Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV117081.
Premo, Acting P.J.
Plaintiffs Eric and Jennifer Kurz (collectively, plaintiffs) petition this court for a writ of mandamus directing the superior court to vacate its order sustaining a demurrer to their second cause of action. Real parties in interest are defendants Barbara Knatcher and the Santa Clara Valley Transportation Authority (VTA) (collectively, defendants).
Plaintiffs sued defendants for injuries they suffered when the vehicle Eric Kurz was driving was struck by a VTA light rail train operated by Knatcher. The superior court sustained defendants’ demurrer to plaintiffs’ second cause of action for negligence against Knatcher on the ground that the claim plaintiffs had filed with VTA pursuant to Government Code section 900 et seq. was insufficient. The superior court found that plaintiffs’ claim had referred only to problems with the intersection where the accident occurred and not to any problems related to the operation of the train. We find that the claim was sufficient to alert VTA to its potential liability related to the operation of the train and shall issue the writ as requested.
Further unspecified section references are to the Government Code.
I. Factual and Procedural Background
Just before 6:00 p.m. on August 2, 2007, Eric Kurz was driving northbound on North First Street in San Jose at a point where the VTA light rail tracks run down the middle of the street. At the intersection of North First Street and Rosemary, Kurz turned left across the tracks and into the path of a train operated by Knatcher. Kurz suffered serious injuries when the train collided with his car.
On January 25, 2008, plaintiffs filed a written claim with VTA, a prerequisite to their suit against the public entity. The claim was on a form supplied by VTA. In the section asking for a “general description of the indebtedness, obligation, injury, damage or loss incurred” and for the “known facts surrounding the loss” plaintiffs stated that Kurz “was struck in the driver’s door by the Light Rail at the intersection of N. 1st Street and Rosemary... [a]s a result of this accident, Mr. Kurz suffered multiple severe injuries... [and] Mrs. Jennifer Kurz, his wife, is asserting a claim for loss of Consortium.” Under the section asking for the “name or names of the VTA employee or employees causing the injury, damage, or loss” plaintiffs listed “Barbara Knatcher ID# 2914.”
On February 4, 2008, plaintiffs filed a second claim with VTA. In the section asking for a general description of the loss, plaintiffs alleged that “the accident was caused by a dangerous condition of public property owned, controlled and maintained by VTA. In particular, claimants allege that the intersection was dangerous because there were inadequate passive, active and reactive countermeasures to prevent northbound drivers on N. 1st Street from turning left into the path of oncoming VTA light rail trains. In addition, those measures that did exist were either confusing, improperly placed, obscured and/or inadequately maintained, so that they did not and could not adequately warn Mr. Kurz not to turn left where he did or of the danger of doing so.” In the section for naming the VTA employee who caused the injury, plaintiffs wrote, “The driver of the light rail train that struck Mr. Kurz was Barbara Knatcher, ID# 2914. Claimants do not know the identities of any other VTA employees who were responsible for the dangerous condition of public property which caused the injury.” VTA rejected the claims.
In connection with their reply brief, plaintiffs have submitted unauthenticated copies of the written notices of rejection and, although the notices were not part of the record below, ask that this court take judicial notice of them pursuant to Evidence Code section 451, subdivision (d). The court denies the request. (See Cal. Rules of Court, rule 8.486.)
On July 11, 2008, plaintiffs filed a timely complaint naming VTA, the State of California, the California Department of Transportation, and Does 1 through 50 as defendants. The first cause of action alleged that VTA had maintained a dangerous condition of public property and the second cause of action alleged that VTA had been negligent in the design, construction, and maintenance of the accident site. The factual allegations of the complaint mirrored the allegations of the February 4, 2008 claim. On March 13, 2009, plaintiffs substituted Knatcher for Doe 1 but did not amend the complaint’s factual allegations or legal theories.
Neither the State of California nor the Department of Transportation is involved in the instant proceedings.
Several months after adding Knatcher as a named defendant, plaintiffs requested leave to amend the complaint to expand the allegations of the second cause of action for negligence. The proposed amended second cause of action revised the allegations to state that all defendants “except Barbara Knatcher” had been negligent in the “design, construction and maintenance” of the accident site and added that those defendants had also been negligent “in their training and supervision of defendant Barbara Knatcher.” Plaintiffs further alleged that those defendants had known about prior similar accidents involving Knatcher and knew of her “unfitness” to operate a light rail train yet continued to employ her. As to Knatcher, the proposed amended second cause of action alleged that she had been negligent in various ways, such as by failing to take evasive action by slowing or stopping the train, using “her right hand to operate the throttle/brake in violation of VTA regulations, ” “using her cell phone while operating the train, ” failing “to keep an adequate lookout, ” and failing “to sound the horns and/or bells on the train, as required by VTA policy.” The proposed first amended complaint also added a prayer for punitive damages against Knatcher.
Defendants opposed the request for leave. Defendants argued that the claim forms plaintiffs submitted to VTA alleged only problems with the accident site and did not include any mention of problems related to the operation of the train. Defendants also argued that the amendment was barred by the statute of limitations and that it should be rejected because it was a “sham.” The alleged sham was that the Doe amendment had been filed when the complaint contained allegations relating only to the condition of the intersection, for which Knatcher could not have had any responsibility, and the proposed first amended complaint dropped the intersection-related allegations against Knatcher, adding allegations pertaining to the operation of the train.
On October 13, 2009, the superior court granted plaintiffs leave to file the first amended complaint. The ruling was without prejudice to defendants’ basing a demurrer upon grounds they had raised in opposition to plaintiffs’ request for leave to file the amended pleading. Defendants then filed a demurrer, raising the same arguments they raised in opposition to plaintiffs’ request for leave to amend. The demurrer was directed to the “Second Cause of Action for Negligence Against Barbara Knatcher.” Defendants filed a separate motion to strike all the newly added negligence allegations.
The superior court sustained the demurrer without leave to amend. The court found, “When the claim is read as a whole, and particularly when the words ‘reactive countermeasures’ are considered, it is clear that the February 4, 2008 claim is not referring to any negligent actions or omissions by the driver. Plaintiffs’ second cause of action is not merely elaborating or adding further detail to a claim which was predicated on the same fundamental facts set forth in the complaint, but is rather seeking to premise civil liability on acts or omissions committed by a different person than those described in the claim.” In light of the ruling, the court found that the motion to strike was moot except as to the prayer for punitive damages against Knatcher, which the court granted.
Plaintiffs filed the instant petition for writ of mandate on May 7, 2010, arguing, as they did below, that the factual allegations of the amended second cause of action are fairly reflected in the two claims they filed with VTA. Defendants filed preliminary opposition. We issued an order to show cause and stayed trial proceedings pending further order of this court.
II. Discussion
A. Standard of Review
We rarely grant extraordinary relief at the pleading stage of a lawsuit. Mandamus will lie, however, when it appears that the superior court has deprived a party of an opportunity to plead his or her cause of action or defense and extraordinary relief may prevent a needless and expensive trial and reversal. (Taylor v. Superior Court (1979) 24 Cal.3d. 890, 894.) After examining the superior court’s ruling in the light of applicable statutory and decisional law, we find that the current matter presents such a case. (Ibid.)
“A demurrer tests the legal sufficiency of the complaint.” (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) Our review of an order sustaining a demurrer requires that we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. (Lazar v. Hertz Corp. (1999)69 Cal.App.4th 1494, 1501.) “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.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)
B. The First Amended Complaint Fairly Reflects the Facts Alleged in Plaintiffs’ Written Claims
Since VTA is a public entity, plaintiffs were bound to comply with the Government Claims Act in order to file suit against it. The Government Claims Act requires that, before filing a complaint for money or damages against a public entity, (i) the plaintiff must present the claim to the entity and (ii) the entity must reject the claim. (§§ 910, 911.2, 912.4, 912.6, 945.4.) Section 910 sets forth that which must be included in a claim. In brief, the claim must provide the date, place, and other circumstances of the occurrence that gave rise to the claim asserted and provide a “ ‘general description of the... injury, damage or loss incurred so far as it may be known at the time of presentation.’ ” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 445 (Stockett).)
Section 910 provides:
The purpose of the claim-filing requirement is to “provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455; see also Stockett, supra, 34 Cal.4th at p. 446.) Because the requirement is designed only to give a public entity “notice sufficient for it to investigate and evaluate the claim... the claims statute ‘should not be applied to snare the unwary where its purpose has been satisfied, ’ ” and the “claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what [the] entity is alleged to have done.’ ” (Stockett, supra, at p. 446.) “ ‘[S]o long as the policies of the claims statutes are effectuated, they should be given a liberal construction to permit full adjudication on the merits.’ ” (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 280.) On the other hand, a complaint is subject to dismissal “ ‘if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’ ” (Stockett, supra, at p. 447.)
In the present case, the superior court found that plaintiffs’ amended second cause of action added an entirely new theory of liability not fairly reflected by plaintiffs’ February 4, 2008 claim. Plaintiffs maintain that the court erred in considering only the February 4 claim and, in any event, either claim substantially complies with the Government Claims Act. Defendants argue that the February 4 claim superseded the January 29 claim and, since the February 4 claim specifically alleged problems related only to the accident site, the new allegations relating to the operation of the train are not fairly reflected therein. Defendants further argue that, even if both claims are operative, neither contained the allegations plaintiffs has added to the second cause of action.
As to defendants’ argument that the February 4 claim superseded the January 25 claim, we reject it. As plaintiffs point out, the pertinent code provision implies that the opposite is true. Section 910.6, subdivision (a) specifies, “A claim may be amended at any time before the expiration of the period designated in Section 911.2 or before final action thereon is taken by the board, whichever is later, if the claim as amended relates to the same transaction or occurrence which gave rise to the original claim. The amendment shall be considered a part of the original claim for all purposes.” (Italics added.) Section 910.6 contains no hint that an amendment should be read to supersede the original claim. Rather, it specifies that the amendment is “part of” the original claim. And plaintiffs’ written claims do not contain any suggestion that they intended the second claim to replace the first. Giving the two written claims a liberal construction to permit full adjudication on the merits, we conclude that the two claims must be read together. Accordingly, to the extent the court considered only the February 4 claim, that was error.
Defendants argue that the superior court’s ruling was correct because the only legal theory described in either claim involved the dangerous condition of the intersection. They point out that plaintiffs did not specify that they were claiming negligence with regard to the operation of the train. Although there is a smattering of language in some of the cases that suggests that each “theory of recovery” must have been reflected in a timely claim (see, e.g., Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776), the Government Code does not require a claimant to identify the particular legal theory upon which he or she intends to sue. It requires only a “general description” of the loss “so far as it may be known” at the time the claim is presented. (§ 910, subd. (d).) “While an allegation as to the legal cause of an accident may be an element of the tort which must be pled in a complaint, section 910 does not impose upon an injured claimant an obligation to include it in the claim. Nor does the [public entity], in its role of administering the [Government] Claims Act, have authority to amend, modify, or enlarge upon the provisions of the statutory scheme.” (Blair v. Superior Court (1990)218 Cal.App.3d 221, 225 (Blair).) A cause of action is barred only if “it alleges a factual basis for recovery which is not fairly reflected in the written claim.” (Nelson v. State of California (1982) 139 Cal.App.3d 72, 79 (Nelson), italics added.) Courts that decide whether a cause of action is or is not “fairly reflected” in the preceding notice of a claim must do so in light of the overarching policy of liberal interpretation in favor of adjudication.
Defendants cite several cases in which the courts found particular allegations were not fairly reflected in a preceding notice of a claim. For example, in Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431 (Fall River), the plaintiff sued the school district for injuries he suffered when a campus door struck him in the head. The claim stated that when the plaintiff was entering the building, “ ‘the door closed with sufficient force to slam [the plaintiff’s] head against the steel door frame. At the time of the accident, the door was in a dangerous and defective condition for several reasons, including, but not limited to the fact, the door closed with excessive force.’ ” (Id. at p. 434.) An amended complaint contained three causes of action, one related to the alleged dangerous condition of the door, the second alleged negligence maintenance of the premises, and the third alleged that “school district personnel negligently failed to supervise students who were engaged in ‘dangerous horse-play, ’ and that in the course of this play plaintiff fell in such a way that his head was caught between the door and the doorjamb.” (Ibid.) The appellate court issued a writ of mandate directing the superior court to grant defendant’s motion for judgment on the pleadings as to the third cause of action, holding that the third cause of action “patently attempts to premise liability on an entirely different factual basis than what was set forth in the tort claim.” (Id. at p. 435.) The claim would have alerted the defendant to the condition of the door, but it would not have raised any question pertaining to supervision of students. (Id. at p. 434.)
The other cases defendants cite are similar. In Connelly v. State of California (1970) 3 Cal.App.3d 744, the appellate court held that causes of action alleging that defendant’s employees had negligently released water from state-operated dams did not fairly reflect the facts contained in a claim, which charged that different employees had given inaccurate information about the expected flood level of the river. (Id. at p. 747.) In Nelson, supra, 139 Cal.App.3d at page 80, the claim alleged negligence in diagnosis and treatment of the plaintiff’s medical condition but the complaint added an allegation charging defendants with failing to seek assistance from medical professionals having the needed expertise. In Donohue v. State of California (1986) 178 Cal.App.3d 795, 803-804, the complaint alleged that the officer administering a driving test failed to use due care in directing the applicant in operating the vehicle when the claim alleged that the Department of Motor Vehicles had negligently permitted an uninsured driver to take the test.
Although a complaint is barred to the extent it alleges factual bases for liability not fairly reflected in the written claim, the claim need not specify each particular act or omission later proven to have caused the injury. (Blair, supra, 218 Cal.App.3d at p. 225.) A complaint’s exposition of a factual basis beyond that given in the claim is not fatal so long as the complaint is not based on an entirely different set of facts. (Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 278.) In Fall River, for example, the claim, which stated only that the door slammed the plaintiff’s head against the door frame and that the door was in a defective condition, was sufficient to alert the defendant to the possibility of a suit for negligent maintenance or for using a defective door, but insufficient to alert it to liability related to the supervision of students. (Fall River, supra, 206 Cal.App.3d at pp. 432-435.) In other words, it is only where there has been a “complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim” that courts have found the complaint barred. (Blair, supra, at p. 226.) So long as the claim would alert the defendant to the bases for liability alleged in a subsequent lawsuit, the suit may proceed.
In the present case, plaintiffs’ January 25, 2008 claim complied with the requirements of section 900, informing VTA that Eric Kurz was struck by a VTA light rail train at the intersection of Rosemary and North First Street on August 2, 2007, and that the employee who caused the accident was Barbara Knatcher. These simple facts were enough to alert VTA that it should investigate the potential for liability related to the operation of the train, which would include an inquiry into whether Knatcher had been negligent. It follows that the superior court erred in sustaining the demurrer on the ground that the factual basis for the second cause of action was not fairly reflected in plaintiffs’ timely filed claims.
C. Defendants’ Alternative Arguments Are Unavailing
In light of its ruling on defendants’ first argument, the superior court did not consider defendants’ remaining contentions. Defendants now maintain that those arguments are alternative bases for sustaining the demurrer. Defendants’ first alternative argument is that the amended second cause of action is barred by the statute of limitations. According to defendants, the amendment does not relate back to the filing of the original complaint because plaintiffs were never genuinely ignorant of Knatcher’s identity.
Under the relation-back doctrine, the general rule is that an amendment adding a previously unnamed defendant relates back to the date of the original complaint, and avoids the bar of the statute of limitations, if it: (1) rests on the same general set of facts as the original complaint; and (2) refers to the same accident and same injuries as the original complaint. (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 936-937.) The rule applies even where the amendment sets out a different legal theory or states a different cause of action. (Id. at p. 936; see also Marasco v. Wadsworth (1978) 21 Cal.3d 82, 86.) Although Code of Civil Procedure section 474 requires that a plaintiff have been “ignorant of the name” of a defendant in order to identify the defendant initially by a fictitious name, the section is liberally construed to include other kinds of ignorance. “Even a person whose identity was known to the plaintiff when the action was filed may be brought in under [Code of Civil Procedure] section 474 as a ‘Doe’ defendant if the plaintiff was initially unaware of that person’s true relationship to the injuries upon which the action was based [citation]; or if a change in law has indicated that persons not originally joined might also be held liable.” (Miller v. Thomas (1981) 121 Cal.App.3d 440, 444-445.)
While we can determine from the face of the pleading and documents of which we may take judicial notice that plaintiffs knew from the beginning who was operating the train that hit Eric Kurz, we cannot determine, without an inquiry into the facts, whether plaintiffs were actually aware, at the time they filed the original complaint, of her true relationship to the accident. Indeed, plaintiffs alleged in the original complaint that they were “ignorant of the true names and capacities of Defendants sued herein as Does 1 through 50, and Plaintiffs are further ignorant of the appropriate charging allegations and theories of liability with respect to said fictitiously named defendants....” Because we are reviewing an order sustaining a demurrer, which challenges only the legal sufficiency of the complaint, we must accept these facts as true. (Campbell v. Superior Court (1996) 44 Cal.App.4th 1308, 1310-1311.) Accordingly, we reject defendants’ relation-back argument.
Defendants’ final argument is that the first amended complaint is a “sham, ” or that it is based upon the “sham” Doe amendment filed in March 2009. The argument offers no basis for sustaining the demurrer.
The word “sham” means “trick, ” “hoax, ” or “fake.” (See Webster’s 3d New Internat. Dict. (1993) p. 2086, col. 1.) The purpose of the sham-pleading doctrine is to ferret out fake pleadings. The doctrine was explained in Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946: “ ‘Generally, after an amended pleading has been filed, courts will disregard the original pleading. [Citation.] [¶] However, an exception to this rule is... where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ [Citation.] The rationale for this rule is obvious. ‘A pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective.’ ”
In short, the sham-pleading doctrine applies when the allegations of the amended pleading can be shown, by examination of the prior pleading, to be untrue. For example, in Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, the plaintiff initially alleged that he was injured in a roadway adjacent to the sidewalk in front of defendants’ market. The superior court sustained the defendants’ demurrer on the ground that the defendants did not own the roadway. The plaintiff then amended the complaint to allege that he was on defendants’ premises when he was hurt. (Id. at p. 383.) The trial court looked past the amended pleading to conclude that the allegation that the accident occurred on the defendants’ property was false.
Defendants argue that the first amended complaint is improperly based upon the false Doe amendment “to try to get around the failure to plead operator error in the written claim and in the original complaint.” That is, defendants do not contend that plaintiffs have untruthfully alleged negligence against Knatcher in the amended pleading in order to get around truthful, but fatal, defects in the prior pleading. Rather, defendants’ concern is the opposite, namely that the prior pleading contained false allegations that were corrected by the amended pleading. Thus, this is not a situation to which the sham-pleading doctrine would apply. Furthermore, defendants’ argument pertaining to the falsity of the Doe amendment turns upon factual issues that are not a proper basis for demurrer. It follows that neither of defendants’ alternative arguments provides a basis for the trial court’s ruling.
In their return, defendants cite Knatcher’s deposition transcripts--copies of which the superior court quite correctly refused to take judicial notice. We have not considered that material.
III. Disposition
Let a peremptory writ of mandate issue directing the superior court to vacate the order sustaining the demurrer to the second cause of action of the first amended complaint and to enter a new order overruling the demurrer and requiring real parties in interest to answer the first amended complaint within 30 days. The stay of further proceedings below is vacated. Costs in this original proceeding are awarded to petitioners.
WE CONCUR: Elia, J., Duffy, J.
“A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following:
“(a) The name and post office address of the claimant.
“(b) The post office address to which the person presenting the claim desires notices to be sent.
“(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.
“(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.
“(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.
“(f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.”