Judge: Audra Mori, Case: 21STCV41944, Date: 2023-01-17 Tentative Ruling

Case Number: 21STCV41944    Hearing Date: January 17, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Steve Nathan Fenton (“Plaintiff”) filed this action against defendant 12060 Hoffman Homeowner’s Association, Inc. and the Condo Managers for injuries relating to Plaintiff’s trip and fall at the property located at 12060 Hoffman-Street, Studio City, Ca 91604, that occurred on March 15, 2021.  The complaint alleges causes of action for negligence and premises liability.  On February 4, 2022, 12060 Hoffman Homeowner’s Association, Inc. filed a cross-complaint against the City of Los Angeles (the “City”) for indemnification, apportionment of fault, and declaratory relief.   On November 10, 2022, Plaintiff filed an Amendment to Complaint naming the City as Doe 1 in Plaintiff’s complaint. 

The City now demurs to the complaint arguing that it fails to state sufficient facts against the City to constitute a cause of action against it.  Plaintiff opposes the demurrer.  As of January 12, 2023, no reply has been received. 

The City argues that Plaintiff failed to timely file a claim for damages as required under Government Code § 911.2, and that the Court lacks jurisdiction to grant leave for Plaintiff to file a late claim under Government Code § 946.6.  Further, the City asserts that Plaintiff fails to allege an exception or excuse for noncompliance with the claim filing requirements.

In opposition, Plaintiff contends that the City was brought into this action by 12060 Hoffman Homeowner’s Association, Inc. within the required six-month period, so the City has been notified of this incident and the allegations.  Plaintiff contends that the function and purpose of the government claim requirement was substantially complied with, and that the City’s arguments concerning matters outside of the complaint are improper at the demurrer stage.  Additionally, Plaintiff asserts that his amendment to complaint naming the City as Doe 1 relates back to the filing of the complaint. 

2. Demurrer

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.)

a. Meet and Confer

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).) 

The court finds Defendant has fulfilled this requirement prior to filing the demurrer.  (Demurrer Attarian Decl. ¶ 2.)

b. Analysis

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:

(a) 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:

(1) 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.

…

“Government Code § 945.6 is a statute of limitation.”  (Cole v. Los Angeles Unified School Dist. (1986) 177 Cal.App.3d 1, 3; see also Dowell v. Contra Costa County (2013) 928 F.Supp.2d 1137, 1152 [“Under § 945.6, if the board delivers written notice of its decision to the complainant, the complainant has six months to file a civil suit … This functions as a statute of limitations.”].)  “It is well established by case law that the six-month limitation period in Government Code section 945.6 starts to run when the notice of rejection has been either personally served or deposited in the mail.”  (Cole, 177 Cal.App.3d at 4.) 

“The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity [Citation]. The act creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint.”  (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.)

“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.4th 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.4th 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.4th 761, 767.) 

Here, as an initial matter, the City’s notice of demurrer states that a Request to Take Judicial Notice of certain matters was filed and served with the moving papers.  However, the Court cannot locate any request for judicial notice filed with the demurrer.  The Court exercises its ability to take judicial notice of the Complaint. 

Plaintiff does not dispute that the City is a public entity, or that the government claim presentation requirements are otherwise applicable to the City.  However, the complaint on its face fails to allege that Plaintiff complied with the claims statute.  Plaintiff filed the complaint on Judicial Council form PLD-PI-001, but Plaintiff does not indicate that Plaintiff complied with appliable claims statutes, nor does Plaintiff provide any reason he is excused from complying with the claim presentation requirements.  (See e.g., Compl. at p. 2, ¶ 9.)  The filing of a claim is a condition precedent to filing an action against a public entity, and the failure to plead compliance with the claims statutes bars Plaintiff’s claims against the City.  (Del Real, 95 Cal.App.4th at 767; Gong, 226 Cal.App.4th at 374.) 

Plaintiff does not dispute failing to present a claim to the City relating to the incident.  Rather, Plaintiff contends that the City has been notified of this incident and the allegations through 12060 Hoffman Homeowner’s Association, Inc.’s cross-complaint against the City.  However, even if the City had actual notice of Plaintiff’s claim, the claims statutes still must be satisfied for a claim to be maintained against the City.  (DiCampli-Mintz, 55 Cal.4th at 990.)  Plaintiff cites no authority suggesting that a cross-complaint filed against a public entity is sufficient to satisfy a plaintiff’s duty to comply with the claims statutes.  Rather, because Plaintiff’s causes of action for negligence and premises liability are distinct from 12060 Hoffman Homeowner’s Association, Inc.’s causes of action for indemnity, the former could not rely upon the latter’s claim to the City.  This is supported by the fact that the Government Code expressly provides the specific time that a cause of action for indemnity against a public entity arises is distinct from the time when Plaintiff’s causes of action for negligence and premises liability arose .  (Gov. Code § 901 [“… the date upon which a cause of action for equitable indemnity or partial equitable indemnity accrues shall be the date upon which a defendant is served with the complaint giving rise to the defendant's claim for equitable indemnity or partial equitable indemnity against the public entity.”]; accord. Castaneda v. Dept. of Corrections (2013) 212 Cal.App.4th 1051, 1062 [where two or more persons have suffered separate and distinct injuries from the same act or omission, they must each present a claim, and neither can rely on the claim presented by the other].) 

Similarly, Plaintiff’s contention that he properly named the City as a doe defendant is unavailing.  The requirements for naming a doe defendant are separate and distinct from the claims presentation requirements under the Government Code, and Plaintiff cites no authority suggesting that filing a doe amendment pursuant to CCP § 474 is sufficient to satisfy the claims statutes.    

Based on the foregoing, the City’s demurrer to the complaint is sustained.

The burden is on Plaintiff to show in what manner can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)  

In this case, Plaintiff does not request leave to amend, and as stated above, Plaintiff does not otherwise dispute failing to timely file a claim with the City.  Further, Plaintiff does not attest or suggest that he can plead an excuse for failing to comply with the claim presentation requirements. 

Defendant’s demurrer to the complaint is sustained without leave to amend.  The complaint against the City is ordered dismissed.

Defendant the City is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 17^th day of January 2023