Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LC086249 Bert Glennon, Judge.
Jeff Berke for Plaintiff and Appellant.
Richardson & Fair and Stephen Kalpakian for Defendants and Respondents.
KLEIN, P. J.
Plaintiff and appellant Wendell Payne (Payne) appeals a judgment of dismissal following the sustaining without leave to amend of demurrers interposed by defendants and respondents Rudolph Concha (Concha) and Interinsurance Exchange of the Automobile Club (Auto Club) to Payne’s third amended complaint.
Payne sued Concha and the Auto Club for falsely claiming Payne was involved in a vehicle accident with Concha on August 17, 2005, while Payne was driving his employer’s Freightliner truck. Payne denies his involvement and contends he was falsely implicated in the accident. The trial court sustained defendants’ demurrer without leave to amend on the ground an LAPD traffic collision information card (attached as an exhibit to the declaration of defendants’ attorney) established Payne’s involvement in the accident.
We conclude the trial court erred in looking to evidentiary matter beyond the four corners of the complaint to sustain defendants’ demurrers. Whether Payne was involved in the August 17, 2005, accident is a question of fact which cannot be resolved at the demurrer stage. Therefore, the judgment of dismissal is reversed with directions to reinstate the action.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pleadings.
Payne commenced this action on July 20, 2009. The operative third amended complaint against Concha and the Auto Club, filed December 15, 2009, alleged in relevant part:
In December 2005, Payne was contacted by Alicia Templeton, an agent for the Auto Club, and was told he was accused of being involved in an accident with an Auto Club insured. After a year of discussions between Payne and Templeton, in which Payne explained he was not involved in the accident and had no knowledge of anything that happened, he was told by Templeton that no further action would be taken with regard to him unless and until a police report were found. Templeton further informed Payne that no such report existed at the time.
Payne later learned that despite the Auto Club’s assurances, it had prosecuted a lawsuit against him for the alleged damages that were caused in the accident, and that the Auto Club had obtained a default judgment against him.
Payne is a truck driver by trade. On January 8, 2008, his employer told him not to report to work because his driver’s license had been suspended. Payne learned the Auto Club reported the default judgment to the Department of Motor Vehicle, resulting in the suspension of his driver’s license. This was how Payne learned of the Auto Club’s lawsuit and the default judgment. As a result of the time it took Payne to reinstate his license, he was terminated by his employer and was unable to obtain new employment.
The Auto Club’s default judgment was vacated as a result of improper service; the Auto Club knew how to reach Payne, yet it purported to serve him at addresses that it knew were improper. After the default judgment against Payne was vacated, the trial court dismissed the Auto Club’s lawsuit against Payne for lack of prosecution.
Concha “provided the Auto Club with [Payne’s] name and identifying information as the cause of his accident, even though he knew that information to be false. Defendant Concha’s false statement that [Payne] had caused an accident with his vehicle is what set in motion the entire chain of events that... led to [Payne’s damages].”
Based on the above, the third amended complaint set forth causes of action against both Concha and the Auto Club for (1) negligence, (2) fraud and (3) negligent misrepresentation. Additionally, as against the Auto Club, Payne pled causes of action for (4) interference with contract, (5) interference with prospective advantage, (6) malicious prosecution, and (7) abuse of process.
2. Demurrers.
Concha and the Auto Club both demurred, asserting Payne was in fact involved in a motor vehicle accident with Concha on August 17, 2005.
Concha and the Auto Club contended: An LAPD detective, Julie Stranahan, was behind Concha’s vehicle and witnessed the accident. Detective Stranahan assisted Concha in obtaining the information on Payne and the vehicle he was driving. The LAPD Traffic Collision Information card was presented to Concha by Detective Stranahan at the accident scene. Concha then forwarded the card to his insurance carrier, the Auto Club. “A true and correct copy of the [LAPD] Traffic Collision Information provided to Mr. Concha by Detective Stranahan is marked and attached as Exhibit A” to the defendants’ memoranda of points and authorities. (Italics added.)
The demurrers were supported by the declaration of Stephen Kalpakian, attorney of record for Concha and for the Auto Club. The Kalpakian declaration stated that attached thereto as an exhibit was “a true and correct copy of the [LAPD] Traffic Collision Information card dated August 17, 2005 that was provided to [Concha] by [Detective Stranahan] at the scene of the accident, ” identifying Payne as the driver.
We note the traffic collision information card merely lists the name of the driver and the name of the registered owner. There is no indication on the card as to who filled out the card. The card does not mention Detective Stranahan or any other LAPD police officer.
3. Payne’s opposition to the demurrers.
Payne’s opposition papers argued the demurrers filed by Concha and the Auto Club violated the basic principles that on demurrer, all facts pled in the complaint must be presumed to be true, and that facts and evidence outside the complaint cannot be considered at the demurrer stage. Therefore, “the declaration of Stephen Kalpakian and the attached exhibit (which is in any event hearsay and unauthenticated) should be stricken and disregarded.” Payne contended all seven causes of action were well pled, and the allegations were sufficient to provide notice to defendants and to enable them to defend themselves in the action.
4. Trial court’s ruling.
On March 10, 2010, the demurrers to the third amended complaint came on for hearing and were sustained without leave to amend. At the hearing, the trial court stated “[t]his is the third time that... the complaint has been amended, and there is just simply no allegation or evidence presented, ... that the information on the card that was given to the police came from somebody else other than Mr. Payne.” (Italics added.) The trial court found “[t]here is simply no evidence... that somebody else had [Payne’s] information. There is no allegation as to how the police, who were on the scene of the accident, got information from somebody else that wasn’t Mr. Payne, and there have been three attempts to allege something that would fit that gap.” (Italics added.)
The matter was before the trial court on demurrer, not on a motion for summary judgment. Therefore, the inquiry was not whether Payne had proffered sufficient evidence in support of his claims.
The reporter’s transcript further reflects the trial court mistakenly believed the Auto Club’s default judgment against Payne had not been set aside. The trial court stated “[Payne] was properly served with a subrogation complaint, failed to respond to it, and a default judgment was entered against him, and the plaintiff’s failure to respond to the legal process resulted in his problems, not the defendant.” (Italics added.)
After Payne tried to correct the trial court that the default judgment had in fact been vacated, the trial court stated, “Well, my understanding was that there was a default judgment that was entered and it was not set aside. That’s what I got from the papers here.” (Italics added.)
Mr. Kalpakian then responded the default judgment had been set aside pursuant to a stipulation of the parties and the case thereafter “got dismissed by both sides.”
Nonetheless, the trial court then stated, “if there was a default judgment taken, then the appropriate thing to do is make a motion to set aside the default judgment, which I gather you’ve never done.” (Italics added.)
The trial court concluded the third amended complaint failed to state a cause of action because there was nothing in the pleading to indicate “how anybody else other than yourself would have had all of your information which was given to the police. That is the gaping chasm.”
5. Subsequent proceedings.
Payne moved for reconsideration. In an attempt to respond to the trial court’s concerns about Payne’s evidentiary shortcomings, Payne proffered a declaration by Julie Rodriguez, an LAPD detective. Said declaration stated: on August 17, 2005, Rodriguez, an off duty detective, happened upon the scene of an accident in the vicinity of Haskell Avenue and Victory Boulevard, a collision between a big rig truck and a passenger vehicle. “I stopped my car and got out to make sure that the people involved in the accident were okay and did not need medical attention. I noted that the driver of the truck was a Latino individual of medium size and build. [¶] I have subsequently become aware than an individual named Wendell Payne has been identified as the driver of the truck involved in the accident. I have seen Mr. Payne and he is an African-American man who stands at least six feet tall and weighs approximately 250 pounds. He was not the individual who I saw at the scene of the accident on August 17, 2005.”
On May 26, 2010, the trial court denied Payne’s motion for reconsideration.
On May 27, 2010, Payne filed a premature but timely notice of appeal from the July 6, 2010, judgment of dismissal. (Cal. Rules of Court, rule 8.104(d).)
CONTENTIONS
Payne contends his complaint is well pled and the trial court improperly based its decision on matters not set forth in the third amended complaint and on matters that would be inadmissible even in a contested evidentiary hearing.
The respondents’ brief does not comport with the California Rules of Court and is not helpful to this court. Respondents’ “Factual and Procedural Background” disregards the fact that this matter comes to us at the pleading stage. Instead of citing to Payne’s allegations and being limited to matter in the record on appeal (Cal. Rules of Court, rule 8.204(a)(1)(C) [any reference to matter in the record must be supported by a citation to the volume and page where the matter appears]), respondents set forth a detailed narrative of “facts” consisting of extensive matter outside the record.
DISCUSSION
1. Standard of appellate review.
In determining whether a plaintiff has properly stated a claim for relief, “our standard of review is clear: ‘ “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ [Citations.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig).) Our review is de novo. (Ibid.)
2. Payne adequately pled he was not involved in the subject accident; that allegation must be taken as true; Payne’s involvement in the accident is a disputed question of fact which cannot be resolved at the demurrer stage.
a. Payne duly pled he was not involved in the accident.
As indicated, Payne pled that in December 2005, he was contacted by Templeton at the Auto Club, who told Payne he was accused of being involved in an accident with an Auto Club insured. “After a year of repeated discussions between [Payne] and Ms. Templeton, in which [Payne] explained that he was not in the accident and had no knowledge of anything that had happened, he was told by Ms. Templeton that no further action would be taken with regard to [him] unless and until a police report was found.” (Italics added.)
These allegations, which are “ ‘deemed to be true’ ” at the demurrer stage (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034), are a sufficient averment that Payne had no involvement in the subject accident.
b. At the demurrer stage, the traffic collision information card is unavailing to Concha and the Auto Club.
In examining the sufficiency of a complaint, the trial court is not limited to the four corners of the pleading but may also consider matters which are subject to judicial notice. (Zelig, supra, 27 Cal.4th at p. 1126.) Respondents assert the trial court properly relied on the LAPD traffic collision information card because the card “was prepared with the personal knowledge of Officer Fuqua who was provided with the driver’s license of Mr. Payne in order to fill out the card, ” making the card judicially noticeable as an official document of the police department. (Evid. Code, § 452, subd. (c) [judicial notice may be taken of official acts of executive departments of any state].)
The argument is unsupported by the record -- although respondents seek to link the traffic collision information card to one Officer Fuqua, the card is unsigned and there is nothing on the card to indicate the involvement of Officer Fuqua.
Moreover, “ ‘When judicial notice is taken of a document, ... the truthfulness and proper interpretation of the document are disputable. [Citation.] [¶]... ‘Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. [Citation.]... “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” [Citation.] The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. [Citation.]’... ‘ “[J]udicial notice “of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” [Citation.]’ (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114, italics added.)
Thus, even assuming the unsigned traffic collision information card were subject to judicial notice under Evidence Code section 452, at most, the trial court could take judicial notice of the existence of the card – it could not take judicial notice of the truth of its contents, i.e., that Payne was involved in the accident.
In sum, Payne’s involvement in the subject accident is a disputed question of fact which the trial court erred in resolving at the demurrer stage.
We express no opinion as to the merits of Payne’s claims. We merely hold Payne’s complaint is sufficient to withstand demurrer.
DISPOSITION
The judgment of dismissal is reversed with directions to reinstate the third amended complaint. Payne shall recover his costs on appeal.
We concur: KITCHING, J.ALDRICH, J.