Judge: Carolyn M. Caietti, Case: 37-2023-00034911-CU-CR-CTL, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 04, 2024

04/05/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Civil Rights Demurrer / Motion to Strike 37-2023-00034911-CU-CR-CTL NDIZEYE VS CITY OF SAN DIEGO [E-FILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 03/13/2024

Defendant City of San Diego's Demurrer to Plaintiff's First Amended Complaint (ROA 26) is SUSTAINED WITHOUT LEAVE TO AMEND.

City's request for judicial notice is granted and notice will be taken to the extent permitted.

City filed this demurrer on March 13, 2024. Plaintiff filed several opposition briefings before and after City filed the instant demurrer. (See, e.g., ROA 51-59.) The Court understands ROA 58-59 filed on March 15 to reflect Plaintiff's opposition to the demurrer filed on March 13. Contrary to Plaintiff's position, Defendant filed a new demurrer following the filing of his (second) First Amended Complaint and the Court has not ruled on the instant demurrer.

Accordingly, it is unclear whether Plaintiff's request for judicial notice at ROA 51 and filed the day before the instant demurrer was to the previous demurrer or this demurrer. Notwithstanding, Plaintiff's request for judicial notice No. 1 as to the statutory requirements set forth in Government Code sections 810-996.6 is granted and notice will be taken to the extent permitted. Plaintiff's request for judicial notice No. 2 is denied as it is unclear what Plaintiff asks the Court to take notice of.

City sufficiently met and conferred. (ROA 48 – Declaration of Kelly McGeehan, at ¶ 3.) 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 v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) The Complaint fails to state sufficient facts as it does not plead facts demonstrating or excusing compliance with the claims presentation requirement of the Government Claims Act. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1245 (holding the failure to allege compliance or circumstances excusing compliance with the claim presentation requirement subjects a complaint to a general demurrer for failure to state facts sufficient to constitute a cause of action).) Notwithstanding, the judicially noticed facts show Plaintiff filed the claim late. The claim alleges an injury occurring in July Calendar No.: Event ID:  TENTATIVE RULINGS

3087302  49 CASE NUMBER: CASE TITLE:  NDIZEYE VS CITY OF SAN DIEGO [E-FILE]  37-2023-00034911-CU-CR-CTL 2007, but he did not submit the claim until June 2023. (Gov. Code, § 911.2.) On this basis alone, the (second) First Amended Complaint fails. Notwithstanding, Plaintiff has not substantively opposed the demurrer nor responded to City's arguments. Thus, Plaintiff also impliedly concedes the City cannot be liable for tort damages disguised as negligence claims, the operative complaint fails to state a claim for dangerous condition of public property, the City is immune from liability resulting from discretionary decisions in the management of its public property and the operative complaint is an improper matter for class certification. (See, San Diego Superior Court Local Rule 2.1.19(B).) Rather, Plaintiff's opposition concerns whether the demurrer is moot. The Court's previous ruling took City's previous demurrer to the original complaint off calendar. This is a demurrer to his most recently amended complaint.

Plaintiff also has not requested leave to amend nor articulated facts how they would amend the complaint. (Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150 [the plaintiff has the burden of proving an amendment would cure the legal defect].) Thus, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Concluding Orders If the tentative ruling is confirmed without modification this is dispositive of the matter and the minute order will be the Court's final ruling with the moving party instructed to prepare and file a judgment.

Defendant City of San Diego is ordered to serve written notice of the Court's final ruling on all appearing parties by April 9, 2024.

The Case Management Conference is vacated.

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