Judge: Andrew E. Cooper, Case: 24CHCV00630, Date: 2024-11-04 Tentative Ruling

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Case Number: 24CHCV00630    Hearing Date: November 4, 2024    Dept: F51

DEMURRER

Demurrer filed: 6/5/24

MOVING PARTY: Defendant California Department of Corrections and Rehabilitation (“Defendant”)

RESPONDING PARTY: Plaintiff Jason Velasquez (“Plaintiff”)

NOTICE: OK

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

TENTATIVE RULING: The demurrer is sustained with 30 days leave to amend. Defendant’s request for judicial notice is granted.

BACKGROUND 

This is a personal injury action in which Plaintiff alleges that on 12/6/19, while he was an inmate exercising in the yard at Defendant’s correctional facility, he was physically attacked by three to four fellow inmates. (Compl. ¶¶ 9–10.) “As he was brutally attacked, suddenly Defendant CDCR Correctional Officers, DOES 1-10, at the tower noticed that he was being attacked. DOES 1-10 took action by shooting at Plaintiff and while the inmates were attacking him. Plaintiff was shot with wooden bullets on the side of his head even though he was the victim of an attack by the gang member inmates. … As a result of being shot with said wooden bullets, Plaintiff lost all use of one eye and is now legally blind.” (Id. at ¶¶ 11–12.)

On 3/1/24, Plaintiff filed his complaint, alleging against Defendant the following causes of action: (1) Unreasonable Search and Seizure— Excessive Force (42 U.S.C. § 1983); (2) Unreasonable Search and Seizure— Denial of Medical Care (42 U.S.C. § 1983); (3) Governmental Liability for Unconstitutional Custom or Policy (42 U.S.C. § 1983); (4) Governmental Liability – Failure to Train (42 U.S.C. § 1983); (5) Negligence (Gov. Code § 820 and California Common Law); (6) Violation of Bane Act (Civ. Code § 52.1); and (7) Battery (Gov. Code § 820 and California Common Law).

On 6/5/24, Defendant filed the instant demurrer. On 10/22/24, Plaintiff filed his opposition. On 10/25/24, Defendant filed its reply.

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, Defendant demurs to Plaintiff’s entire complaint on the basis that Plaintiff fails¿to allege facts sufficient to state any of the causes of action therein.

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, Defendant’s counsel declares that on 4/29/24, 5/29/24, 5/31/24, 6/3/24, 6/4/24, and 6/5/24, she attempted to contact Plaintiff’s counsel regarding the issues raised in the instant demurrer, but received no response to date. Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirements under the Code of Civil Procedure section 430.41.

B.     Statute of Limitations

As a preliminary matter, Defendant argues that Plaintiff’s claims are time-barred by the applicable statutes of limitations. A statute of limitations begins to run when a cause of action accrues, and “a cause of action accrues at the time when the cause of action is complete with all of its elements.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806–807 [quotations and citations omitted].) The relevant statutes of limitations for Plaintiff’s claims require suit to be filed within two years of accrual. (Code Civ. Proc. § 335.1; Lockett v. County of Los Angeles (9th Cir. 2020) 977 F.3d 737, 740 [statute of limitations for Section 1983 claims is two years].) “If a person entitled to bring an action, … is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years.” (Code Civ. Proc. § 352.1, subd. (a).) “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” (Cal. Rules of Ct., Emergency Rule 9, subd. (a).)

Here, Plaintiff alleges that the subject incident occurred on 12/6/19. (Compl. ¶ 9.) Therefore, under the applicable two-year statutes of limitations, Plaintiff had until 12/6/21 to file the instant action. The statute of limitations was tolled under section 352.1 to 12/6/23 at the latest. Plaintiff filed his complaint on 3/1/24. Defendant therefore argues that “because Plaintiff brought suit after the statute of limitations expired, this suit is now barred.” (Dem. 4:11.)

As Plaintiff argues in opposition, the statute of limitations was further tolled by the emergency 180-day emergency tolling period. (Pl.’s Opp. 5:4–5.) “Therefore, the December 6, 2023 cut off cited by Defendant was tolled until June 3, 2024. As this action was filed on March 1, 2024, this action is not time barred.” (Id. at 5:6–8.) Defendant does not address this issue in reply.

Based on the foregoing, the Court agrees with Plaintiff that the instant action is not time-barred by the applicable statutes of limitations. Accordingly, the demurrer is overruled on this ground.

C.    Federal Law Claims

Plaintiff’s first through fourth causes of action respectively allege against Defendant: (1) Unreasonable Search and Seizure— Excessive Force; (2) Unreasonable Search and Seizure— Denial of Medical Care; (3) Governmental Liability for Unconstitutional Custom or Policy; and (4) Governmental Liability – Failure to Train; pursuant to 42 U.S.C. § 1983.

Here, Defendant argues that “the United States Supreme Court has held that states and state entities are not ‘persons’ within the meaning of Section 1983, and therefore cannot be sued under that statute. (Dem. 4:21–23, citing Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 70–71 [“We hold that neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.”].) Defendant further argues that it “is a state entity, and not a person. Thus, it cannot be sued under Section 1983.” (Id. at 4:24–25.)

Plaintiff argues in opposition that these causes of action are also alleged against unnamed individual Doe defendants, and as such “the causes of action should are not barred as to the Doe defendants.” (Pl.’s Opp. 5:23–24.) However, as Defendant notes in reply, Plaintiff fails to address Defendant’s argument that the causes of action were improperly alleged against Defendant alone, as the sole demurring party. (Def.’s Reply 2:10–12.)

Based on the foregoing, the Court finds that Plaintiff has failed to allege facts sufficient to constitute his Federal Law causes of action. Accordingly, the demurrer is sustained as to Plaintiff’s first through fourth causes of action.

D.    State Law Claims

Plaintiff’s fifth through seventh causes of action respectively allege against Defendant: (5) Negligence (Gov. Code § 820 and California Common Law); (6) Violation of Bane Act (Civ. Code § 52.1); and (7) Battery (Gov. Code § 820 and California Common Law).

Here, Defendant argues that “Plaintiff’s causes of action 5-7 are barred because plaintiff did not comply with the Government Claims Act.” (Dem. 5:3–4.) 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).) A personal injury claim must be presented within six months of the accrual of the cause of action. (Gov. Code § 911.2, subd. (a).)

A plaintiff who has presented his government claim must commence his lawsuit against the public entity within six months of the written notice of the state’s action taken, or inaction deemed as rejection, as to the claim. (Gov. Code § 945.6, subd. (a)(1).) If no such written notice was given, the suit must be filed within two years from the accrual of the cause of action. (Id. at subd. (a)(2).) “When a person is unable to commence a suit on a cause of action described in subdivision (a) within the time prescribed in that subdivision because he has been sentenced to imprisonment in a state prison, the time limit for the commencement of such suit is extended to six months after the date that the civil right to commence such action is restored to such person, except that the time shall not be extended if the public entity establishes that the plaintiff failed to make a reasonable effort to commence the suit, or to obtain a restoration of his civil right to do so, before the expiration of the time prescribed in subdivision (a).” (Id. at subd. (b).)

In his complaint, Plaintiff alleges that he “filed and served his Government Claim with the State of California on or about November 22, 2022.” (Compl. ¶ 3.) The Court takes judicial notice of the claim, a certified copy of which is as attached as Exhibit 1 to Defendant’s Request for Judicial Notice, and notes that the claim is file stamped as received on 1/23/23. (Ex. 1 to Def.’s RJN.) No facts are presented as to the resolution of Plaintiff’s claim.

Defendant argues that “although he was required to submit a government claim form within six-months of his causes of action accruing, Plaintiff did not submit a government claim until more than three years after his causes of action accrued, in January 2023.” (Dem. 5:23–25.) Defendant further observes that unlike Plaintiff’s Federal law claims under Code of Civil Procedure section 352.1, “that provision does not extend the time in which to submit a government claim.” (Id. at 5:27, citing Code Civ. Proc. § 352.1, subd. (b) [“This section does not apply to an action against a public entity or public employee upon a cause of action for which a claim is required to be presented.”].)

The Court notes that Plaintiff does not address this issue in his opposition. Based on the foregoing, the Court finds that Plaintiff has failed to allege facts sufficient to constitute his State law causes of action because he failed to timely present a government claim. Accordingly, the demurrer is sustained as to Plaintiff’s fifth through seventh causes of action.

E.     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 requests leave to amend his complaint in the event that the demurer is sustained. (Pl.’s Opp. 5:27–6:1.) Therefore, based on the Court’s liberal policy in granting leave to amend, the Court grants Plaintiff 30 days leave to amend his pleading so that he may allege facts sufficient to state his causes of action.

CONCLUSION 

The demurrer is sustained with 30 days leave to amend.