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JEANNE SCHERER, Chief Counsel
LAUREN A. MACHADO, Deputy Chief Counsel
FILED
GINA CARDOZA, Assistant Chief Counsel
PATRICK PETERSEN, Deputy Attorney, Bar No. 232639 16 0CT-7 AIO: 44
Attorneys for California Department of Transportation CLE aK OF THE SUPERIOR SoeRr
1120N Street (MS. 57), P.O. Box 1438
Sacramento, CA 95812-1438
Telephone: (916) 654-2630
Facsimile: (916) 654-6128 The State of California is exempl from filing fees under Government Code section 6103
.
Attorneys for Defendant
CALIFORNIA DEPARTMENT OF TRANSPORTATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF STANISLAUS
10
11 DOROTHY BERNAL, DAVID BERNAL, ) Case No. 2021243
ANGELICA BERNAL, a minor, by and through }
12 her guardian ad litem, ROBERT BERNAL MEMORANDUM OF POINTS AND
} AUTHORITIES IN SUPPORT OF
13 Plaintiffs ) DEMURRER TO PLAINTIFFS’
) COMPLAINT BY DEFENDANT STATE
14 Vv. ) OF CALIFORNIA
15 FRED MENDEZ, RALPH JUAREZ, GEORGE )
REED CONSTRUCTION, INC., COUNTY OF ) DATE: November 9, 2016
16 STANISLAUS, CITY OF MODESTO, ) TIME: = 8:30 a.m.
CALIFORNIA DEPARTMENT OF DEPT: 24
17 TRANSPORTASTION, and DOES | through ) ASSIGNED FOR ALL PURPOSES TO:
100 inclusive,
18 Honorable Roger M. Beauchesnf
Defendants
19 Complaint Filed: August 9, 2016
20
21
22 INTRODUCTION
23 Defendant met and conferred with Plaintiff's via telephone to discuss the State’s Demurrer.
24 The parties agreed that it would be best to have the Court rule on the State’s Demurrer. Attached as
25 Exhibit 1, is the Declaration of Patrick Petersen in support of the Demurrer.
26 The State demurs to Plaintiffs’ Complaint on five grounds (1) the State demurs to Plaintiffs
27 First Cause of Action for a dangerous condition of public property, under C.C.P. section 430.10(e)
28 and (f) on the grounds that it is vague and uncertain insofar as it not pled with the requisite
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, TO PLAINTIFFS’
COMPLAINT BY DEFENDANT STATE OF CALIFORNIA
i?
.
specificity; (2) to Plaintiffs’ Second Cause of Action for general negligence on the grounds that it
improperly pleads general negligence against a public entity and (3) improperly pleads a mandatory
duty against the State under established case law; (4) to Paragraph 24 of the Complaint on the
grounds that public entity defendants are not liable for the acts and omissions of theiremployees;
and (5) to Paragraph 16 of the Complaint under General Allegations on the grounds that it violates
California Rule of Court section 2.112 for failing to separately state and number counts.and causes
of action. This demurrer is based on.the Notice of Hearing, the Memorandum of Points and
Authorities, the entire court file in this action and on such matters and authorities as may arise during|
oral argument.
10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
11 I
12 INTRODUCTION/STATEMENT OF FACTS
13 This is an action for personal injuries arising from an automobile versus automobile accident
14 at the intersection of Claribel Road and Coffee Road in Modesto, California. According to
15 Paragraph 14 of the Complaint, Plaintiffs stopped at a stop sign and then entered the intersection
16 where Mendez struck their vehicle and that “Mendez would fail to stop at the intersection” and
17 impacted their vehicle causing catastrophic personal injuries. (Complaint at p 4 paragraph 14)
18 Mendez’s vehicle broadsided Plaintiffs’ vehicle in the intersection: Plaintiff alleges that
19 Plaintiff sues the State and other publi¢ entities under their First Cause of Action for a
20 dangerous conditions of public property. Plaintiff alleges a plethora of roadway features and
21 characteristics of the intersection contributed to or caused the accident including but not limited to
22 being: “defectively placed , angled, designed, built , drafted, engineered, controlled, inspected,
23 modified, planned , contracted, and regulated.” (Complaint at pp. 4-5 Paragraph 23 a) Paragraphs-
24 23b-¢ also allege that the signage, pavenient lane markings and traffic controls were “improperly,
25 dangerously and defectively placed, angled, designed, built, drafted, engineered, controlled,
26 inspected, modified, planned, contracted and regulated.” Plaintiff argues that “With the proper
27 traffic control, and/or sufficient warnings, the subject accident could have been.avoided (Complaint
28 at p 7 paragraph 27).
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’
COMPLAINT BY DEFENDANT STATE OF CALIFORNIA
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Plaintiff sues all of the public entity defendants for general. negligence in their Second Cause of
Action. Plaintiffs allege that the State owed plaintiffs a mandatory duty for the signage and traffic
control based on reference to the multiple Vehicle Code section referencing State owned property.
Plaintiff rather eloquently summarizes the causation basis had to do with the features of the stop sign
facing Mendez (Complaint at p 8 paragraph 36). This is much more specific than Plaintiffs’
allegations for their dangerous condition cause of action in attempting to link the roadway to
somehow factoring in to Mendez running the stop sign and causing a T-bone collision with
Plaintiffs’ vehicle.
Within the same cause of action, Plaintiffs allege that the State “owes a mandatory duty to ,
10 place and maintain appropriate signs and signals or other traffic controls devices... pursuant to
11 Vehicle Code, sections21350, 21367, and 21370 (Complaint atpage 8 paragraph 34).
12 In the general allegations section of the Complaint. Plaintiff alleges that each Defendant is
13 responsible in some manner, either by act or omission, strict liability, negligence, breach of contract,
14 breach of express/implied warranty, negligence per se, agency, employment or otherwise... and that
15 Plaintiff's damages were legally cause by the conduct.” (Complaint at page 4 paragraph 16).
16 The State demurs to the complaint of Plaintiffs under Code of Civil Procedure section
17 430.10(c) and (f), on the grounds that
it fails to state a cause of action and is uncertain in that (1) it
18 pleads general negligence; (2) the dangerous condition of public property cause of action is not pled
19 with the requisite specificity; (3) it impermissibly pleads vicarious liability of public entities for the
20 acts of their employees; and (4) it improperly pleads a mandatory duty and (5) improperly pleads
21 miultiple causes of action in a single paragraph.
22 Il
23 “DANGEROUS CONDITION” IS NOT PLED WITH THE REQUISITE SPECIFICITY
24 The State’s liability for dangerous conditions is defined by the Government Claims Act
25 (Gov. Code §810 ef seq.) and the cases construing those statutes. Under Government Code section
26 815, a public entity may be directly liable for an injury as a result of its own conduct or omission,
27 but only as “provided by statute.” “[S]tatutory causes of action must be pleaded with particularity,
‘
28 showing every fact essential to the existence of statutory liability.” (1 Cal. Government Tort
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS”
COMPLAINT BY DEFENDANT STATE OF CALIFORNIA
re
Liability Practice (CEB 4th ed. 2007) § 8.42, p. 433-435.) The court in Lopez v. Southern Cal.
Rapid Transit Dist., (1985) 40 Cal.3d 780, 795, explained:
Ordinarily, negligence may be pleaded in general terms and the plaintiff’ need not.specify
1 the precise
act or omission alleged to constitute the breach of duty. [Citation.] However, because under the Tort
Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of
action must be pleaded with parti¢ularity is applicable. Thus, “to state a cause of action against a
public entity, every fact material to the existence of its statutory liability must be pleaded with
particularity.” [Citations.]
The Supreme Court has held that Government Code section 835 “is the principal provision
10 addressing the circumstances under which the government may be held liable for maintaining a
il dangerous condition of public property.” (Peterson v. San Francisco (1984) 36 Cal.3d 799, 809.)
12 Plaintiff must plead all of the following elements:
13 [1] the property was in a dangerous condition at the time of the injury;
[2] the injury was proximately caused by the dangerous condition,
14 [3] the dangerous condition created.a reasonably foreseeable risk of the kind of injury which
was incurred, and
15 [4] either:
(a) A.negligent or wrongful act or omission of an employee of the public entity within the
16
scope of his employment created the dangerous condition; or
17 (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
18 dangerous condition.
19 When a complaint is based on Government Code section 835, “the plaintiff must set forth
20 facts in [the] complaint Sufficiently detailed and specific to support an inference that each of the
21 statutory elements of liability is satisfied.” (Aittenhuber v. City of Redondo Beach (1983) 142
22
Cal.App.3d 1, 5.) Plaintiff, therefore, is required to plead facts supporting each element of the cause
23 of action for.dangerous condition of public property as provided in section 834 as against Caltrans.
24
A mere recitation of the statutory language, and broad allegations that the elements of dangerous
25 condition have been met does not satisfy this requirement.
26
Plaintiff's voluminous complaint devotes many pages to reciting the statutory language of the}
27
Government Code, but precious little verbiage describing the actual dangerous condition, causation,
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’
COMPLAINT BY DEFENDANT STATE OF CALIFORNIA
vn
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creation or notice. Plaintiff alleges generally that the State“negligently and carelessly” did or failed
to do many things, including designing, construction and maintenance, (Complaint, pp 4-5,
paragraph 23.) The only language which suggests what the dangerous condition might be is buried
in the complaint under the Second Cause of Action for general negligence relating to the placement
of traffic control devices and the placement of temporary stop signs to control the intersection
(Complaint at p 8, paragraph 36): The breath of the allegation in Paragraph 23 and its various
subsections are extremely broad and reference the signs, pavement and traffic control devices as
“improperly, dangerously, and defectively placed, angled, designed, built, drafted, engineered,
controlled, inspected, modified, planned, contracted and regulated.” (Complaint pp5-6, paragraph
10 23) The Complaint continues to allege that the State failed to “post warning signs, providing more
11 noticeable traffic control devices, providing maintenance, and/or other reasonable protective
12 safeguard measures. (Complaint p7, paragraph 27) How maintenance of the roadway is linked to a
13 driver failing to yield to a stop sign and striking Plaintiffs’ vehicle is another example of the nebulas
14 nature of the Complaint. When alleging “dangerous condition,” under Government Code section
15 835, facts supporting each of the elements set forth above must be pled with sufficient specificity so
16 that the State is able to understand the complaint and defend against it. There are no specific
17 roadway defects identified in the First Cause of Action for a dangerous condition, and no description
18 of how the allegedly defective roadway feature caused the-accident. The requirement of specificity is|
19 not met here, as the language alleging that the public entitiés “negligently and carelessly designed, -
20 warned ...” etc., is impermissibly vague. As a result, the State requests that its demurrer be
21 sustained with leave to amend.
22 il
23 Ti ‘HE STATE CANNOT BE HELD LIABLE FOR COMMON LAW NEGLIGENCE
24 It is well settled that California public entities are liable, if at all, only pursuant to a specific”
25 statute imposing liability. (Gov. Code § 815; Lopez v. So. Cal. Rapid Transit Dist. (1985) 40 Cal.3d
26 780, 795.) The enactment of Government Code section 815 as part of the Government Claims Act
27 (formerly Tort Claims Act) effectively abolished all common law tort liability for public entities. It
28 states that public entities are not liable for an injury “except as otherwise provided by statute.”
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’
COMPLAINT BY DEFENDANT STATE OF CALIFORNIA
on
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(Tolan v, State of California
ex rel Dept. of Transportation (1979) 100 Cal.App.3d 980, 986.) “The
intent of the act is not to expand the rights of plaintiffs in suits against governmental entities, but to
confine potential governmental liability to rigidly delineated circumstances.” (Williams v. Horvath
(1976) 16 Cal.3d 834, 838.) Thus, this case is not a generic, open-ended “negligence” action, and
plaintiff cannot recover for general negligence against Caltrans.
In addition, the Supreme Court has ruled that the general negligence principles of Civil Code
section 1714, which govern the potential liability of private property owners, do not apply to public
entities:
t
To the extent the Court of Appeal determined that the provisions of Civil Code Section 1714 may be
10 applied to extend the liability of a public entity in this setting beyond the reach of the ‘dangerous
11 condition’ provisions-of Government Code section 835, we conclude that the appellate court was.in
12 error... [T]he liability of public entities as property owners is set out specifically in Government
13 Code section 835, as part of the general scheme of the Tort Claims Act. (Zelig v. County of Los
14 Angeles (2002) 27 Cal.4th 1112, 1132.)
1S Plaintiff's Second Cause of Action entitled “Negligence” alleges that Caltrans and the other
public entity defendants negligently installed, placed the stop signs with limited visibilityto the
16 motorists. (Complaint, p.8, paragraph 36.) To the extent plaintiff is attempting to allege common
law negligence, or negligence under Civil Code section 1714, such a cause of action does not lie
17 against Caltrans. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)
18 Thus, the State’s demurrer to the general negligence allegations should be sustained without,leave to
amend, as Caltrans and the other public entity defendants cannot be held liable therefor. To the
19 extent plaintiff is attempting to allege that negligent conduct on the part of State employees created a|
dangerous condition, his pleading is impermissibly vague, as set forth more fully in Argument III
20 below.
IV
21
THE STATE CANNOT BE HELD LIABLE FOR EMPLOYEE TORTS
22 UND ER THE CIRCUMSTANCES ALLEGED IN THE COMPLAINT
23
24 Plaintiffs allege that “defendants are vicariously liable for the acts and omissions of their
25 employees.” For failing to “maintain safe premises, failing to properly train and supervise their
26 employees, failing to warn of unsafe conditions; and failing to routinely inspect the premises for
27 hazardous conditions.” (Complaint p 6, paragraph 24) However, the Complaint fails to plead facts, 1
28 sufficient to support a cause of action for negligence of any individual employee(s), or for vicarious
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’
COMPLAINT BY DEFENDANT STATE OF CALIFORNIA
a ot
liability of the State. Moreover, government employees are immune from liability under
Government Code section 840 when injury is caused by a condition of property, and the State cannot
be held vicariously liable under such circumstances.
Tort liability of public employees is governed by Government Code section 820, which
provides in relevant part: “(a) Except as otherwise provided by statute... , a public employee is
liable for injury caused by his act or omission to the same extent as a private person.” Governmental
respondeat superior liability for the torts of its employees is set forth in Government Code section
815.2, as follows:
(a) A public entity is liable for injury proximately caused by an act or omission of an employee of
10 the public entity within the scope of his employment if the act or omission would, apart from this
l1 section, have given rise to a cause of action against that employee or his personal representative.
12 (b) Except as otherwise provided by statute, a public entity is not liable for an injury
13 resulting from an act or omission of.an employee of the public entity where the
14 employee is immune from liability.
15 While section 815.2(a) allows public entity liability for injuries caused by a public employee,
16 the statute only applies where the complaint alleges facts showing that “a public employee engaged
17 in conduct within the scope of employment that would render the employee liable.” Zelig v. County
18 of Los Angeles (2002) 27 Cal.4th 1112, 1131 (emphasis added). When pleading vicarious liability
19 under section 815.2, the plaintiff must identify the particular employee whose negligence allegedly
20 injured the plaintiff, and plead facts establishing that the particular employee(s) owed a duty to the
21 plaintiff, breached it, and thus caused the injury. (See Munoz v City of Union City (2004) 120 Cal
22 App 4th 1077, 1093. See also, 1 CEB, Government Tort Liability Practice §8.53 at 453.)
23 Plaintiffs. fail to allege a factual basis for showing that any particular employee committed an
24 actionable tort, or had a duty to. plaintiff arising from a special relationship or other circumstance.
25 Plaintiff fails to state a cause of action insofar as no underlying tort of any individual employee(s) is
26 alleged which could form the basis for vicarious liability of the State under section 815.2.
27 Because the allegations of employee negligence are incorporated in the Dangerous Condition Cause
28 of Action, it is presumed that the alleged tortious acts are those which created the dangerous
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MEMORANDUM OF POINTS AND AUTHORITIES-IN SUPPORT OF DEMURRER TO PLAINTIFFS’
COMPLAINT BY DEFENDANT STATE OF CALIFORNIA
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condition. As such, Caltrans.employees are immune from liability under Government Code section
840, which provides in relevant part: “a public employee is not liable for injury caused by a
condition of public property where such condition exists because of any act or-omission of such
employee with the scope of his employment.” (Govt. Code §840.)
Case Jaw is in accord that “public entity liability for property defects is not governed by the general
rule of vicarious liability provided in section 815.2, but instead by the specific provisions set forth in
sections 830-835.4” Van Kempen v Hayward Area Park, Recreation and Park District (1972) 23
Cal.App.3d 822, 825; Longfellow v County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383
Plaintiff may not maintain a statutory negligence claim for conduct that is alleged to have caused or
10 maintained a dangerous/defective condition of public property, because the dangerous condition
iH statute (Government Code section 835) is the exclusive means of recovery for the damages claimed
12 Ga.)
13 Plaintiff's allegations of State’s respondeat superior under section 815.2 cannot be pled
14 concurrently with dangerous condition because the two are mutually exclusive. As a result,
15 Caltrans’ demurrer to the second cause of action of plaintiff’s complaint should be sustained with
16 leave to amend insofar as the allegations of liability under section 815.2 fail to state a cause of action
17 and are uncertain.
18 v
19 PLAINTIFFS FAIL TO PROPERLY ALLEGE A CAUSE OF ACTION
20 FOR BREACH OF A MANDATORY DUTY
21 Plaintiffs alleges that the State “owes a mandatory duty to place and maintain appropriate
22 signs and signals or other traffic control devices required under Pursuant to Vehicle Code,
23 sections 21350, 21367, and 21370.” (Complaint p 8, paragraph 34) In order to properly plead such a
24 cause of action, plaintiff must allege three elements: (1) there must be an enactment which imposes a
25 mandatory duty; (2) that enactment must be intended to protect against the kind of injury suffered
26 and (3) breach of the mandatory duty must be a proximate cause of the injury. State v. Superior
27 Court (1984) 50 Cal. App. 3d 854, 855. Here plaintiff fails to meet that burden in his pleadings.
28 A concise discussion of the essential elements of a mandatory duty case is found in Posey ve
8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS”
COMPLAINT BY DEFENDANT STATE OF CALIFORNIA:
VF ms,
a
State of California a 986) 180 Cal. App. 3d 836 at 848:
The term mandatory duty, as used in Government Code section 815:6 means an obligatory
duty which the governmental entity is required to perform in contrast with a permissive power which|
a governmental body may choose or not choose to exercise (citations). An “enactment” is either a
constitutional provision, statute, charter provision, ordinance, or regulation. (Citation omitted.) A
“regulation “ is a rule, regulation, order or standard, which has the “force of law” which has been
adopted by an employee or agency . . . pursuant to authority vested . . . in such employee or agency
to implement, interpret, or make specific the law enforced or administered by the employee or
agency (citations omitted). Finally, regulations having the “force of law” have been defined as
10 “those regulations that are promulgated pursuant to an authorization to ‘implement, interpret, or
11 make specific’ a law being enforced or administered by the promulgator. This excludes informal
12 “guides,” “policy manuals” and “recommended procedures” helpful in establishing the standards of
13 statutes, but lacking the force of law.” (Currieri v. San Francisco (1968) 262 Cal. App. 3d 603, 609,
14 quoting A. Van Alstyne, California Government Tort Liability, CEB, p. 492).
15 The existence or nonexistence of a “duty” is essentially a legal determination for the court,
16 absent relevant statutory standards. Because the existence of a duty is a legal conclusion, a duty
17 canhot be alleged by making the conclusory statement that defendant “was under a mandatory duty
18 imposed by an enactment.” Facts showing the existence of.a duty must bealleged. (Searcy v
19 Hemnet Unified Sch. Dist (1986) 177 Cal App 3d 792, 802; See also 1 CEB, Government Tort
20 Liability Practice §8.55 at 455-56, and cases cited.)
21 The “mandatory duty” cause of action, based as it is on statute, must be pled with specificity.
22 Here, plaintiff fails to set forth the enactment which allegedly imposes the mandatory duty, how it
23 was intended to protect against the kind of injury suffered by plaintiff, or how it caused the injury.
24 As a result, plaintiff fails to state a cause of action for “breach of a mandatory duty” under
25 ‘Government Code section 815.6, Since the mandatory duty allegations are contained in the
26 dangerous condition cause of action, the language creates uncertainty. As a.result, the State’s
27 demurrer to the mandatory duty allegations and to the second cause of action should be sustained
28 with leave to amend.
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’
COMPLAINT BY DEFENDANT STATE OF CALIFORNIA
on
, VI
:
PARAGRAPH 16 OF THE COMPLAINT VIOLATES CALIFORNIA.RULE OF COURT
SECTION 2.112
Paragraph 16 of Plaintiff's Complaint is defective because it violates California Rule of
Court-section 2.112. California Rule of Court 2.112 requires separately stated causes of action and
counts be numbered and state the nature of ‘the claim. Paragraph 16 of the Complaint violates the
pleadings requirements of this Rule. Paragraph 16 is nota separately stated cause of action and lists
a laundry list with multiple independent causes of action including: strict liability, negligence,
breach of contract, breach ofexpress and implied warranty, negligence per se and other causes of
10 action. There is no credible argument to the cure this defect in Plaintiffs Complaint.
i If Plaintiffs elect to allege these causes of action, then their Complaint should be amended to
12 comport with the statutory pleadingrequirements of the Court. This Demurrer should be granted
13 with leave to amend: '
14 CONCLUSION
15 The complaint in this case jumbles numerous common law and statutory theories and:
16 allegations as against the State. In‘ order to answer the complaint, the State needs to be able to
17 understand what causes of action are being alleged. To the extent the cause(s) of action are based .
18 upon statute, the facts supporting them must be pled with specificity. ‘
19 Based on the foregoing, the State respectfully requests that its demurrer to Plaintiff's
20 Complaint to the First Cause of Action fora dangerous condition, as well as Paragraphs 16 (multiple
21 causes of action), 24 (vicarious liability) and 34 (mandatory duty) with leave to amend and'to the
22 Second Cause of Action for general negligence without leave to amend.
23 DATED: October 6, 2016.
24 SCHERE} MACHADO, CARDOZA, & PETERSEN
25
By.
26 PA’ PETERSEN
Attorneys for Defendant
27 California Department of Transportation
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS?
COMPLAINT BY DEFENDANT STATE OF CALIFORNIA.
on
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DOROTHY BERNAL, et al. V. FRED MENDEZ, et al
Stanislaus County Superior Court Case No. 2021243
\
PROOF OF SERVICE
I, the undersigned, say: I am, and was at all times herein mentioned, a citizen of the United
States and employed in the County of Sacramento, State of California, over the age of 18 years and not
a party to the within action or proceeding; that my business address is 1120 N Street, Sacramento,
California; that on October 6, 2016, I enclosed a true copy of the attached.
DEFENDANT CALIFORNIA DEPARTMENT OF TRANSPORTATION’S DEMURRER AND
MEMORANDUM OF POINTS AND-AUTHORITIES IN SUPPORT TO PLAINTIFFS’
COMPLAINT
in a separate envelope for each of the persons named below, addressed as set forth immediately below
the respective names, as follows:
See attached service list
10
11
[1 By Mail: I caused such envelope(s) to be deposited in the mail at my business address
12 addressed to the addressee(s) designated. I.am readily familiar with The State of California, Department
of Transportation, Legal Division’s practice for collection and processing of correspondence and
13 pleadings formailing. In the ordinary course of business at the Department of Transportation, Legal
Division, mail is given the correct amount of postage and is deposited on that same day i in a United
14 States Postal Service mailbox in the City of Sacramento, California.
15
4 By Personal Service: I caused such envelope(s) to be delivered in person to the addressee(s)
16 designated.
17
Xl By Overnight Courier Service: I caused such envelope(s) to be delivered via overnight courier
18 service to the addressee(s) designated.
19 O By Facsimile: I caused said document(s) to be transmitted to the telephone number(s) of the
20 addressee(s) designated. A copy of the transmission report showing the transmission was complete and
without error is attached hereto.
21
22
O By Electronic Mail: I scanned and emailed said documents to the email addresses as stated
below.
23
I declare under penalty of perjury under the laws of the State ofCalifornia that the
24 foregoing is true and correct.
25 Executed at Sacramento, California, on October 6, 2016
(ash?
26
27
Devika Datt
28
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PROOF OF SERVICE
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DOROTHY BERNAL, et al. V. FRED ME! NDEZ, et.al.
Stanislaus County Superior Court Case No. 2021243
Service List
Wade M. Hansard, Esq. Attorneys for Plaintiff Dorothy Bernal
McCormick, Barstow, Sheppard, Wayte &
Carruth LLP
7647 North Fresno Street
Fresno, CA 93720
Tel: (559)433-1300.
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PROOF OF SERVICE
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z 8 3 im oeale 8 JEANNE SCHERER, Chief Counsel LAUREN A. MACHADO, Deputy Chief Counsel FILED GINA CARDOZA, Assistant Chief Counsel PATRICK PETERSEN, Deputy Attorney, Bar No. 232639 16 0CT-7 AIO: 44 Attorneys for California Department of Transportation CLE aK OF THE SUPERIOR SoeRr 1120N Street (MS. 57), P.O. Box 1438 Sacramento, CA 95812-1438 Telephone: (916) 654-2630 Facsimile: (916) 654-6128 The State of California is exempl from filing fees under Government Code section 6103 . Attorneys for Defendant CALIFORNIA DEPARTMENT OF TRANSPORTATION SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF STANISLAUS 10 11 DOROTHY BERNAL, DAVID BERNAL, ) Case No. 2021243 ANGELICA BERNAL, a minor, by and through } 12 her guardian ad litem, ROBERT BERNAL MEMORANDUM OF POINTS AND } AUTHORITIES IN SUPPORT OF 13 Plaintiffs ) DEMURRER TO PLAINTIFFS’ ) COMPLAINT BY DEFENDANT STATE 14 Vv. ) OF CALIFORNIA 15 FRED MENDEZ, RALPH JUAREZ, GEORGE ) REED CONSTRUCTION, INC., COUNTY OF ) DATE: November 9, 2016 16 STANISLAUS, CITY OF MODESTO, ) TIME: = 8:30 a.m. CALIFORNIA DEPARTMENT OF DEPT: 24 17 TRANSPORTASTION, and DOES | through ) ASSIGNED FOR ALL PURPOSES TO: 100 inclusive, 18 Honorable Roger M. Beauchesnf Defendants 19 Complaint Filed: August 9, 2016 20 21 22 INTRODUCTION 23 Defendant met and conferred with Plaintiff's via telephone to discuss the State’s Demurrer. 24 The parties agreed that it would be best to have the Court rule on the State’s Demurrer. Attached as 25 Exhibit 1, is the Declaration of Patrick Petersen in support of the Demurrer. 26 The State demurs to Plaintiffs’ Complaint on five grounds (1) the State demurs to Plaintiffs 27 First Cause of Action for a dangerous condition of public property, under C.C.P. section 430.10(e) 28 and (f) on the grounds that it is vague and uncertain insofar as it not pled with the requisite 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, TO PLAINTIFFS’ COMPLAINT BY DEFENDANT STATE OF CALIFORNIA i? . specificity; (2) to Plaintiffs’ Second Cause of Action for general negligence on the grounds that it improperly pleads general negligence against a public entity and (3) improperly pleads a mandatory duty against the State under established case law; (4) to Paragraph 24 of the Complaint on the grounds that public entity defendants are not liable for the acts and omissions of theiremployees; and (5) to Paragraph 16 of the Complaint under General Allegations on the grounds that it violates California Rule of Court section 2.112 for failing to separately state and number counts.and causes of action. This demurrer is based on.the Notice of Hearing, the Memorandum of Points and Authorities, the entire court file in this action and on such matters and authorities as may arise during| oral argument. 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 11 I 12 INTRODUCTION/STATEMENT OF FACTS 13 This is an action for personal injuries arising from an automobile versus automobile accident 14 at the intersection of Claribel Road and Coffee Road in Modesto, California. According to 15 Paragraph 14 of the Complaint, Plaintiffs stopped at a stop sign and then entered the intersection 16 where Mendez struck their vehicle and that “Mendez would fail to stop at the intersection” and 17 impacted their vehicle causing catastrophic personal injuries. (Complaint at p 4 paragraph 14) 18 Mendez’s vehicle broadsided Plaintiffs’ vehicle in the intersection: Plaintiff alleges that 19 Plaintiff sues the State and other publi¢ entities under their First Cause of Action for a 20 dangerous conditions of public property. Plaintiff alleges a plethora of roadway features and 21 characteristics of the intersection contributed to or caused the accident including but not limited to 22 being: “defectively placed , angled, designed, built , drafted, engineered, controlled, inspected, 23 modified, planned , contracted, and regulated.” (Complaint at pp. 4-5 Paragraph 23 a) Paragraphs- 24 23b-¢ also allege that the signage, pavenient lane markings and traffic controls were “improperly, 25 dangerously and defectively placed, angled, designed, built, drafted, engineered, controlled, 26 inspected, modified, planned, contracted and regulated.” Plaintiff argues that “With the proper 27 traffic control, and/or sufficient warnings, the subject accident could have been.avoided (Complaint 28 at p 7 paragraph 27). 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT BY DEFENDANT STATE OF CALIFORNIA on - oN ~ Plaintiff sues all of the public entity defendants for general. negligence in their Second Cause of Action. Plaintiffs allege that the State owed plaintiffs a mandatory duty for the signage and traffic control based on reference to the multiple Vehicle Code section referencing State owned property. Plaintiff rather eloquently summarizes the causation basis had to do with the features of the stop sign facing Mendez (Complaint at p 8 paragraph 36). This is much more specific than Plaintiffs’ allegations for their dangerous condition cause of action in attempting to link the roadway to somehow factoring in to Mendez running the stop sign and causing a T-bone collision with Plaintiffs’ vehicle. Within the same cause of action, Plaintiffs allege that the State “owes a mandatory duty to , 10 place and maintain appropriate signs and signals or other traffic controls devices... pursuant to 11 Vehicle Code, sections21350, 21367, and 21370 (Complaint atpage 8 paragraph 34). 12 In the general allegations section of the Complaint. Plaintiff alleges that each Defendant is 13 responsible in some manner, either by act or omission, strict liability, negligence, breach of contract, 14 breach of express/implied warranty, negligence per se, agency, employment or otherwise... and that 15 Plaintiff's damages were legally cause by the conduct.” (Complaint at page 4 paragraph 16). 16 The State demurs to the complaint of Plaintiffs under Code of Civil Procedure section 17 430.10(c) and (f), on the grounds that it fails to state a cause of action and is uncertain in that (1) it 18 pleads general negligence; (2) the dangerous condition of public property cause of action is not pled 19 with the requisite specificity; (3) it impermissibly pleads vicarious liability of public entities for the 20 acts of their employees; and (4) it improperly pleads a mandatory duty and (5) improperly pleads 21 miultiple causes of action in a single paragraph. 22 Il 23 “DANGEROUS CONDITION” IS NOT PLED WITH THE REQUISITE SPECIFICITY 24 The State’s liability for dangerous conditions is defined by the Government Claims Act 25 (Gov. Code §810 ef seq.) and the cases construing those statutes. Under Government Code section 26 815, a public entity may be directly liable for an injury as a result of its own conduct or omission, 27 but only as “provided by statute.” “[S]tatutory causes of action must be pleaded with particularity, ‘ 28 showing every fact essential to the existence of statutory liability.” (1 Cal. Government Tort 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS” COMPLAINT BY DEFENDANT STATE OF CALIFORNIA re Liability Practice (CEB 4th ed. 2007) § 8.42, p. 433-435.) The court in Lopez v. Southern Cal. Rapid Transit Dist., (1985) 40 Cal.3d 780, 795, explained: Ordinarily, negligence may be pleaded in general terms and the plaintiff’ need not.specify 1 the precise act or omission alleged to constitute the breach of duty. [Citation.] However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with parti¢ularity is applicable. Thus, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” [Citations.] The Supreme Court has held that Government Code section 835 “is the principal provision 10 addressing the circumstances under which the government may be held liable for maintaining a il dangerous condition of public property.” (Peterson v. San Francisco (1984) 36 Cal.3d 799, 809.) 12 Plaintiff must plead all of the following elements: 13 [1] the property was in a dangerous condition at the time of the injury; [2] the injury was proximately caused by the dangerous condition, 14 [3] the dangerous condition created.a reasonably foreseeable risk of the kind of injury which was incurred, and 15 [4] either: (a) A.negligent or wrongful act or omission of an employee of the public entity within the 16 scope of his employment created the dangerous condition; or 17 (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 18 dangerous condition. 19 When a complaint is based on Government Code section 835, “the plaintiff must set forth 20 facts in [the] complaint Sufficiently detailed and specific to support an inference that each of the 21 statutory elements of liability is satisfied.” (Aittenhuber v. City of Redondo Beach (1983) 142 22 Cal.App.3d 1, 5.) Plaintiff, therefore, is required to plead facts supporting each element of the cause 23 of action for.dangerous condition of public property as provided in section 834 as against Caltrans. 24 A mere recitation of the statutory language, and broad allegations that the elements of dangerous 25 condition have been met does not satisfy this requirement. 26 Plaintiff's voluminous complaint devotes many pages to reciting the statutory language of the} 27 Government Code, but precious little verbiage describing the actual dangerous condition, causation, 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT BY DEFENDANT STATE OF CALIFORNIA vn os creation or notice. Plaintiff alleges generally that the State“negligently and carelessly” did or failed to do many things, including designing, construction and maintenance, (Complaint, pp 4-5, paragraph 23.) The only language which suggests what the dangerous condition might be is buried in the complaint under the Second Cause of Action for general negligence relating to the placement of traffic control devices and the placement of temporary stop signs to control the intersection (Complaint at p 8, paragraph 36): The breath of the allegation in Paragraph 23 and its various subsections are extremely broad and reference the signs, pavement and traffic control devices as “improperly, dangerously, and defectively placed, angled, designed, built, drafted, engineered, controlled, inspected, modified, planned, contracted and regulated.” (Complaint pp5-6, paragraph 10 23) The Complaint continues to allege that the State failed to “post warning signs, providing more 11 noticeable traffic control devices, providing maintenance, and/or other reasonable protective 12 safeguard measures. (Complaint p7, paragraph 27) How maintenance of the roadway is linked to a 13 driver failing to yield to a stop sign and striking Plaintiffs’ vehicle is another example of the nebulas 14 nature of the Complaint. When alleging “dangerous condition,” under Government Code section 15 835, facts supporting each of the elements set forth above must be pled with sufficient specificity so 16 that the State is able to understand the complaint and defend against it. There are no specific 17 roadway defects identified in the First Cause of Action for a dangerous condition, and no description 18 of how the allegedly defective roadway feature caused the-accident. The requirement of specificity is| 19 not met here, as the language alleging that the public entitiés “negligently and carelessly designed, - 20 warned ...” etc., is impermissibly vague. As a result, the State requests that its demurrer be 21 sustained with leave to amend. 22 il 23 Ti ‘HE STATE CANNOT BE HELD LIABLE FOR COMMON LAW NEGLIGENCE 24 It is well settled that California public entities are liable, if at all, only pursuant to a specific” 25 statute imposing liability. (Gov. Code § 815; Lopez v. So. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 26 780, 795.) The enactment of Government Code section 815 as part of the Government Claims Act 27 (formerly Tort Claims Act) effectively abolished all common law tort liability for public entities. It 28 states that public entities are not liable for an injury “except as otherwise provided by statute.” 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT BY DEFENDANT STATE OF CALIFORNIA on a (Tolan v, State of California ex rel Dept. of Transportation (1979) 100 Cal.App.3d 980, 986.) “The intent of the act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances.” (Williams v. Horvath (1976) 16 Cal.3d 834, 838.) Thus, this case is not a generic, open-ended “negligence” action, and plaintiff cannot recover for general negligence against Caltrans. In addition, the Supreme Court has ruled that the general negligence principles of Civil Code section 1714, which govern the potential liability of private property owners, do not apply to public entities: t To the extent the Court of Appeal determined that the provisions of Civil Code Section 1714 may be 10 applied to extend the liability of a public entity in this setting beyond the reach of the ‘dangerous 11 condition’ provisions-of Government Code section 835, we conclude that the appellate court was.in 12 error... [T]he liability of public entities as property owners is set out specifically in Government 13 Code section 835, as part of the general scheme of the Tort Claims Act. (Zelig v. County of Los 14 Angeles (2002) 27 Cal.4th 1112, 1132.) 1S Plaintiff's Second Cause of Action entitled “Negligence” alleges that Caltrans and the other public entity defendants negligently installed, placed the stop signs with limited visibilityto the 16 motorists. (Complaint, p.8, paragraph 36.) To the extent plaintiff is attempting to allege common law negligence, or negligence under Civil Code section 1714, such a cause of action does not lie 17 against Caltrans. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) 18 Thus, the State’s demurrer to the general negligence allegations should be sustained without,leave to amend, as Caltrans and the other public entity defendants cannot be held liable therefor. To the 19 extent plaintiff is attempting to allege that negligent conduct on the part of State employees created a| dangerous condition, his pleading is impermissibly vague, as set forth more fully in Argument III 20 below. IV 21 THE STATE CANNOT BE HELD LIABLE FOR EMPLOYEE TORTS 22 UND ER THE CIRCUMSTANCES ALLEGED IN THE COMPLAINT 23 24 Plaintiffs allege that “defendants are vicariously liable for the acts and omissions of their 25 employees.” For failing to “maintain safe premises, failing to properly train and supervise their 26 employees, failing to warn of unsafe conditions; and failing to routinely inspect the premises for 27 hazardous conditions.” (Complaint p 6, paragraph 24) However, the Complaint fails to plead facts, 1 28 sufficient to support a cause of action for negligence of any individual employee(s), or for vicarious 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT BY DEFENDANT STATE OF CALIFORNIA a ot liability of the State. Moreover, government employees are immune from liability under Government Code section 840 when injury is caused by a condition of property, and the State cannot be held vicariously liable under such circumstances. Tort liability of public employees is governed by Government Code section 820, which provides in relevant part: “(a) Except as otherwise provided by statute... , a public employee is liable for injury caused by his act or omission to the same extent as a private person.” Governmental respondeat superior liability for the torts of its employees is set forth in Government Code section 815.2, as follows: (a) A public entity is liable for injury proximately caused by an act or omission of an employee of 10 the public entity within the scope of his employment if the act or omission would, apart from this l1 section, have given rise to a cause of action against that employee or his personal representative. 12 (b) Except as otherwise provided by statute, a public entity is not liable for an injury 13 resulting from an act or omission of.an employee of the public entity where the 14 employee is immune from liability. 15 While section 815.2(a) allows public entity liability for injuries caused by a public employee, 16 the statute only applies where the complaint alleges facts showing that “a public employee engaged 17 in conduct within the scope of employment that would render the employee liable.” Zelig v. County 18 of Los Angeles (2002) 27 Cal.4th 1112, 1131 (emphasis added). When pleading vicarious liability 19 under section 815.2, the plaintiff must identify the particular employee whose negligence allegedly 20 injured the plaintiff, and plead facts establishing that the particular employee(s) owed a duty to the 21 plaintiff, breached it, and thus caused the injury. (See Munoz v City of Union City (2004) 120 Cal 22 App 4th 1077, 1093. See also, 1 CEB, Government Tort Liability Practice §8.53 at 453.) 23 Plaintiffs. fail to allege a factual basis for showing that any particular employee committed an 24 actionable tort, or had a duty to. plaintiff arising from a special relationship or other circumstance. 25 Plaintiff fails to state a cause of action insofar as no underlying tort of any individual employee(s) is 26 alleged which could form the basis for vicarious liability of the State under section 815.2. 27 Because the allegations of employee negligence are incorporated in the Dangerous Condition Cause 28 of Action, it is presumed that the alleged tortious acts are those which created the dangerous q MEMORANDUM OF POINTS AND AUTHORITIES-IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT BY DEFENDANT STATE OF CALIFORNIA oe condition. As such, Caltrans.employees are immune from liability under Government Code section 840, which provides in relevant part: “a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or-omission of such employee with the scope of his employment.” (Govt. Code §840.) Case Jaw is in accord that “public entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but instead by the specific provisions set forth in sections 830-835.4” Van Kempen v Hayward Area Park, Recreation and Park District (1972) 23 Cal.App.3d 822, 825; Longfellow v County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383 Plaintiff may not maintain a statutory negligence claim for conduct that is alleged to have caused or 10 maintained a dangerous/defective condition of public property, because the dangerous condition iH statute (Government Code section 835) is the exclusive means of recovery for the damages claimed 12 Ga.) 13 Plaintiff's allegations of State’s respondeat superior under section 815.2 cannot be pled 14 concurrently with dangerous condition because the two are mutually exclusive. As a result, 15 Caltrans’ demurrer to the second cause of action of plaintiff’s complaint should be sustained with 16 leave to amend insofar as the allegations of liability under section 815.2 fail to state a cause of action 17 and are uncertain. 18 v 19 PLAINTIFFS FAIL TO PROPERLY ALLEGE A CAUSE OF ACTION 20 FOR BREACH OF A MANDATORY DUTY 21 Plaintiffs alleges that the State “owes a mandatory duty to place and maintain appropriate 22 signs and signals or other traffic control devices required under Pursuant to Vehicle Code, 23 sections 21350, 21367, and 21370.” (Complaint p 8, paragraph 34) In order to properly plead such a 24 cause of action, plaintiff must allege three elements: (1) there must be an enactment which imposes a 25 mandatory duty; (2) that enactment must be intended to protect against the kind of injury suffered 26 and (3) breach of the mandatory duty must be a proximate cause of the injury. State v. Superior 27 Court (1984) 50 Cal. App. 3d 854, 855. Here plaintiff fails to meet that burden in his pleadings. 28 A concise discussion of the essential elements of a mandatory duty case is found in Posey ve 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS” COMPLAINT BY DEFENDANT STATE OF CALIFORNIA: VF ms, a State of California a 986) 180 Cal. App. 3d 836 at 848: The term mandatory duty, as used in Government Code section 815:6 means an obligatory duty which the governmental entity is required to perform in contrast with a permissive power which| a governmental body may choose or not choose to exercise (citations). An “enactment” is either a constitutional provision, statute, charter provision, ordinance, or regulation. (Citation omitted.) A “regulation “ is a rule, regulation, order or standard, which has the “force of law” which has been adopted by an employee or agency . . . pursuant to authority vested . . . in such employee or agency to implement, interpret, or make specific the law enforced or administered by the employee or agency (citations omitted). Finally, regulations having the “force of law” have been defined as 10 “those regulations that are promulgated pursuant to an authorization to ‘implement, interpret, or 11 make specific’ a law being enforced or administered by the promulgator. This excludes informal 12 “guides,” “policy manuals” and “recommended procedures” helpful in establishing the standards of 13 statutes, but lacking the force of law.” (Currieri v. San Francisco (1968) 262 Cal. App. 3d 603, 609, 14 quoting A. Van Alstyne, California Government Tort Liability, CEB, p. 492). 15 The existence or nonexistence of a “duty” is essentially a legal determination for the court, 16 absent relevant statutory standards. Because the existence of a duty is a legal conclusion, a duty 17 canhot be alleged by making the conclusory statement that defendant “was under a mandatory duty 18 imposed by an enactment.” Facts showing the existence of.a duty must bealleged. (Searcy v 19 Hemnet Unified Sch. Dist (1986) 177 Cal App 3d 792, 802; See also 1 CEB, Government Tort 20 Liability Practice §8.55 at 455-56, and cases cited.) 21 The “mandatory duty” cause of action, based as it is on statute, must be pled with specificity. 22 Here, plaintiff fails to set forth the enactment which allegedly imposes the mandatory duty, how it 23 was intended to protect against the kind of injury suffered by plaintiff, or how it caused the injury. 24 As a result, plaintiff fails to state a cause of action for “breach of a mandatory duty” under 25 ‘Government Code section 815.6, Since the mandatory duty allegations are contained in the 26 dangerous condition cause of action, the language creates uncertainty. As a.result, the State’s 27 demurrer to the mandatory duty allegations and to the second cause of action should be sustained 28 with leave to amend. 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT BY DEFENDANT STATE OF CALIFORNIA on , VI : PARAGRAPH 16 OF THE COMPLAINT VIOLATES CALIFORNIA.RULE OF COURT SECTION 2.112 Paragraph 16 of Plaintiff's Complaint is defective because it violates California Rule of Court-section 2.112. California Rule of Court 2.112 requires separately stated causes of action and counts be numbered and state the nature of ‘the claim. Paragraph 16 of the Complaint violates the pleadings requirements of this Rule. Paragraph 16 is nota separately stated cause of action and lists a laundry list with multiple independent causes of action including: strict liability, negligence, breach of contract, breach ofexpress and implied warranty, negligence per se and other causes of 10 action. There is no credible argument to the cure this defect in Plaintiffs Complaint. i If Plaintiffs elect to allege these causes of action, then their Complaint should be amended to 12 comport with the statutory pleadingrequirements of the Court. This Demurrer should be granted 13 with leave to amend: ' 14 CONCLUSION 15 The complaint in this case jumbles numerous common law and statutory theories and: 16 allegations as against the State. In‘ order to answer the complaint, the State needs to be able to 17 understand what causes of action are being alleged. To the extent the cause(s) of action are based . 18 upon statute, the facts supporting them must be pled with specificity. ‘ 19 Based on the foregoing, the State respectfully requests that its demurrer to Plaintiff's 20 Complaint to the First Cause of Action fora dangerous condition, as well as Paragraphs 16 (multiple 21 causes of action), 24 (vicarious liability) and 34 (mandatory duty) with leave to amend and'to the 22 Second Cause of Action for general negligence without leave to amend. 23 DATED: October 6, 2016. 24 SCHERE} MACHADO, CARDOZA, & PETERSEN 25 By. 26 PA’ PETERSEN Attorneys for Defendant 27 California Department of Transportation 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS? COMPLAINT BY DEFENDANT STATE OF CALIFORNIA. on é a DOROTHY BERNAL, et al. V. FRED MENDEZ, et al Stanislaus County Superior Court Case No. 2021243 \ PROOF OF SERVICE I, the undersigned, say: I am, and was at all times herein mentioned, a citizen of the United States and employed in the County of Sacramento, State of California, over the age of 18 years and not a party to the within action or proceeding; that my business address is 1120 N Street, Sacramento, California; that on October 6, 2016, I enclosed a true copy of the attached. DEFENDANT CALIFORNIA DEPARTMENT OF TRANSPORTATION’S DEMURRER AND MEMORANDUM OF POINTS AND-AUTHORITIES IN SUPPORT TO PLAINTIFFS’ COMPLAINT in a separate envelope for each of the persons named below, addressed as set forth immediately below the respective names, as follows: See attached service list 10 11 [1 By Mail: I caused such envelope(s) to be deposited in the mail at my business address 12 addressed to the addressee(s) designated. I.am readily familiar with The State of California, Department of Transportation, Legal Division’s practice for collection and processing of correspondence and 13 pleadings formailing. In the ordinary course of business at the Department of Transportation, Legal Division, mail is given the correct amount of postage and is deposited on that same day i in a United 14 States Postal Service mailbox in the City of Sacramento, California. 15 4 By Personal Service: I caused such envelope(s) to be delivered in person to the addressee(s) 16 designated. 17 Xl By Overnight Courier Service: I caused such envelope(s) to be delivered via overnight courier 18 service to the addressee(s) designated. 19 O By Facsimile: I caused said document(s) to be transmitted to the telephone number(s) of the 20 addressee(s) designated. A copy of the transmission report showing the transmission was complete and without error is attached hereto. 21 22 O By Electronic Mail: I scanned and emailed said documents to the email addresses as stated below. 23 I declare under penalty of perjury under the laws of the State ofCalifornia that the 24 foregoing is true and correct. 25 Executed at Sacramento, California, on October 6, 2016 (ash? 26 27 Devika Datt 28 1 PROOF OF SERVICE - a ne DOROTHY BERNAL, et al. V. FRED ME! NDEZ, et.al. Stanislaus County Superior Court Case No. 2021243 Service List Wade M. Hansard, Esq. Attorneys for Plaintiff Dorothy Bernal McCormick, Barstow, Sheppard, Wayte & Carruth LLP 7647 North Fresno Street Fresno, CA 93720 Tel: (559)433-1300. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE