Judge: Andrew E. Cooper, Case: 23CHCV01736, Date: 2023-11-16 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 23CHCV01736    Hearing Date: November 16, 2023    Dept: F51

DEMURRER

Demurrer Filed: 9/26/23

MOVING PARTY: Defendant City of Los Angeles (“Moving Defendant”)

RESPONDING PARTY: Plaintiffs Ovidio M. Gonzalez; Mayra E. Gonzalez; Eli A. Gonzalez; and Anthony S. Camacho (collectively, “Plaintiffs”)

NOTICE: OK

RELIEF REQUESTED: Moving Defendant demurs Plaintiffs’ entire first amended complaint (“FAC”).

TENTATIVE RULING: The demurrer is overruled. Moving Defendant to file and serve its answer to Plaintiffs’ FAC within 30 days.

REQUEST FOR JUDICIAL NOTICE: Moving Defendant’s request for judicial notice is denied.

Moving Defendant is reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND 

This is a personal injury action in which Plaintiffs allege that on 11/14/21, nonmoving defendant Hunter Kardinaal, a Los Angeles Police Department officer, caused an automobile collision between his patrol car and Plaintiffs’ vehicle, thereby injuring Plaintiffs. (FAC ¶¶ 3, 9, 12.) Plaintiffs allege that on 5/2/22, they mailed Moving Defendant with claims for damages, which were subsequently deemed as rejected by Moving Defendant. (Id. at ¶¶ 6–7.)

On 6/14/23, Plaintiffs filed their original complaint, alleging against Moving Defendant four counts of Motor Vehicle Negligence. On 8/31/23, Plaintiffs filed their FAC against both Defendants, alleging the following causes of action: (1) Motor Vehicle Negligence; and (2) General Negligence.

On 9/26/23, Moving Defendant filed the instant demurrer and request for judicial notice. On 11/1/23, Plaintiffs filed their opposition. On 11/9/23, Moving Defendant filed its reply.

ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer based on any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Moving Defendant demurs to Plaintiffs’ entire complaint, arguing that the “action against the City is jurisdictionally barred by Plaintiffs’ failure to file a government claim with the City prior to filing suit as required by Government Code section 905.2, subdivisions (a)-(b), and section 911.2, subdivision (a).” (Dem. 2:18–20.)

A.    Meet and Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Moving Defendant’s counsel declares that on 7/6/23, she sent Plaintiffs’ attorney a meet and confer letter regarding the pleading deficiencies in Plaintiffs’ original complaint. (Decl. of Margaret Shikibu ¶ 4.) On 8/21/23, counsel for the parties met and conferred telephonically, and “agreed that Plaintiffs would be given time to file an amended complaint, and that the City would demur to the amended complaint.” (Id. at ¶ 8.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Government Claims Act

Under the Government Claims Act, claims against a public entity for personal injury and property damage must be presented within six months after accrual; all other claims must be presented within a year. (Gov. Code § 900 et seq.) “A claim … shall be presented to a local public entity by any of the following means: (1) Delivering it to the clerk, secretary, or auditor thereof; (2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office.” (Gov. Code § 915, subd. (a).) If presented by mail, “the claim, amendment, application, or notice shall be deposited in the United States post office, a mailbox, sub-post office, substation, mail chute, or other similar facility regularly maintained by the government of the United States, in a sealed envelope, properly addressed, with postage paid. The claim, amendment, application, or notice shall be deemed to have been presented and received at the time of the deposit.” (Gov. Code § 915.2, subd. (a).)

“A cause of action that is subject to the statutory claim procedure must allege either that the plaintiff complied with the claims presentation requirement, or that a recognized exception or excuse for noncompliance exists. A plaintiff may allege compliance with the claims requirements by including a general allegation that he or she timely complied with the claims statute.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.)

Here, Plaintiffs allege that “On or about May 2, 2022, all Plaintiffs served a City of Los Angeles Damages Claim against the municipality, Defendants CITY OF LOS ANGELES. Plaintiffs have exhausted all administrative responsibilities. … A copy of the proof of mailing is attached to this First Amended Complaint as Exhibit ‘A’.” (FAC ¶ 7.) In the cited attachment, Plaintiffs’ claims documents contain a Certified Mail Receipt from the U.S. Postal Service, certifying that the papers were mailed to the City Clerk at 200 N. Spring Street, Room 395, City Hall, Los Angeles, CA 90012. (Ex. A to FAC.)

Moving Defendant argues on demurrer, and requests that the Court take judicial notice, that it “has no record of ever receiving a government claim from or on behalf of any one of the four Plaintiffs.” (Dem. 4:12–13.) “If a plaintiff alleges compliance with the claims presentation requirement, but public records do not reflect compliance, the government entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity’s records do not show compliance.” (Gong, 226 Cal.App.4th at 376, citing Fowler v. Howell (1986) 42 Cal.App.4th 746, 752.)

Here, Moving Defendant argues that “the Court may properly take judicial notice of the fact the City’s records do not reflect Plaintiff’s compliance with the claims presentation requirements of the Government Claims Act—and the City’s demurrer to the FAC should be sustained without leave to amend.” (Dem. 7:5–7.) “If the claims had been sent on or about May 2, 2022 via U.S.P.S. Certified Mail as Plaintiffs seem to suggest, USPS Tracking would at least show that the certified mail had been deposited with the U.S. Postal Service.” (Id. at 7:27–8:2.)

Plaintiffs argue in opposition that “while Defendant CITY alleges to have not received the mailed claims, Plaintiffs deposited all claim forms with USPS and are thus deemed received.” (Pls.’ Opp. 4:21–22, citing Gov. Code § 915.2, subd. (a).) Moreover, Plaintiffs argue that it is sufficient that they have alleged in their FAC “sufficient and specific facts establishing that Plaintiffs substantially complied with the Government Tort Claim.” (Id. at 4:17–18, citing Code Civ. Proc. § 459 “In pleading the performance of conditions precedent under a statute … it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part required thereby.”)

Plaintiffs further assert that Moving Defendant’s reliance on Gong and Fowler is misplaced because in those cases, the Court took judicial notice of the undisputed facts that the claimant plaintiffs failed to comply with the presentation requirements under the Government Claims Act. (Pls.’ Opp. 6:1–2.) In Gong, the Court of Appeal took judicial notice that the plaintiff failed to allege the same facts in her complaint as in her prior claims against the defendant City and found that “though the prelitigation claims in the present case were timely filed with the City, they do not ‘fairly reflect’ causes of actions subsequently brought by [plaintiffs] appellants based on [defendant] Tran's alleged tortious conduct.” (226 Cal.App.4th at 375–376.) In Fowler, both the trial court and Court of Appeal took judicial notice of previous factual findings adopted by the California State Personnel Board finding that because the defendant acted within the scope of her employment as a California Highway Patrol officer, the plaintiff was required to file a claim pursuant to the Government Claims Act, which he undisputedly failed to do prior to filing suit. (42 Cal.App.4th at 1749–1750.)

The Court agrees with Plaintiffs and finds that here, unlike in Gong or Fowler, Plaintiffs acknowledge that their claims are subject to the Government Claims Act and have sufficiently alleged compliance with the claims presentation requirements therein. (FAC ¶¶ 6–7; Gov. Code § 915.2, subd. (a); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.) Additionally, unlike in Gong or Fowler, here, the facts alleged in Plaintiffs’ claims to Moving Defendant “fairly reflect” the facts alleged in the FAC, and there are no prior public records nor factual determinations relating to Plaintiffs’ instant claims. (Ex. A to FAC; FAC ¶ 9.) The Court therefore exercises its discretion to deny Moving Defendant’s request for judicial notice of its contentions that it has no record of receiving Plaintiffs’ claims, as this is a factual determination which the Court declines to make at the demurrer stage.

Based on the foregoing, the demurrer is overruled. The Court takes note of the parties’ arguments regarding timeliness of Plaintiffs’ claims but finds them moot considering the foregoing analysis.

CONCLUSION 

The demurrer is overruled. Moving Defendant to file and serve its answer to Plaintiffs’ FAC within 30 days.