Judge: Armen Tamzarian, Case: 23STCV26504, Date: 2025-05-02 Tentative Ruling

Case Number: 23STCV26504    Hearing Date: May 2, 2025    Dept: 52

Defendant’s Motion for Judgment on the Pleadings

Defendant City of Los Angeles moves for judgment on the pleadings on the complaint by plaintiff Marvin Louis Lowery Jr.  A motion for judgment on the pleadings is equivalent to a demurrer, which tests the sufficiency of the plaintiff’s complaint while assuming its factual allegations are true.  (Ibarra v. Chuy & Sons Labor, Inc. (2024) 102 Cal.App.5th 874, 881.)

Service of Opposition

            Plaintiff filed an opposition to this motion on April 24, 2025.  The opposition does not, however, include a proof of service.  Before filing any papers with the court, a party must first serve a copy of the papers on the other parties, typically by mail.  (See Code Civ. Proc., § 1012.)  An opposition to a motion must “be served by personal delivery, facsimile transmission, express mail, or other means consistent with [Code of Civil Procedure] Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed.”  (Code Civ. Proc., § 1005, subd. (c).)  The party filing the opposition or other papers must also file a proof of service.  (Code Civ. Proc., §§ 1013a, 1013b.)

Government Tort Claims Act

Plaintiff’s complaint is insufficient because he did not allege compliance with the Government Tort Claims Act (the Act).  The Act “establishes certain conditions precedent to the filing of a lawsuit against a public entity.  …  [A] plaintiff must timely file a claim for money or damages with the public entity.  [Citation.]  The failure to do so bars the plaintiff from bringing suit against that entity.”  (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.)  “[F]ailure to allege facts demonstrating or excusing compliance with this claim presentation requirement subjects a complaint to a general demurrer” or motion for judgment on the pleadings.  (Ibid.)

Plaintiff’s complaint does not allege he complied with the Government Tort Claims Act by presenting a claim to the City of Los Angeles before filing this lawsuit.  The complaint refers to the Act only in its introduction: “I, Marvin Louis Lowery Jr., as a Pro Se litigant, under the California Tort Claims Act of 1963 [citations] on October 31, 2023 accuse the City of Los Angeles of” several causes of action.  (Comp., p. 4.)  In plaintiff’s opposition to this motion, he argues the complaint in this action satisfied the Government Tort Claims Act.  He contends, “[T]his piece of Litigation is provided by me as a form of chronological validation to claims made by plaintiff… .”  (Opp., p. 2.) 

The California Supreme Court, however, has held that the complaint in a civil action cannot satisfy the claim presentation requirement under the Government Tort Claims Act.  Permitting the plaintiff to file suit and then “obligating the public entity to notify the plaintiff of the necessity to present a proper claim … would be irreconcilable with the statutory scheme.  The legislature’s intent to require the presentation of claims before suit is filed could not be clearer.”  (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746, italics in original.)  “The purpose of providing public entities with sufficient information to investigate claims without the expense of litigation is not served if the entity must file a responsive pleading alerting its opponent to the claim requirements.”  (Ibid.; see also J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 657-658.)

Disposition

            Defendant City of Los Angeles’s motion for judgment on the pleadings is granted with leave to amend.  Plaintiff Marvin Louis Lowery, Jr. shall file any first amended complaint within 20 days.

            On its own motion, the court hereby continues the final status conference from May 5, 2025, to September 29, 2025, at 9:00 a.m.  The court hereby continues the jury trial from May 21, 2025, to October 15, 2025, at 10:00 a.m.  The court does not continue any pretrial discovery deadlines.