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1 I. HOOSHIE BROOMAND (SBN: 210206)
DANNY A. BARAK (SBN: 252066)
2 KRISTIN A. BLOCHER (SBN: 283730) 10/30/2020
GORDON REES SCULLY MANSUKHANI, LLP
3 3 Parkcenter Drive, Suite 200
Sacramento, CA 95825
4 Telephone: (916) 565-2900
Facsimile: (916) 920-4402
5 hbroomand@grsm.com
dbarak@grsm.com
6 kblocher@grsm.com
7 Attorneys for Defendant/Cross-Complainant
CERES ENVIRONMENTAL SERVICES, INC. WHICH WILL DO BUSINESS IN
8 CALIFORNIA AS ENVIRONMENTAL & DEMOLITION SERVICES GROUP, erroneously
sued as CERES ENVIRONMENTAL SERVICES, INC., d/b/a Environmental and Demolition
9 Services Group; and Defendant STATE OF CALIFORNIA, BY AND THROUGH THE
DEPARTMENT OF RESOURCES RECYCLING AND RECOVERY
10
11 SUPERIOR COURT OF CALIFORNIA
Gordon Rees Scully Mansukhani, LLP
3 Parkcenter Drive, Suite 200
12 COUNTY OF BUTTE
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13 RICHARD VARGAS, an individual, ) CASE NO. 20CV01591
)
Sacramento, CA
14 Plaintiff, ) Assigned for all Purposes to:
) Judge Robert A. Glusman
15 vs. )
) MEMORANDUM OF POINTS AND
16 CERES ENVIRONMENTAL SERVICES, AUTHORITIES IN SUPPORT OF
)
INC., d/b/a Environmental and Demolition DEMURRER TO COMPLAINT
17 Services Group, a Minnesota corporation; )
THE STATE OF CALIFORNIA ) Date: December 2, 2020
18 DEPARTMENT OF RESOURCES, ) Time: 9:00 a.m.
RECYCLING AND RECOVERY, aka ) Dept.: TBA
19 (“CALRECYCLE”); and DOES 1 through 10, )
inclusive, )
20 ) Complaint filed: August 11, 2020
Defendants. )
21 )
)
22 AND ALL RELATED CROSS-ACTIONS. )
)
23
24
25 I. INTRODUCTION
26 As set forth in greater detail herein, Plaintiff’s claims show that the current action is
27 barred by the protections afforded governmental agencies and the State of California under the
28 Emergency Services Act codified in Government Code section 8625 et seq. and Soto v. State of
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Memorandum of Points and Authorities in Support of Demurrer to Complaint
1 California (1997) 56 Cal. App. 4th 196. Further, Plaintiff has failed to plead and prove that it
2 met the obligations set forth under the Government Tort Claims Act. (Gov’t Code Section 810 et
3 seq.)
4 Defendant State of California, by and through the Department of Resources Recycling
5 and Recovery (“CalRecycle” or “Defendant”) has met and conferred with Plaintiff’s Counsel in
6 an effort to resolve the Governmental protection subjecting the Complaint to demurrer, as
7 elaborated herein. (Declaration of I. Hooshie Broomand in Support of Defendant CalRecycle’s
8 Demurrer to Complaint (“Broomand Decl.”) at ⁋ 4.) On October 27, 2020, Counsel for Plaintiff
9 stated she remained unconvinced by Defendant’s arguments, and would await the demurrer. (Id.)
10 II. UNDERLYING FACTS AND PROCEDURAL BACKGROUND
11 This matter involves the Camp Fires that devastated Butte County and surrounding areas
Gordon Rees Scully Mansukhani, LLP
3 Parkcenter Drive, Suite 200
12 in November 2018 and the cleanup that resulted therefrom. (Complaint ¶1) On November 8,
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13 2018 the Governor of the State of California issued a State of Emergency related to the Camp
Sacramento, CA
14 Fires and subsequent cleanup. (Broomand Decl. at ¶ 3; Request for Judicial Notice, (“RJN”) No.
15 1.) According to the Complaint, Plaintiff alleges that CalRecycle lead the cleanup effort.
16 (Complaint at ¶ 1.) Plaintiff further alleges that CalRecycle entered into a series of contracts to
17 remove “more than 3.66 million tons of ash, debris, metal, concrete, and contaminated soil…”
18 and that as part of that project, Plaintiff alleges CalRecycle hired Ceres to remove debris from
19 the unincorporated area outside of Paradise. (Id.) Plaintiff sets forth in his Complaint that Ceres
20 hired subcontractors for the project, including Garlow Transport (formerly Allied Trucking) who
21 employed Plaintiff as a truck driver. (Id. at ¶ 2. Plaintiff claims he was injured while working in
22 the course and scope of his work on the project. (Comp. ¶ 2-4).
23 Plaintiff’s Complaint fails as a matter of law given the protections afforded to defendant
24 CalRecycle. Plaintiff alleges four separate causes of action against CalRecycle including: (1)
25 Negligence; (2) Breach of Mandatory Duty under Government Code section 815.6; (3)
26 Dangerous Condition of Public Property under Government Code section 835, and (4)
27 Independent Contractor Liability under Government Code section 815.4.
28 ///
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Memorandum of Points and Authorities in Support of Demurrer to Complaint
1 III. LEGAL ARGUMENT
2 A. A Legally Deficient Pleading or Cause of Action is Subject to Attack by
Demurrer.
3
4 Section 430.10 of the California Code of Civil Procedure states in pertinent part:
5 “The party against whom a complaint . . . has been filed may
object by Demurrer . . . to the pleading on any one of the following
6 grounds: . . . (e) The pleading does not state facts sufficient to
constitute a cause of action.”
7
8 California Code of Civil Procedure § 430.50 provides that a Demurrer to a Complaint
9 may be taken to the whole Complaint of to any causes of action stated therein. (See, also, Skiba
10 v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364; California Rules of Court §
11 3.1320(a).) It is well settled that a plaintiff must set forth sufficient specific facts in a Complaint
Gordon Rees Scully Mansukhani, LLP
so defendants may plead intelligently and responsively to the pleading without having to guess or
3 Parkcenter Drive, Suite 200
12
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13 speculate as to the items of material or essential facts. (Ankeny v. Lockheed Missile & Space
Sacramento, CA
14 Company (1979) 88 Cal.App.3d 531, 537.) In addition, in examining a complaint for its legal
15 sufficiency to withstand a demurrer, a demurrer admits all material and issuable facts properly
16 pleaded, however; it does not admit contentions, deductions or conclusions of fact or law alleged
17 therein. (Gruenberg v. Aetna Insurance Co. (1973) 9 Cal.3d 566, 572.) Finally, it is well settled
18 that leave to amend a Complaint should be denied where facts are not in dispute, but no liability
19 exists under the substantive law. (Lawrence v. Bank of Am., (1985) 163 Cal.App.3d 431, 436;
20 Schonfeldt v. Cal. (1998) 61 Cal.App.4th 1462, 1465.)
21 Here, as explained in further detail below, Plaintiff’s Complaint fails as Plaintiff failed to
22 comply with the presentation requirement of the Tort Claims Act, which subjects the entire
23 Complaint to demurrer. Additionally, Defendant’s actions are immune from suit under the
24 California Emergency Services Act.
25 B. The Demurrer Must Be Sustained as Plaintiff Fails to Plead Compliance with
the Tort Claims Act.
26
27 Public entities in California are not liable for tortious injury unless liability is imposed by
28 statute. (Gov. Code § 815.) Though “sovereign immunity” is the rule, government liability will
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Memorandum of Points and Authorities in Support of Demurrer to Complaint
1 attach in limited exceptions specifically set for by statute, known as the Government Tort Claims
2 Act. (Id. at § 810 et seq.) Claims concerning personal injury, wrongful death, damage to personal
3 property, or damage to crops must be presented to the public entity within six (6) months of the
4 accrual of the claim. (Gov. Code § 911.2.) Presentation of a claim to the government entity is a
5 condition precedent before a Plaintiff can maintain a cause of action against that body. The
6 “failure to allege facts demonstrating or excusing compliance with the claim presentation
7 requirement subjects a claim against a public entity to a demurrer for failure to state a cause of
8 action.” (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)
9 Here, Plaintiff does not plead any facts to show compliance with the claims presentation
10 requirement of the Tort Claims Act. (See Complaint generally.) Defendant is aware of no other
11 facts to suggest that Plaintiff filed a tort claim with the appropriate, or any, government agency.
Gordon Rees Scully Mansukhani, LLP
3 Parkcenter Drive, Suite 200
12 As such, this demurrer to the entire Complaint should be sustained.
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13 C. Defendant is Immune from Liability Under the California Emergency
Services Act.
Sacramento, CA
14
15 California has instituted broad protections of the State and its subdivisions under the
16 California Emergency Services Act, codified in Government Code §§ 8625 et seq. Most relevant
17 in this matter, Government Code § 8655 states:
18 The state or its political subdivisions shall not be liable for any claim based upon the
exercise or performance, or the failure to exercise or perform, a discretionary function
19 or duty on the part of a state or local agency or any employee of the state or its political
subdivisions in carrying out the provisions of this chapter.
20
21 The purpose of the statute is obvious. In those cases where the state must take the steps necessary
22 to quell an emergency, it must be able to act with speed and confidence without fear of incurring
23 tort liability.” (Farmers Ins. Exch v. Cal., (1985) 175 Cal.App.3d 494, 505.) The Code section
24 and the protections have been found by the Courts in California to be broad and sweeping in
25 nature. (See, e.g. Soto v. State of California (1997) 56 Cal. App. 4th 196; Johnson v. State of
26 California (1968) 69 Cal.2d 782; Farmers Ins. Exch v. Cal., (1985) 175 Cal.App.3d 494, 505.)
27 Here, on November 8, 2018, the Governor of the State of California issued a State of
28 Emergency related to the Camp Fires and subsequent cleanup. (Broomand Decl. ⁋ 3.) As
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Memorandum of Points and Authorities in Support of Demurrer to Complaint
1 alleged in the Complaint, CalRecycle lead the clean-up effort. (Complaint at ⁋ 1.) Plaintiff
2 worked as a truck driver for a subcontractor hired under CalRecycle. (Id. at ⁋ 2.) Plaintiff’s work
3 that resulted in his alleged injury was part of the clean-up effort necessitated by the Camp Fire
4 and for which an Emergency Order was issued. Therefore, CelRecycle is immune from liability
5 under the Emergency Services Act.
6 1. Defendant’s Actions Were Discretionary and Therefore Immune
Under Government Code section 8566.
7
8 The plain words of Government Code § 8566 extend immunity to the performance or
9 failure to perform a discretionary function. (Soto v. Cal. (1997) 56 Cal.App.4th 196, 201-202.)
10 “The immunity granted under [that statute] is significantly broader than that provided in
11 Government Code section 820.2, and is specifically extended to encompass not only the
Gordon Rees Scully Mansukhani, LLP
3 Parkcenter Drive, Suite 200
12 ‘discretionary’ act but also the ‘performance of’ or ‘failure to perform’ that act.” (LaBadie v.
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13 State of California (1989) 208 Cal.App.3d 1366, 1369.)
Sacramento, CA
14 The Court addressed the distinction between discretionary acts and ministerial acts in
15 Farmers Ins. Exch v. Cal., (1985) 175 Cal.App.3d 494. In that case, the State declared a state of
16 emergency and instituted a medfly eradication program. Plaintiffs alleged the State was negligent
17 in the formulation and spraying of an insecticide, malathion, that the State knew or should have
18 known would cause damage to paint on vehicles. (Id. at 504.) The Court sustained the State’s
19 demurrer, distinguishing discretionary acts from ministerial acts that take place on the
20 operational level. (Id. at 505.) The Court concluded as a matter of law that the spraying of
21 malathion, which was the center of the plaintiff’s negligence claim, was carried out as a
22 discretionary function for which the State had absolute immunity from liability under
23 Government Code section 8655. (Id.)
24 The Court in LaBadie v. State of California, supra, likewise upheld the sustaining of the
25 State’s demurrer in a matter also involving the medfly spraying program. (208 Cal.App.3d at
26 1369.) There, due to mechanical difficulties, spraying of the insecticide could not be completed
27 on the original schedule. A decision was made to continue to spray; whether there was time to
28 fully inform the public was a policy-level decision. (Id.) Therefore, as in Farmers Ins. Exch v.
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Memorandum of Points and Authorities in Support of Demurrer to Complaint
1 Cal., the Court had no difficulty in concluding that the acts complained of were in the exercise or
2 performance of, or the failure to perform, a discretionary function and were part of the “myriad
3 decisions regarding the implementation of the program,” for which there is governmental
4 immunity pursuant to Government Code section 8655. (Id.; citing Farmers Ins. Exch v. Cal.,
5 supra, 175 Cal.App.3d at 505)
6 Similarly, here, the activities that are the subject of Plaintiff’s claims were carried out in a
7 discretionary function for which CalRecycle has absolute immunity. In the wake of a devastating
8 wildfire and under an Emergency Order (Broomand Decl. ⁋ 3) CalRecycle entered into several
9 contracts with subcontractors to perform specific aspects of the Camp Fire clean-up. (Complaint
10 ⁋ 1.) Plaintiff was employed by and performed work for one of the subcontractors, allegedly
11 resulting in his injuries. (Id. at ⁋⁋ 2-3.)
Gordon Rees Scully Mansukhani, LLP
3 Parkcenter Drive, Suite 200
12 IV. CONCLUSION
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13 Based on the foregoing, Defendant respectfully requests that the Court sustain the
Sacramento, CA
14 demurrer in its entirety without leave to amend.
15
16 Dated: October 27, 2020 GORDON REES
SCULLY MANSUKHANI, LLP
17
18 By:
I. Hooshie Broomand
19 Danny A. Barak
Kristin A. Blocher
20 Attorneys for Defendant/Cross-
Complainant CERES
21 ENVIRONMENTAL SERVICES,
INC. WHICH WILL DO
22 BUSINESS IN CALIFORNIA AS
ENVIRONMENTAL &
23 DEMOLITION SERVICES
GROUP, erroneously sued as
24 CERES ENVIRONMENTAL
SERVICES, INC., d/b/a
25 Environmental and Demolition
Services Group; and Defendant
26 STATE OF CALIFORNIA, BY
AND THROUGH THE
27 DEPARTMENT OF RESOURCES
RECYCLING AND RECOVERY
28
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Memorandum of Points and Authorities in Support of Demurrer to Complaint
1 Re: Richard Vargas v. Ceres Environmental Services, Inc., et al.
Butte County Superior Court Case No. 20CV01591
2
PROOF OF SERVICE
3
I am a citizen of the United States. My business address is 3 Parkcenter Drive, Suite 200,
4 Sacramento, California 95825. I am employed in the City and County of Sacramento where this
service occurs. I am over the age of 18 years and not a party to the within action. I am readily
5 familiar with my employer’s normal business practice for collection and processing of
correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence
6 is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary
course of business.
7
On October 30, 2020, following ordinary business practice, I served a true copy of the
8 foregoing document(s) described as:
9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO
COMPLAINT
10
[X] ONLY BY ELECTRONIC TRANSMISSION. In compliance with California Rule of
11 Court, Emergency Rule 12 Related to COVID-19 and pursuant to notice provided on
Gordon Rees Scully Mansukhani, LLP
September 10, 2020, only by e-mailing the document(s) to the persons at the e-mail
3 Parkcenter Drive, Suite 200
12 address(es) listed.
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13 Julie L. Fieber
COTCHETT, PITRE & McCARTHY, LLP
Sacramento, CA
14 San Francisco Airport Office Center
840 Malcolm Road
15 Burlingame, CA 94010
T: (650) 697-6000; F: (650) 697-0577
16 jfieber@cpmlegal.com
Attorneys for Plaintiff
17
I declare under penalty of perjury under the laws of the State of California that the
18 foregoing is true and correct.
19 Executed on October 30, 2020, at Sacramento, California.
20
_______________________________________
21 VERONICA WHITAKER
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