Hearing Demurrer

Cal. Super. - 6th Dist.November 23, 2016

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER ~ Edita Donnelly et al vs State of California et al Hearing Start Time: 9:00 AM 16CV303137 Hearing Type: Hearing: Demurrer Date of Hearing: 08/10/2017 Comments: Heard By: Zayner, Theodore C Location: Department 6 Courtroom Reporter: - No Record Transcribed Courtroom Clerk: Maggie Castellon Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No appearance. Tentative ruling not contested. Tentative ruling adopted. See below. Currently before the Court is the demurrer by defendant and cross-defendant State of California ( State ) to the first amended cross-complaint ( FACC ) of defendant and cross-complainant County of Santa Clara ( County ). Factual and Procedural Background This action arises out of an accident that occurred on Page Mill Road near the Interstate 280 interchange and Christopher Lane. (Complaint, 2.) On November 3, 2015, at approximately 6:50 am, decedent Jeffrey Donnelly ( Decedent ) was riding his bicycle on westbound Page Mill Road. (Ibid.) Defendant Nelson L. Stafford, who was driving westbound on Page Mill Road, violated [Decedent s] right of way and rear-ended [his] bicycle, striking and killing [him]. (Id., at 3.) At the time of the accident, the roadway was in a dangerous condition as it was negligently designed and had inadequate and defective markings and signs. (Id., at 29-30.) Based on the foregoing, plaintiffs Edita Donnelly, Dana Donnelly, Conner Donnelly, and Eva Donnelly (collectively, Plaintiffs ) filed a complaint against State, County, Town of Los Altos Hills, Nelson L. Stafford, and Julianne L. Stafford, alleging causes of action for (1) negligence and (2) dangerous condition of public property. Thereafter, on January 20, 2017, County filed a cross-complaint against State and Town of Los Altos Hills, alleging causes of action for (1) contractual indemnity; (2) rescission; (3) implied indemnity; (4) comparative indemnity; (5) declaratory relief; (6) equitable indemnity; and (7) contribution. On March 22, 2017, State filed a demurrer to the second cause of action of the cross-complaint on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action. The Court overruled the demurrer on the ground of uncertainty and sustained, with leave to amend, the demurrer on the ground of failure to allege facts sufficient to constitute a cause of action. Printed 8/10/2017 08/10/2017Hearmg Demurrer - 16CV303137 Page 1 of5 ~ SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER On May 18, 2017, County filed the operative FACC against State and Town of Los Altos Hills. As is relevant here, County alleges that the portion of the roadway where the accident occurred is owned, maintained, and controlled by State through the California Department of Transportation (Caltrans ). (FACC, 2, 9-12, 16-20.) County and State entered into a written Freeway Maintenance Agreement on March 10, 1970, which obligates County to maintain a portion of the subject roadway. (Id., at 23-27, 33.) However, the accident occurred on a portion of the roadway that is not subject to the Freeway Maintenance Agreement. (Ibid.) The configuration of Interstate 280, on-ramps, off-ramps, and/or Page Mill Road have materially changed since March 10, 1970, when County and State executed the Freeway Maintenance Agreement. (FACC, 43.) Because the [County] maintenance area as defined [by the Freeway Maintenance Agreement] no longer corresponds with the configuration of Page Mill Road in the [right of way], [County s] performance under the [Freeway Maintenance Agreement] requires excessive and unreasonable expense of public funds and is therefore impossible. (Id. at 44.) County alleges that it may rescind the [Freeway Maintenance Agreement] based on upon failure of consideration as recognized by the Doctrine of Impossibility. (Id. at 45.) County further alleges that it was first placed on notice that it could face substantial exposure and incur significant attorney s fees arising from gratuitous maintenance of portions of Page Mill Road in the [right of way] that is owned and controlled by [State] when it received the government claim form that preceded this lawsuit. (Id. at 46.) Finally, County alleges that the Freeway Maintenance Agreement is prejudicial to the public interest of its citizens and taxpayers such it may unilaterally rescind the contract. (Id. at 47-48.) Based on these allegations, County pleads causes of action for (1) contractual indemnity; (2) rescission; (3) implied indemnity; (4) comparative indemnity; (5) declaratory relief; (6) equitable indemnity; and (7) contribution. On June 22, 2017, State filed the instant demurrer to the second cause of action of the FACC. County filed papers in opposition to the demurrer on July 28, 2017. State filed a reply on August 3, 2017. Discussion State demurs to the second cause of action for rescission on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., 430.10, subds. (e) and (f).) I. Legal Standard The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, [a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary function of a demurrer to test the truth of the [] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant s conduct. [ ] Thus, [] the facts alleged in the pleading are deemed to be true, however improbable they may be. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) However, while [a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.) Printed 8/10/2017 08/10/2017Hearmg Demurrer - 16CV303137 Page 2 of5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER ||. Successive Demurrers Preliminarily, County contends that the instant demurrer is effectively an improper motion for reconsideration because State previously demurred to the second cause of action on the grounds of uncertainty and failure to allege sufficient facts to state a claim. In this respect, County relies on a case from the Second District, Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97 (Bennett), in which the Court of Appeal found that when a trial court overrules a demurrer to a particular cause of action, the court is foreclosed from rendering a new determination on the viability of those claims absent a timely motion for reconsideration. County s argument is not well-taken for several reasons. First, both the Fourth District and Sixth District have adopted the opposite position, reasoning that the interests of all parties are advanced by avoiding a trial and reversal for defects in pleadings. (See Pacific State Enterprises, Inc. v. City of Coachella (1993) 13 Cal.App.4th 1414, 1420; Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 389, fn. 3; Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1036; Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228 Cal.App.4th 1200, 1211 [stating filing an amended complaint opened the door to a demurrer to the entire pleading, including causes of action that previously survived demurrer].) Given that the majority of appellate districts, including the Sixth District, decline to follow the reasoning of Bennett, supra, the weight of authority supports allowing State to file successive demurrers on the same grounds. Second, the ground of failure to state facts sufficient to constitute a cause of action is a challenge to a pleading and the court s power to grant relief and, therefore, is never waived. (Code Civ. Proc., 430.80, subd. (a); see Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2016) 7:33, p. 7(|)-17, 7:34, p. 7(1)-18; see also Henry v. Associated Indemnity Corp. (1990) 217 Cal.App.3d 1405, 1413, fn. 8.) Accordingly, the Court will reach the merits of the demurrer. |||. Uncertainty With respect to the ground of uncertainty, State s memorandum of points and authorities fails to address this ground. [T]he failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809 overruled on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30.) Furthermore, [w]hen [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, the point is treated as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [ [A] point which is merely suggested by a party s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion. 1.) For the first time in reply, State argues that the second cause of action is uncertain because the allegations are implausible. This point should have been made in State s moving papers, and its attempt to raise the argument for the first time in reply is improper as County did not have the opportunity to respond to the Printed 8/10/2017 08/10/2017Hearmg Demurrer - 16CV303137 Page 3 of5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER arguments in its opposition. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [points raised for first time in a reply brief will ordinarily be disregarded because other party is deprived of the opportunity to counter the argument]; see also In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) Furthermore, the fact that the allegations may be improbable or implausible does not make the rescission claim uncertain. Accordingly, the demurrer to the second cause of action on the ground of uncertainty is OVERRULED. IV. Failure to Allege Facts Sufficient to State a Claim State argues that the second cause of action for rescission fails to state a claim because it is time-barred by the four-year statute of limitations set forth in Civil Code section 337. A court may sustain a demurrer on the ground of failure to state sufficient facts if the complaint shows on its face the statute [of limitations] bars the action. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) A demurrer is not sustainable if there is only a possibility the cause of action is time- barred; the statute of limitations defense must be clearly and affirmatively apparent from the allegations in the pleading. (Id. at pp. 1315-16.) When evaluating whether a claim is time-barred, a court must determine (1) which statute of limitations applies and (2) when the claim accrued. (Id. at p. 1316.) An action based upon the rescission of a contract in writing is subject to a four-year statute of limitations. (Code Civ. Proc., 337, subd. (3); see also Ferguson v. Yaspan (2014) 233 Cal.App.4th 676, 683.) The second cause of action is, therefore, subject to a four-year statute of limitations. With respect to accrual of the cause of action, [t]he time begins to run from the date upon which the facts that entitle the aggrieved party to rescind occurred. (Code Civ. Proc., 337, subd. (3).) State asserts that the cause of action accrued on March 10, 1970, the date that it and County entered into the Freeway Maintenance Agreement. However, as County persuasively argues, the date of accrual is not apparent from the face of the FACC. In the second cause of action, County alleges that [t]he configuration of Interstate 280, on-ramps, off-ramps, and/or Page Mill Road have materially changed since March 10, 1970, when County and State executed the Freeway Maintenance Agreement; [b]ecause the [County] maintenance area as defined [by the Freeway Maintenance Agreement] no longer corresponds with the configuration of Page Mill Road in the [right of way], [its] performance under the [Freeway Maintenance Agreement] requires excessive and unreasonable expense of public funds and is therefore impossible ; and it may rescind the [Freeway Maintenance Agreement] based on upon failure of consideration as recognized by the Doctrine of Impossibility. (Id. at 43-45.) Thus, the rescission claim, in part, is based on the alleged alterations made to the roadway. Because the dates of the changes to the roadway are not alleged in the FACC, the date of accrual of the rescission claim cannot be determined from the face of the pleading. Accordingly, the demurrer on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRU LED. - ooOoo - Printed 8/10/2017 08/10/2017Hearmg Demurrer - 16CV303137 Page 4 of5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER~ Prmied 8/10/2017 08/10/2017Hearmg Demurrer - 16CV303137 Page 5 of5