Filed 7/14/16 Barron v. Galvin CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


SHELLY BARRON et al.,
                                                                                           F071085
         Plaintiffs and Appellants,
                                                                           (Super. Ct. No. 14CECG01179)
                   v.

GERALD GALVIN,                                                                           OPINION
         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Fresno County. M. Bruce
Smith, Judge.
         Law Offices of Jeffrey D. Bohn, Jeffrey D. Bohn and Eric V. Grijalva for
Plaintiffs and Appellants.
         Wilkins, Drolshagen & Czeshinski, Michael J. Czeshinski and James H. Wilkins
for Defendant and Respondent.
                                                        -ooOoo-
       Plaintiffs Shelly and Vincent Barron appeal from a judgment entered against them
following the sustaining of a demurrer to plaintiffs’ first amended complaint without
leave to amend. Plaintiffs were injured in an automobile accident in Fresno when their
vehicle was allegedly rear-ended by a vehicle driven by defendant Gerald Galvin, who
was an employee of the City of Mendota. In their original complaint, plaintiffs named as
defendants both Galvin and the City of Mendota (together defendants). In one of the
negligence counts in that pleading, plaintiffs alleged that Galvin was acting in the scope
of his employment with the City of Mendota at the time of the accident. Defendants
demurred to the original complaint on the ground that no tort claim had been filed and,
therefore, neither the City of Mendota nor any public employee acting in the scope of
employment with the City of Mendota could be liable. In response to that demurrer,
plaintiffs filed a first amended complaint alleging negligence against Galvin individually.
The first amended complaint omitted the prior allegation that Galvin was acting within
the scope of his employment with the City of Mendota. Galvin demurred to the first
amended complaint, arguing that the omitted scope-of-employment allegation should be
read into the first amended complaint under the rule against sham pleading. The trial
court agreed, and it sustained the demurrer to the first amended complaint without leave
to amend. Plaintiffs appeal.
       As we explain more fully below, we believe the trial court erred in sustaining the
demurrer under the sham pleading doctrine. Plaintiffs were permitted to plead in the
alternative, and they appear to have done so in their original complaint. The scope of
employment allegation was alleged as part of one count, but not the other. The removal
of one factual basis of liability (i.e., that Galvin was acting in the scope of his
employment with the City of Mendota) did not preclude plaintiffs from pursuing in good
faith the alternative claim for individual liability. For this reason, we reverse the
judgment with instructions that the trial court enter a new order overruling the demurrer
to the first amended complaint.

                                               2.
                       FACTS AND PROCEDURAL HISTORY
       Plaintiffs’ original complaint was filed on April 28, 2014. It described the setting
of the accident as follows: “On or about August 1, 2012 at or about the hour 4:40 p.m.,
plaintiff Shelly Barron was operating her vehicle, with her passenger Vincent Barron,
eastbound on Herndon Avenue in the number one (1) lane.” The accident took place on
Herndon Avenue, “approximately 400 feet west of N. Cedar Ave., in the County of
Fresno.” Allegedly, the accident occurred when plaintiffs’ vehicle “was forcibly rear-
ended by a vehicle operated by defendant Gerald Galvin.”
       The original complaint and the first amended complaint were on Judicial Council
form pleadings. Both were unverified pleadings. After the preliminary allegations of
paragraphs 1–9, paragraph 10 of the form pleading allowed boxes to be checked for the
particular causes of action that would be attached. In paragraph 10 of the original
complaint, plaintiffs checked the boxes for: (1) “Motor Vehicle,” (2) “General
Negligence” and (3) “Other (specify): Negligent Entrustment.” A separate cause of
action form was attached for “Motor Vehicle,” which was numbered as the first cause of
action. A separate cause of action form was also attached for “General Negligence,”
which was numbered as the second cause of action.
       In the first cause of action, for motor vehicle negligence, the original complaint
alleged that defendants were negligent in causing the automobile accident. Under
paragraph MV-2.b. of said cause of action, plaintiffs checked the box that stated “The
defendants who employed the persons who operated a motor vehicle in the course of their
employment are (names),” and there inserted “City of Mendota.” Other boxes were
checked in the same paragraph to allege that the City of Mendota also “entrusted” and/or
gave “permission” for the vehicle to be operated.
       In the second cause of action, for general negligence, it was likewise alleged that
defendants’ negligence caused the automobile accident. The general negligence cause of
action included much more detailed allegations about the accident, including that the

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accident occurred “when plaintiffs’ vehicle was forcibly rear-ended by a vehicle operated
by defendant Gerald Galvin, under the permission of the owner, defendant City of
Mendota Police Department, when he negligently failed to apply his brakes in response to
the decreasing speed of traffic in front of him.” Thus, in addition to asserting Galvin’s
negligent failure to apply his brakes, the second cause of action reiterated the allegations
that the City of Mendota was also responsible for negligently entrusting and/or permitting
Galvin to drive the vehicle. However, in contrast to the first cause of action, the second
cause of action did not allege that Galvin was acting within the scope of his employment
with the City of Mendota at the time of the accident.
       On August 20, 2014, defendants filed a general demurrer to the original complaint.
The demurrer was made on the following ground: “Defendant City of Mendota is a
public entity. Gerald Galvin is the City’s Chief of Police. A complaint naming a public
entity as a defendant to a tort action must allege compliance with the claims failing
requirements of the Government Claims Act. The same rule applies to complaints
naming a public employee as a Defendant. The Complaint does not allege facts of
compliance relative to either Defendant.”
       On September 3, 2014, plaintiffs responded to the demurrer by filing a first
amended complaint, and also by dismissing the City of Mendota.
       The first amended complaint continued to allege negligence against Galvin
individually, but the City of Mendota was no longer named as a defendant. Attached to
the first amended complaint were the same two cause of action forms—the first cause of
action for motor vehicle negligence and the second cause of action for general
negligence. However, the first cause of action in the first amended complaint omitted the
allegation contained in the original pleading that Galvin was acting in the scope of his
employment with the City of Mendota. Additionally, neither cause of action in the first
amended complaint alleged that the City of Mendota negligently entrusted or negligently



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permitted the use of the vehicle.1 Thus, the first amended complaint was solely against
Galvin individually.
       On October 20, 2014, Galvin filed a demurrer to the first amended complaint,
arguing that the first amended complaint was a sham pleading, and that the facts alleged
in the original complaint (regarding scope of employment) should be read into the first
amended complaint. According to Galvin’s demurrer, once the scope-of-employment
allegation is read into the first amended complaint, the demurrer would have to be
sustained based on plaintiffs’ failure to allege compliance with the government claim
statute.2
       Plaintiffs opposed the demurrer, explaining to the trial court that the first amended
complaint was not inconsistent with the original complaint, since only the first cause of
action had alleged that Galvin was acting in the scope of his employment with the City of
Mendota. The second cause of action did not so allege and was not premised on an
employer-employee relationship. As plaintiffs further explained, “the [first amended
complaint] is not a sham pleading because it only omitted an alternate factual allegation
contained in the previous initial Complaint.” The trial court disagreed with plaintiffs’



1        The first amended complaint included broad Doe allegations that continued to leave open
the possibility that Galvin was operating the vehicle in the scope of employment or agency with
someone. Since the City of Mendota was dismissed and cannot be liable since no tort claim was
filed, the Doe allegations are arguably problematic as no other potential employer or principal
was mentioned. Nevertheless, although the Doe allegations create some uncertainties, they do
not appear to be fatal to the causes of action or otherwise reflect a sham attempt to abuse the
process. Of course, if necessary the trial court may allow the allegations to be clarified by
subsequent amendment, whether on motion to amend or in response to a special demurrer or
motion to strike.
2       Under Government Code section 950.2, a cause of action against a public employee for
injury resulting from an act or omission in the scope of his employment as a public employee is
barred if an action against the employing public entity for such injury would be barred for failure
to comply with the tort claims statute. “In other words, a claim must be presented to the
employing entity in order to sue the employee if a claim would be required to sue the entity.” (3
Witkin, Cal. Procedure (5th ed. 2008) Actions, § 252, p. 334.)


                                                5.
analysis and sustained Galvin’s demurrer to the first amended complaint without leave to
amend.
       A judgment for defendants was entered on December 16, 2014. Plaintiffs notice
of appeal timely followed.
                                      DISCUSSION
I.     Standard of Review
       On appeal from a judgment dismissing an action after sustaining a demurrer, we
review de novo whether the complaint states facts sufficient to constitute a cause of
action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) Where a
demurrer is sustained without leave to amend, we decide whether there is a reasonable
possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) If it can be, we will conclude the trial court abused its discretion in
sustaining the demurrer without leave. (Ibid.)
       Generally speaking, after an amended pleading is filed, the original pleading is
superseded (Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th
929, 946), and courts will assume the truth of the factual allegations in the amended
pleading for purposes of demurrer (Owens v. Kings Supermarket (1988) 198 Cal.App.3d
379, 383). However, under the sham pleading exception to these rules, “‘admissions in
an original complaint … remain within the court’s cognizance and the alteration of such
statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff’s
case will not be accepted.’” (Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1061.)
Where a plaintiff attempts to avoid the destructive allegations in a prior complaint by
omitting them without explanation, or by pleading facts inconsistent with such prior
allegations, the court may then examine the prior complaint to ascertain whether the
amended complaint is merely a sham. (Vallejo Development Co. v. Beck Development
Co., supra, at p. 946.) Absent an adequate explanation, the court may disregard the
inconsistent allegations and read into the amended complaint the allegations of the

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superseded complaint. (Owens v. Kings Supermarket, supra, at p. 384; accord, Banis
Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.) If a trial court
denies leave to amend based on application of the rule against sham pleading, we review
the denial of leave for abuse of discretion. (Vallejo Development Co. v. Beck
Development Co., supra, at p. 946.)
II.    The Sham Pleading Doctrine Was Inapplicable
       As summarized above, under the sham pleading doctrine, facts that are fatal to the
original complaint cannot simply be omitted without explanation. (Hahn v. Mirda (2007)
147 Cal.App.4th 740, 751.) “A pleader cannot circumvent prior admissions by the easy
device of amending a pleading without explanation.” (Womack v. Lovell (2015) 237
Cal.App.4th 772, 787.) The purpose of the doctrine is to enable the courts to prevent an
abuse of process. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 426.) The
rationale is clear: It prevents a plaintiff from being able to play fast and loose with the
truth and thereby to breathe life into a dead complaint by omitting the relevant facts that
made his previous complaint defective. (See Vallejo Development Co. v. Beck
Development Co., supra, 24 Cal.App.4th at p. 946.)
       However, the doctrine was never intended to prevent honest complainants from
correcting erroneous allegations or to prevent the correction of ambiguous facts. (Deveny
v. Entropin, Inc., supra, 139 Cal.App.4th at p. 426.) Nor was it meant to prevent the
removal, in good faith, of an alternative factual allegation that proved to be erroneous or
unsupportable. (Hahn v. Mirda, supra, 147 Cal.App.4th at p. 751.) Rather, the sham
pleading doctrine was meant for extreme cases in order to prevent abuses. It “may not be
indiscriminately applied; it ‘must be taken together with its purpose, which is to prevent
amended pleading which is only a sham, when it is apparent that no cause of action can
be stated truthfully.’” (Amarel v. Connell (1988) 202 Cal.App.3d 137, 144; see Avalon
Painting Co. v. Alert Lbr. Co. (1965) 234 Cal.App.2d 178, 185 [sham pleading rule “does
not exist in a vacuum and cannot be mechanically applied”].)

                                              7.
       In Hahn v. Mirda, the prior complaint alleged in the alternative that the defendant
doctor did inform other treating physicians that the plaintiff did not have recurrent breast
cancer, and also that the defendant doctor did not inform other treating physicians that the
plaintiff did not have recurrent breast cancer. (Hahn v. Mirda, supra, 147 Cal.App.4th at
pp. 750–751.) In an amended pleading, one of these alternative factual scenarios was
dropped. The Court of Appeal concluded that the sham pleading doctrine was not
applicable under the circumstances, explaining as follows: “Here the second amended
complaint and the third amended complaint were consistent. Both alleged that on or
about February 6, 2002, [the defendant doctor] told [other treating physicians] that [the
plaintiff] did not have recurrent breast cancer. While the third amended complaint
omitted the alternate allegation that [the defendant doctor] did not tell [other treating
physicians] that [the plaintiff] did not have breast cancer, there is no indication that
omission was made in bad faith or that [the plaintiff] was engaged in an abuse of process.
Rather, read in context, it appears [the plaintiff] was omitting an alternate factual
allegation that had proven to be erroneous. The sham pleading doctrine was not
applicable here.” (Id. at p. 751, italics added.)
       Similarly, in the present case, it appears that plaintiffs’ original complaint asserted
two distinct factual allegations or counts in the alternative—one that was premised on
Galvin being in the scope of his employment with the City of Mendota and one that was
not. In the motor vehicle count, the alleged factual premise was that Galvin was driving
in the scope of his employment with the City of Mendota. On the other hand, in the
general negligence count, plaintiffs did not allege that Galvin was acting in the scope of
his employment with the City of Mendota. Rather, in that count, Galvin was allegedly
liable as an individual for his own negligence, with the City of Mendota allegedly
concurrently responsible for reasons other than Galvin being in the scope of his
employment, such as negligent entrustment and/or permission. Thus, when plaintiffs
dropped the allegation that Galvin acted in the scope of his employment with the City of

                                              8.
Mendota, they simply removed one distinct alternative allegation, leaving the other intact.
Plaintiffs still had their claim against Galvin individually, and were permitted to pursue it
under the first amended complaint. Nor was there any indication here that the omission
of the scope-of-employment allegation was in bad faith or an abuse of process.
Following Hahn v. Mirda, supra, 147 Cal.App.4th 740, we conclude the sham pleading
doctrine was inapplicable in this case.
       In support of the conclusion we have reached herein, we note that it is well
established that “[p]leading alternative counts is appropriate when the plaintiff is … in
doubt about some of the ultimate facts, which may perhaps be largely within the
knowledge of the defendant. The facts are inconsistently alleged because the plaintiff
does not know which of the alternatives is true or can be established by the evidence.” (4
Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 403, p. 543; accord, Williams v.
Southern California Gas Co. (2009) 176 Cal.App.4th 591, 598 [alternative factual
allegations relying on alternative legal theories do not run afoul of truthful pleading];
Wells v. Brown (1950) 97 Cal.App.2d 361, 364 [there is no prohibition against pleading
inconsistent counts in as many ways as a plaintiff believes may be supported by the
evidence].) In substance, this appears to be precisely what occurred here: inconsistent
counts or allegations were set forth, one was dropped and the other remained. Thus, the
subsequent pleading was not inconsistent with the original one and did not trigger the rule
against sham pleading. In context, as in Hahn v. Mirda, plaintiffs were simply “omitting
an alternate factual allegation that had proven to be erroneous” (Hahn v. Mirda, supra,
147 Cal.App.4th at p. 751) or that was unavailable.
       Finally, we note that the ultimate factual issue of whether Galvin was acting in the
scope of his employment with the City of Mendota at the time of the accident would not
likely have been within plaintiffs’ sphere of knowledge, which supports our construction
of the scope-of-employment allegation: Namely, that it was not so much a conclusive
admission of fact as it was an alternative factual basis for liability about which plaintiffs

                                              9.
may genuinely have been mistaken. (See, e.g., Avalon Painting Co. v. Alert Lumber Co.,
supra, 234 Cal.App.2d at pp. 184–185 [omission of agency allegation did not carry onus
of untruthfulness or sham where ultimate determination of existence of agency
relationship was not clear or basic, but was a complex matter that would depend on
evidence]; Amarel v. Connell, supra, 202 Cal.App.3d at p. 145 [sham doctrine
inapplicable where omitted allegations merely went to manner of certain business
practices and, in any event, were peculiarly within the knowledge of the defendants].)
       For all of these reasons, the sham pleading doctrine should not have been applied
in this case. Plaintiffs’ first amended complaint adequately stated a cause of action for
negligence against Galvin. Galvin may seek to defend on the ground that he was acting
in the scope of his employment with the City of Mendota, but that of course will be a
matter of proof.
                                     DISPOSITION
       The judgment is reversed and the matter is remanded to the trial court with
directions to enter a new order overruling the demurrer to plaintiffs’ first amended
complaint. Costs on appeal are awarded to plaintiffs.


                                                         ___________________________
                                                                            KANE, J.
WE CONCUR:


 __________________________
HILL, P.J.


 __________________________
GOMES, J.




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