Judge Audra Mori, Case 21STCV09922 2023-02-02 Tentative Ruling

On March 12, 2021, Plaintiffs Tonya Harrison (“Harrison”) and King Gorum (“Gorum”), a minor by his guardian ad litem, Harrison filed this action against Defendants Sonya Thompson (“Thompson”) and County of Los Angeles (the “County”) (collectively, “Defendants”) for damages arising from a motor vehicle accident that occurred on March 15, 2019. Plaintiffs allege Thompson negligently caused the accident while in the course and scope of her employment with the County. The complaint alleges causes of action for motor vehicle and general negligence against Defendants. Further, the complaint on its face alleges that Plaintiffs were required to and did comply with applicable claims statutes. (Compl. ¶ 9.)

Defendants now demur to the complaint arguing it fails to state a claim against Defendants because Plaintiffs failed to comply with the claims presentation requirements of the Government Claims Act (the “Act”). The demurrer is unopposed.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Ainslie Decl. ¶ 7.)

Defendants request judicial notice be taken of (1) County Counsel’s file abstract (Demurrer Ainslie Decl. Exh. A), (2) the purported unsigned government claim presented on behalf of Harrison (Demurrer Ainslie Decl. Exh. B), (3) the notice of denial for the claim presented on behalf of Harrison (Demurrer Ainslie Decl. Exh. C), and (4) Plaintiffs’ complaint filed in this action.

However, the requests for judicial notice are largely problematic. Each of the documents of which judicial notice is requested is attached to a declaration that does not explain the documents or provide facts sufficient to show that the documents meet the requirements of Evidence Code section 451, 452, or 453. The declaration provides in relevant part:

3. Attached hereto as Exhibit A is a true and correct copy of the relevant portion of County Counsel’s file abstract which reflects that no claim was ever received for Plaintiff King Gorum. …

4. Attached hereto as Exhibit B is a true and correct copy of the unsigned government claim purportedly presented on behalf of Plaintiff Tonya Harrison.

5. Attached hereto as Exhibit C is a true and correct copy of the notice of denial for the unsigned government claim purportedly presented on behalf of Plaintiff Tonya Harrison.

6. Attached hereto as Exhibit D is a true and correct copy of Plaintiffs’ complaint for damages.

The only authority given for the requests is the blanket and summary assertion that the Court “may take judicial notice of the filing and contents of a government claim, as well as associated denial letters and the files of the public entity for purposes of compliance with the Government Claims Act. See Evid. Code, § 452, subd. (c); Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 14; Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368.”[1]

Defendants provide no authority showing that the Court is permitted to take judicial notice of a “County Counsel’s file abstract.” Further, the declaration does not explain how counsel obtained the abstract, what it is, why it is accurate, or how it meets the requirements of Evidence Code section 451, 452, or 453. Thus, the request for judicial notice of County Counsel’s File Abstract is denied without prejudice.

The request as to the purported government claim and notice of denial is similarly insufficient. The declaration of counsel to which the documents are attached does not explain from where the documents came, how they were obtained, or that they are sufficient for judicial notice to be taken of them. It is unclear how counsel would know they are true and correct copies. Exhibit B is simply described as an “unsigned government claim purportedly presented on behalf of Plaintiff Tonya Harrison.” Exhibit C is a letter issued by Carl Warren & Company on March 2, 2021. To the extent that the request relies upon the Ludwig and Gong cases without any explanation, the bare citation alone is insufficient. Ludwig’s cursory reference in a footnote of taking notice of a plaintiff’s claim for damages does not provide significant support for taking judicial notice of the “unsigned government claim purportedly presented on behalf of Plaintiff” here. Gong is distinguishable in that judicial notice was taken of undisputed facts, where in this case, the Complaint alleges that Plaintiff “has complied with applicable claims statutes,” thereby contesting facts of which judicial notice is requested. (Compl. ¶ 9.) As the burden has not been met to grant the request for judicial notice, the request for judicial notice of Exhibits B and C are denied without prejudice. (People v. Moore (1997) 59 Cal.App.4th 168, 177 [“ ‘The burden is on the party requesting judicial notice to supply the court with sufficient, reliable and trustworthy sources of information about the matter… A court is not required to seek out on its own initiative indisputable sources of information… If the information supplied is not sufficient the trial judge is entitled to refuse to take judicial notice of the matter requested.’ ”], citing People v. Maxwell (1978) 78 Cal.App.3d 124, 130; Ross v. Creel Printing & Publ’g Co. (2002) 100 Cal.App.4th 736, 744 [“The burden is on the party seeking judicial notice to provide sufficient information to allow the court to take judicial notice.”].)

Plaintiffs’ request for judicial notice as to the Complaint is granted, as the basis for that request is plain. (Evid. Code § 452(d).)

Government Code § 945.5 provides, “No suit for damages may be maintained against a public entity unless the claim has been presented to it.”

California Government Code § 911.2(a) states, “[a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” Government Code § 945.6 provides in relevant part:

(e) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced:

(e) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.

“A public entity cannot be sued for tort unless (1) a timely written claim has previously been presented to the governmental entity, (2) any late claim has been presented to the public entity and been excused by it or the court, or (3) conditions described by Government Code section 946.4 … have been met.” (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 483.)

“The failure to timely present a proper claim … bars a plaintiff from filing a lawsuit against that entity. [Citation.]” (Gong v. City of Rosemead (2014) 226 Cal.App.4^th 363, 374.) Thus, “[e]ven if the public entity has actual knowledge of facts that might support a claim, the claims statutes still must be satisfied. [Citation.]” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4^th 983, 990.) “The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail.” (Del Real v. City of Riverside (2002) 95 Cal.App.4^th 761, 767.)

Defendants contend that no claim was ever presented by Gorum. In making this argument, Defendants rely on a “County Counsel’s file abstract” for which the request for judicial notice was denied. The complaint on its face thus alleges that Gorum complied with the claims presentation requirement.[2]

“ ‘[A] plaintiff may allege compliance with the claims presentation requirement in the Government Claims Act by including a general allegation that he or she timely complied with the claims statute.’ ” (Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5^th 547, 552.) “When a pleading states that the plaintiff has complied with the claims statute, it has properly pleaded an ultimate fact—that is, the statement of compliance is not a conclusion of law.” (Id. at 552 n. 4.) Accordingly, “plaintiffs are allowed to plead compliance with the claims presentation requirement in the Government Claims Act using a general allegation.” (Id. at 554 [finding plaintiff properly pled compliance with claim presentation requirement of the Act by checking boxes for items 9.a on Judicial Council form PLD–PI–001].)

Therefore, Defendants’ demurrer as to Gorum’s causes of action is overruled.

Defendants assert that Harrison’s claim was not presented within six months of the March 15, 2019 accident. Defendants assert the claim was untimely filed in February 2021, and Defendants argue that the defects with Harrison’s complaint cannot be cured. Defendants again rely on requests for judicial notice that were denied. Defendants also provide no judicially noticeable evidence that the purported claim that they reference is the only claim filed concerning the incident. Because a plaintiff may allege compliance with the claims presentation requirement in the Government Claims Act with a general allegation, compliance is sufficiently alleged in the Complaint. (Esparza v. Kaweah Delta Dist. Hospital, 3 Cal.App.5^th at 552.) Thus, the demurrer as to Harrison’s claims is overruled.

While the Demurrer is overruled, it is overruled without prejudice as to future requests for judicial notice and motions seeking judgment by other means.

[1] Evidence Code section 452(c) provides that permissive judicial notice can be taken of “Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.”

Ludwig v. Superior Court involved an action in which the petitioner sought to develop a mall, as did Barstow, neither wanting competition from the either. The case discusses judicial notice only in a footnote, where it states without explanation, “We do take judicial notice of the existence of Ludwig's claim for damages against Barstow, although we do not find it significant as a matter of law.” It provides little detail and expressly takes notice only of the existence of a damages claim, not any of its contents.

In Gong v. City of Rosemead, plaintiff wanted to develop a certain piece of land. Plaintiff alleged that while the development plans were under consideration, a city council member asked Plaintiff for a loan and to engage Plaintiff in a romantic relationship. When Plaintiff stopped loaning the council member money and refused his advances, the council member embarked upon a course of retaliatory conduct. It was uncontroverted that Plaintiff filed a claim with the city on December 22, 2011, and what that claim said. By letter dated January 18, 2012, the claim was rejected. The appellate court held that Plaintiffs claims for fraud and extortion, assault and battery, and intentional infliction of emotional distress were subject to government claim presentation requirements. “Yet none of these allegations [we]re included in the government claims presented to the City.” Although it was not clear whether the trial court took judicial notice of the claims, the appellate court did so.

[2] Although extrinsic evidence should not be considered in deciding a demurrer, judicial notice has been taken where the records of the State Board of Control did not contain a claim filed by a plaintiff based upon the declaration of a state employee familiar with the records of the Board of Control who had searched for the records and could not locate them. (Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-53.) However, there is no similar declaration in this case.