Judge: Andrew E. Cooper, Case: 24CHCV00587, Date: 2024-12-03 Tentative Ruling

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Case Number: 24CHCV00587    Hearing Date: December 3, 2024    Dept: F51

DEMURRER

Demurrer Filed: 8/5/24

MOVING PARTY: Defendant Los Angeles County Metropolitan Transportation Authority (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Nathan Lewellen (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Moving Defendant demurs against Plaintiff’s complaint.

TENTATIVE RULING: The demurrer is sustained without leave to amend.

EVIDENTIARY OBJECTIONS: The Court

BACKGROUND

This is a premises liability action in which Plaintiff alleges that on 8/13/23, “Plaintiff's motorcycle crashed as a result of his motorcycle encountering a dangerous condition of public property.” (Compl. ¶ 2.)

On 2/26/24, Plaintiff filed his complaint against nonmoving defendants County of Los Angeles, State of California, and Caltrans, alleging the following causes of action: (1) Dangerous Condition of Public Property; and (2) General Negligence.

On 5/22/24, Plaintiff filed an amendment to his complaint to designate Moving Defendant as previously unnamed Doe defendant 77. On 8/5/24, Moving Defendant filed the instant demurrer. On 9/30/24, Plaintiff filed his opposition thereto. On 11/4/24, Moving Defendant filed its reply.

On 11/12/24, Plaintiff’s counsel filed a supplemental declaration in support of Plaintiff’s opposition. On 11/18/24, Moving Defendant filed its objections thereto.

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ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of 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 Plaintiff’s entire complaint on the basis that Plaintiff “does not allege presenting a government claim for damages to the MTA,” and therefore has not alleged facts sufficient to support his claims against Moving Defendant. (Dem. 5:1–2.)

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 8/5/24, he telephoned Plaintiff’s counsel in an attempt to resolve the issues raised in the instant demurrer, but was unable to reach Plaintiff’s counsel. (Decl. of Allen L. Thomas 6:11–15.) As this effort was made on the same date that the instant demurrer was filed, the Court finds that counsel did not sufficiently meet and confer. However, “a determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41, subd. (a)(4).)

B.     Claims Presentation

Actions brought against government entities are subject to the Government Claims Act, which typically requires written claims for damages against the public entity to be timely presented to that entity for resolution prior to filing suit. (Gov. Code § 900 et seq.; Gov. Code § 911.2, subd. (a).) To satisfy the exhaustion of administrative remedies requirement, “the exact issue raised in the lawsuit must have been presented to the administrative agency so that it will have had an opportunity to act and render the litigation unnecessary.” (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 441.)

In his complaint, Plaintiff alleges the following: “On or about January 15, 2024, Plaintiff timely served all known relevant governmental entities herein, and specifically Defendant County of Los Angeles, State of California/Caltrans with a Claim for Damages pursuant to California Government Code § 910 and 911, et seq., and that said claims have each been denied, or will have been denied by said public entities, or have been, or will be, deemed denied and/or rejected by operation of law pursuant to Government Code § 912.4, and/or applicable Federal codes.” (Compl. ¶ 29.)

Here, Moving Defendant argues that Plaintiff has not satisfied the claims presentation requirement because Plaintiff “does not allege presenting a government claim for damages to the MTA. Failure to comply with the claims statute is fatal and bars plaintiff from pursuing his action against the MTA.” (Dem. 5:1–3.)

In opposition, Plaintiff argues that “Plaintiff did file a claim against the MTA on August 13, 2024, as evidenced by Exhibit ‘A’ attached hereto. Defendant MTA failed to respond to that Government Notice for a period in excess of 45 days. Therefore, that claim was denied by operation of law thereby giving Plaintiff the right wo [sic] serve MTA with this complaint. (Pl.’s Opp. 4:7–11, citing Ex. A to Decl. of Michael R. Rhames.)

In reply, Moving Defendant maintains that any purported claim presented to Moving Defendant has not been alleged within Plaintiff’s complaint. The Court agrees. Even if the Court were to consider the claim proffered by Plaintiff in his opposition, this claim appears to have been filed after the statutory deadline to do so, and after the instant demurrer was served. (Gov. Code § 911.2, subd. (a) [A personal injury claim must be presented within six months of the accrual of the cause of action].) The Court therefore declines to consider any evidence extrinsic to the “four corners” of Plaintiff’s complaint or properly before the Court via a request for judicial notice. (Cal Rules of Ct., rule 3.1113(l).)

Furthermore, the Court agrees with Moving Defendant that Plaintiff’s counsel’s supplemental declaration amounts to an unauthorized sur-reply, a practice which is disfavored by this Court. Accordingly, the Court disregards this supplemental declaration. Based on the foregoing, the Court finds that Plaintiff has failed to allege facts sufficient to support his claims against Moving Defendant. Accordingly, the demurrer is sustained.

C.    Leave To Amend

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, the Court notes that Plaintiff makes no showing of a reasonable possibility that he may successfully remedy the underlying deficiencies in the complaint, namely that he presented a timely government claim to Moving Defendant prior to filing suit. Accordingly, the demurrer is sustained without leave to amend.

CONCLUSION

The demurrer is sustained without leave to amend.