiff opposes and City replies.

Demurrer.

A demurrer can be used only to challenge defects appearing on the face of the pleading under attack, or from judicially noticeable matters outside the pleading. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The face of the complaint includes matters shown in exhibits attached to the complaint and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) No other extrinsic evidence can be considered. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded, i.e., ultimate facts alleged, but not contentions, deductions, or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591; Adelman v. Associated Int’l. Ins. Co. (2001) 90 Cal.App.4th 352, 359.) Facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d. 593, 604.) The plaintiff’s ability to prove the allegations is of no concern in ruling on a demurrer. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d. 197, 213-214.) The complaint will be construed liberally. (Code Civ. Proc., §452.)

Motion to strike.

Code of Civil Procedure section 436, subdivision (a) states matters which are “irrelevant, false or improper” are subject to a motion to strike. “Irrelevant” means any immaterial allegation in the complaint. Code of Civil Procedure section 431.10, subdivision (b) defines an immaterial allegation as any of the following:

(1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

Additionally, all or part of a pleading not drawn or filed in conformity with the laws of this state, a court rule, or order of the court may be stricken. (Code of Civ. Proc., §436, subd. (b).)

Similar to a demurrer, the grounds to strike shall appear either on the face of the challenged pleading or from matters judicially noticed. (Code of Civ. Proc., §437.) Additionally, the court reads the allegations as a whole, with all parts in their context, and assumes their truth. (Spielholz v. Superior Court (2001) 86 Cal.App.4th 1366, 1371; Clauson v. Superior Court (1989) 67 Cal.App.4th 1253, 1255.)

Analysis – Demurrer:

Government claims requirement.

Before filing a complaint “for money or damages” against a public entity or employee based on a personal injury, a claim first must be presented to the entity and the entity must reject it. (Gov. Code, §§911.2, 945.4.)

A cause of action that is subject to the statutory claim procedure must allege either that the plaintiff complied with claims presentation requirements, or that a recognized exception or excuse for noncompliance exists. If the plaintiff fails to include the necessary allegations, the complaint is subject to attack by demurrer. (State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.) It is Plaintiffs’ burden to “clearly and unambiguously set forth all the facts necessary to show [they] can cure the statute of limitations defect.” (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1485.) Plaintiffs thus have the burden of pleading and proving delayed discovery of a cause of action. (Applied Med. Corp. v. Thomas (2017) 10 Cal.App.5th 927, 940.)

In order to rely on the discovery rule for delayed accrual of a cause of action, “[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” [Citation.] In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to “show diligence”; “conclusory allegations will not withstand demurrer.”

(Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 (emphasis added), quoting McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, abrogated by statute on other grounds).

To raise the issue of delayed discovery, a complaint must allege with particularity when the cause of action was discovered, the circumstances of the discovery, and that the claimant’s failure to discover the cause of action earlier was “reasonable, justifiable and not a result of plaintiff’s failure to investigate or to act.” (Dujardin v. Ventura County Gen. Hosp. (1977) 69 Cal.App.3d 350, 356.) Conclusory allegations will not withstand demurrer. (Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 638.).

In order to plead timely claims presentation based on the delayed discovery rule, Plaintiffs “must plead that, despite diligent investigation of the circumstances of the injury, [they] could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.” (Fox, supra, 35 Cal.4th at pp. 808-809 (emphasis added).)

Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light. In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.

(Fox, supra, 35 Cal.4th at pp. 808-809 (emphasis added).)

As indicated above, Plaintiffs allege the accident occurred on February 28, 2023, and Decedent died on March 3, 2023. (TAC, ¶¶48-49.) A government claim relating to a cause of action for death or injury must be presented not later than six months after accrual of the cause of action. (Gov. Code, §911.2, subd. (a).) However, Plaintiff did not file their government claim with City until August 16, 2024—over a full year after the accident. (TAC, ¶41.) Therefore, the question turns on when the claim accrued.

City first argues because the claim was filed more than a full year after the accident, Plaintiffs were required to apply with City for leave to present a late claim within one year of accrual of the cause of action under Government Code section 911.4. City then contends if that application was denied, Plaintiffs were required to petition the Superior Court for relief under Government Code section 946.6. However, this argument presupposes the accrual date for the claim was the date of the accident.

As discussed more fully below, Plaintiffs allege the accrual date was actually August 13, 2024—the date they received the traffic collision report (TCR) for the accident. Should the Court determine that the accrual date was the date of the accident, then Plaintiffs’ claim was presented to the City too late under any analysis—i.e., it would not have been saved by an application to submit a late claim. On the other hand, if the Court determines the accrual date was August 13, 2024, as Plaintiffs advocate, then the claim was presented to City only three days later and would be deemed timely.

Therefore, City’s argument that Plaintiffs should have filed an application to file a late claim under Government Code section 911.4 is not determinative here.

The Court has sustained three demurrers to prior versions of the complaint on grounds that Plaintiff did not adequately plead details sufficient to invoke delayed discovery. Plaintiffs now seek to remedy those prior defects with allegations found in paragraphs 11-40 of the TAC, especially paragraphs 16-40.

Plaintiffs allege due to the hidden condition constituting a dangerous condition created by the City, the TCR was the only reasonable way for Plaintiffs to determine there was a hidden defect, namely that the speed limit sign was an incorrect and unsafe speed limit contrary to what was intended to be the speed limit by the civil engineers and survey as indicated by the TCR. There was no way to be alerted to this by physical inspection of the area of impact. Plaintiffs attempted to get the TCR many times within the first six (6) months of the incident without having knowledge (actual or constructive) of potential government negligence or dangerous condition.

Plaintiffs would later find out, through continuing efforts well past the six months, that technical difficulties of the San Bernardino Sheriff’s Department was the reason the TCR was never completed and made available to Plaintiffs. (TAC, ¶¶16-19.)

Bearing in mind that the six month period following the accident ended on August 28, 2023, Plaintiffs allege in or about early May 2023, Plaintiff Garcia attempted to obtain the TCR by contacting the Sheriff’s Department and was informed it was not ready. In or about early June 2023, Garcia contacted her (now former) counsel to obtain information and, upon information and belief, counsel requested the TCR and followed-up. In late June 2023 and again in early July 2023, Garcia again directly contacted the Sheriff’s Department was informed the TCR was not ready.

On information and belief, counsel followedup on August 7, 2023 and was told the report was not ready or generated. Prior counsel attempted to obtain the TCR numerous additional times between August 2023 and February 2024. In February 2024 Decedent’s cousin called twice and was told the TCR was not ready. In March 2024 Decedent’s sister Jocelyn Garcia (Jocelyn) called and was told the Department had been “hacked” and the file was missing. On March 5, 2024, Plaintiffs went in person to the Adelanto Sheriff’s Station and were told the file had been deleted, the office was closed, and no one was available to assist further. (TAC, ¶¶20-27.)

Plaintiffs further allege on March 23, 2024, Plaintiffs retained current counsel. On or about April 17, 2024, new counsel contacted the Sheriff’s Department and was informed a system hack occurred in 2023 but the TCR should not have been affected. Significant delays in generating the reports were noted. The TCR was confirmed not to have been ready or generated within 6 months of the incident or by April 17, 2024. In early May 2024, Jocelyn contacted the Sheriff’s Department and was promised a return call which was never received. At the end of May 2024, Jocelyn spoke with Deputy Morales who informed her a signature from another officer was required to verify the file. In early June 2024 Jocelyn was directed by the Sheriff’s Department to the Hesperia Police Department. In mid-June 2024 Jocelyn

visited the Hesperia Police Department in person and referred Plaintiff to the “San Bernardino Adelanto Sheriff’s Department.” On July 8, 2024, Plaintiff’s counsel followed-up with the Sheriff’s Department via email and was directed to Deputy Morales. On July 9, 2024, Traffic Sergeant Brendan Motley responded to Plaintiff’s counsel and advised the TCR had not yet been completed and updated due to delays from the 2023 system hack. On or about July 18, 2024, the Sheriff’s Department informed Plaintiffs’ counsel the TCR was pending and requested an additional 14 days to produce it. On August 13, 2024, Plaintiff finally received the TCR. (TAC, ¶¶28-38.)

City argues the diligence must have been exercised within the six month period after the February 28, 2023 accident. City further argues only a handful of attempts during that period were alleged, and criticizes allegations of former counsel’s efforts to the extent they are alleged “on information and belief.” City argues Plaintiff should have expressly stated how that request was made, who it was made to, who former counsel followed-up with and how, etc. City further argues all efforts made after the six month period expired on August 28, 2023 are irrelevant and complains allegations of counsel’s repeated efforts to obtain the report are conclusory.

The Court finds that the allegations are now adequate to assert delayed discovery at the pleading stage. Plaintiffs allege they and others on their behalf continually sought to obtain the report from soon after the accident until it was finally made available in August 2024. Further, Plaintiffs allege they were told on July 18, 2024 that the TCR was still not ready, meaning Plaintiffs could not have obtained the report any sooner. As Plaintiffs allege they only became aware of the speed limit signage discrepancy when they finally obtained the TCR on August 13, 2024, they adequately allege delayed discovery at the pleading stage.

Causal connection.

The elements of dangerous condition of public property are codified in Government Code section 835 as follows: (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

To state a cause of action under the Government Claims Act based premised upon a dangerous condition of public property, the complaint must show that the requirements of Section 835 are satisfied. Because the plaintiff is necessarily seeking to establish a statutory cause of action, general allegations are regarded as inadequate; the complaint should be sufficiently detailed and specific to support an inference that each statutory element of liability is satisfied. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

A plaintiff should set out in the complaint a detailed description and specific location of the allegedly dangerous condition and how the injury happened; such allegations will ordinarily satisfy the first three aspects of the pleading burden, or at least survive a preliminary testing of them by demurrer. As stated in Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439:

The limited and statutory nature of governmental liability mandates that claims against public entities be specifically pleaded. . . . Accordingly, a claim alleging a dangerous condition may not rely on generalized allegations . . . but must specify in what manner the condition constituted a dangerous condition.

(Brenner, supra, 113 Cal.App.4th at p. 439.)

City argues Plaintiffs fail to allege the speed limit signage issue was the proximate cause of the injury. Plaintiffs allege in paragraph 46 of the TAC: “Had the correct 30 mph speed limit been posted, it is more probable than not that Defendant DAVID AGUILERA would have approached the intersection at a significantly reduced speed, allowing more time to perceive and react to decedent JESUS DAVID GARCIA, thereby avoiding or significantly reducing the severity of the crash.” City argues the “more probable” language is inadequate to plead proximate cause, contending the language is overly speculative. City further argues other allegations only state that the signage issue would result in speeding generally, not that it did so here.

The Court previously found similar allegations insufficient when addressing the prior second amended complaint because it failed to specify how fast Aguilera was driving at the time of the accident. “For example, if Aguilera was driving less than 30MPH, it would not have mattered whether the posted speed was 30MPH or 40MPH...” (See 11/24/25 Tentative Ruling, p. 6.) However, in paragraph 63 of the TAC Plaintiffs now allege on information and belief that Aguilera relied on the 40 mph speed limit and was traveling faster than that at the time of the accident. This is sufficient to adequately claim the signage issue caused or contributed to the accident.

Duplicative.

Finally, the City argues Plaintiffs’ first and second causes of action for dangerous condition and failure to warn of dangerous condition are duplicative. This argument has been raised and rejected in the prior demurrers and the analysis is unchanged.

There is a split of authority regarding whether a demurrer may be properly sustained on the ground that a cause of action is duplicative. (Compare Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [demurrer properly sustained to cause of action for “breach of governing documents” on ground that cause of action was duplicative of cause of action for breach of fiduciary duty], with Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890, [that a cause of action is duplicative “is not a ground on which a demurrer may be sustained”].)

At this pleading stage there is no compelling argument for dismissal of Plaintiffs’ first or second causes of action simply because they may be duplicative of each other.

Analysis – Motion to Strike:

City moves to strike paragraphs 11, 17, 65, 68, 77, and 93 of Plaintiffs’ TAC on the grounds that they involve negligence allegations. City argues that, under the Government Claims Act, it cannot be sued for common law torts such as negligence. This argument was raised and rejected in the prior motions to strike addressing prior pleadings, although when addressed previously the motions were moot in light of the decisions sustaining the prior demurrers.

The negligence of a City employee can be relevant to the dangerous condition claim as it can give rise to liability. (See Gov. Code, §835.) While the allegations do at times appear to suggest that City was directly

negligent, that language is generally qualified by the complaint as a whole and other allegations indicating the City’s agents were negligent. (See, e.g., TAC at ¶85 [referencing the negligence of the City’s agents].)

TENTATIVE RULING

The Court overrules the demurrer and denies the motion to strike as to the Third Amended Complaint for Damages. City shall have 30 days to file and serve its Answer.