Judge Audra Mori, Case 22STCV25606 2023-02-15 Tentative Ruling

Plaintiff Dwayne Burrell (“Plaintiff”) filed this action against the County of Los Angeles (the “County”) for damages relating to an alleged dangerous condition of public property pursuant to Government Code § 835. Plaintiff alleges that on October 3, 2021, Plaintiff was traveling on a street on a “rideshare scooter” when he lost his balance and fell on broken, split, and uneven concrete. (Compl. ¶ 2.) Plaintiff has dismissed the Complaint against the County, with prejudice, and filed an Amendment to Complaint naming the City of Lon Angeles (the “City”) as Doe 1.

The City now demurs to the Complaint arguing it fails to state sufficient facts to constitute a claim against it because Plaintiff did not file a timely claim for damages as required by Government Code § 911.2. Plaintiff opposes the demurrer. Any reply was due on or before February 7, 2023. As of February 9, 2023, no reply has been filed.

Plaintiff’s Complaint does not allege that Plaintiff filed a claim with any public entity; it makes no mention of a claim at all. The City argues that Plaintiff has not filed a government claim against the City, and that Plaintiff failed to timely file an application to file a late claim against the City. The City asserts that Plaintiff’s counsel indicated that a claim was filed with the County, but the City argues that filing a claim with the wrong public entity is not a defense to the requirement to file a claim with the correct entity.

In opposition, although Plaintiff made no allegations about filing a claim in the Complaint, Plaintiff provides he filed a claim with the County in February 2022, and that after this action was filed, the County indicated that the matter occurred on the City’s property, so Plaintiff named the City as a Doe defendant. Plaintiff argues he sufficiently complied with the requirements of the claims presentation requirement, and that no prejudice has resulted to the City. Further, Plaintiff asserts that Plaintiff requested leave to file a late claim within one year of accrual of his cause of action and contends that the Court should grant him relief.

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).)

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

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, the City asserts that because Plaintiff alleges that the incident occurred on October 3, 2021, Plaintiff was required to file his claim for damages with the City no later than April 3, 2022, but Plaintiff failed to file a claim or an application to file a late claim with the City. The City’s notice of demurrer states that a Request to Take Judicial Notice 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 solely 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 neither alleges that Plaintiff complied with the claims statute, nor includes any reason he is excused from complying with the claim presentation requirements. Indeed, the Complaint makes no mention of a claim against any public entity at all. 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.)

Moreover, Plaintiff does not dispute Plaintiff failed to present a claim to the City relating to the incident. Plaintiff primarily asserts that he substantially complied with the claims presentation requirements by presenting a claim to the County,[1] but Plaintiff cites no authority suggesting that presenting a claim to the wrong entity constitutes substantial compliance. The only case cited by Plaintiff indicates that failure to address a purported claim to the public entity that will be sued renders the attempt to make a claim inadequate. (Wood v. Riverside General Hospital, 25 Cal.App.4th 1113, 1118 (Cal. Ct. App. 1994) [“failure to address the letters to one of the persons specified in the statute, the letters were inadequate to serve the statutory purposes.”]) 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.) Furthermore, Plaintiff cites no authority to support the proposition that Plaintiff naming the City as a Doe defendant within one year of the incident is sufficient to satisfy the claims statute. Further, to the extent that Plaintiff is seeking relief from the claims presentation requirements, Plaintiff fails to cite any authority suggesting that such relief can be granted in connection with an opposition to a demurrer.

The burden is on Plaintiff to show in what manner he 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.

Hon. Audra Mori

Judge of the Superior Court

[1] Plaintiff attaches to the Opposition but does not authenticate, request judicial notice of, or provide a basis for requesting judicial notice of, documentation to support Plaintiff’s assertions. The demurrer is limited to the face of the Complaint and matters that are judicially noticeable. However, even assuming for purposes of Plaintiff’s argument that a claim to the County was made, Plaintiff has not shown this would be sufficient to maintain an action against the City as discussed further in this paragraph.