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>TCU15-6027 Dependable Tow v. Dept. of California Highway Patrol

TCU15-6027 Dependable Tow v. Dept. of California Highway Patrol 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch

Defendant’s Motion for Judgment on the Pleadings is granted with leave to amend.

As an initial matter, in ruling on the prior demurrer, this court examined whether or not Plaintiff alleged a statute to support governmental liability. The court determined that Plaintiff had relied on Govt Code §815.2, so that the causes of action were adequately pled. The Court did not examine whether or not the underlying statutes provided for a mandatory duty. Thus, the issues set forth in the present motion, which contends that no mandatory duties are set forth by the statutes delineated in the First Amended Complaint, has not yet been decided by this Court.

The California Tort Claims Act provides that “[a] public entity is not liable for an injury,” “[e]xcept as otherwise provided by statute.” (Gov.Code, § 815, subd. (a).) Thus, the intent of the Tort Claims Act is to limit potential governmental liability, not expand it. Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127. So, this court must examine whether or not the statutes set forth by Plaintiff establish liability for the Defendant.

Government Code section 815.6 makes a public entity directly liable for its breach of a statutory “mandatory duty.” Government Code section 815.2, subdivision (a), makes a public entity vicariously liable for its employee's negligent acts or omissions within the scope of employment. Here, the First Amended Complaint cites to various statutes to support governmental liability under Govt Code § 815.2.

The First Amended Complaint cites to Govt Code § 815.5. But, no such statute exists. Thus, there can be no liability under that provision.

The First Amended Complaint also cites to Govt Code § 820.8. However, this is an immunity statute and not a source of liability.

Next, the First Amended Complaint cites to Public Contracts Code §100. This statute is primarily a declaration of legislative intent. To determine whether or not there is a private right of action, the Court must use the legislative intent process. See Crusader Ins. v. Scottsdale Ins. (1997) 54 Cal.App.4th 121.

There are no clearly delineated mandatory duties set forth in PCC §100. Rather, the statute sets forth the objectives of the law, which are primarily to eliminate favoritism and bias in the bidding process. However, while there may not be a mandatory duty under this provision to support liability under Govt Code §815.6, the California Supreme Court has stated that violations of PCC §100 may support claims for promissory estoppel. See Kajima/Ray Wilson v. Los Angeles County Metropolitan Transp. Authority (2000), 23 Cal.4th 305. Thus, because it is not impossible to state a cause of action based on a violation of PCC §100, leave to amend is granted.

Lastly, the First Amended Complaint cites to Govt Code § 14836. This statute is also a statement of legislative declaration and intent.

The only words that have instruction in the statute are “essential” and “should.” However, the former term is used as an adjective and not a directive verb. Further, in using the latter term, the legislature chose to use the world “should,” rather than “shall,” which does not create a requirement. To further support this conclusion, the Court notes that the legislature chose to utilize mandatory language a mere two code provisions further. Govt Code §14838 uses mandatory language such as “shall,” but no such language is found in Govt Code §14836.

The Court determines that the face of the complaint does not set forth direct or vicarious liability statutes upon which to support liability. However, leave to amend is granted in the event Plaintiff can cite to a statute which provides for mandatory duties or other claims premised on the facts set forth in the First Amended Complaint.

Any amended complaint must be served and filed by September 7, 2016.

Defendant’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 582-7835 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.