LaBadie v. State of California

Opinion

SILVER, J.

*

This action arises out of the Mediterranean fruit fly eradication program and raises an issue similar to that decided by this court in

Farmers Ins. Exchange

v.

State of California

(1985) 175 Cal.App.3d 494 [221 Cal.Rptr. 225]. Plaintiff appeals after the trial court sustained without

[1368]

leave to amend defendant’s demurrer to her third amended complaint. For the reasons stated below, we will affirm the judgment.

Although plaintiff takes her appeal from a nonappealable order sustaining a demurrer without leave to amend, the parties have treated that order as a final judgment for the purposes of appeal, and the matter is fully briefed. In the interest of justice, we will deem the trial court’s order to incorporate a judgment of dismissal and treat the notice of appeal as applying to the judgment.

(Farmers, supra,

175 Cal.App.3d 494, 499.)

Our review of an order sustaining a demurrer without leave to amend is limited to the allegations of the complaint, which are presumed true, and matters that are properly the subject of judicial notice.

(Teresi

v.

State of California

(1986) 180 Cal.App.3d 239, 242 [225 Cal.Rptr. 517].)

Plaintiff’s third amended complaint alleged one cause of action against the state for negligent misrepresentation. Plaintiff alleged that on July 14 and 15, 1981, the state represented that malathion spraying would be completed in the area where she resided no later than the morning of July 15, 1981. She left the area during this period because of her abnormal sensitivity to malathion. She states that on her return she called the state’s telephone information service and was told there would be no further spraying in her area. Notwithstanding these representations, the state continued spraying on the evening of July 15 th and 16th and, as a result, plaintiff suffered physical injuries. She claims the state failed to take adequate measures to correct its earlier representation and further, that the state specifically misrepresented to her that the spraying had ended when she called the medfly telephone information service on July 15th.