Judge: Craig Griffin, Case: Guzman vs. City of Westminster Fire Dept, Date: 2022-11-28 Tentative Ruling

Defendants City of Westminster Fire Dept. and Westminster Police Dept’s (“Defendants” together) unopposed Demurrer to plaintiff Maria Guzman’s (“Plaintiff”) is SUSTAINED in part and OVERRULED in part.

The court must note while Defendants filed a reply that appears to indicate an opposition had been served, no such opposition was filed with the court.  The court must take this as an unopposed demurrer.

The court also notes despite Defendants Demurrer only being to the first cause of action (“COA”) for Violation of Civil Rights – 42 U.S.C.A. § 1983, Defendants’ memorandum attacks the COA of negligence and motor vehicle negligence.  (Demurrer 7:5-18.)  As these COA were not included in the Demurrer itself, the court cannot consider those arguments.  (People ex rel. Flynn v. Abbott (1860) 16 Cal. 358, 364.)  The Demurrer is overruled as to the non-42 U.S.C.A. § 1983 COA arguments.

A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The issue is the sufficiency of the pleading, not the truth of the facts alleged.  Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer.  (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)  Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer.  (Day v. Sharp (1975) 50 Cal.3d 904, 914;  Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.)

“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.]  However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. [Citations omitted.]”  (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672.)

Under Section 430.10(e) the test is whether the complaint states any valid claim entitling plaintiff to relief, even if Plaintiff’s cause of action is improperly titled, or an improper remedy is stated.  (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38.)

“ ‘ “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” [Citations.] “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” ‘ “   (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal. App. 5th 677, 695.)

Again, Defendants demur solely to the first COA for Violation of Civil Rights – 42 U.S.C.A. § 1983, on the bases 1) Plaintiff failed to file her Complaint within six-months of Defendants’ rejection of her government claims; 2) Plaintiff failed to state facts sufficient to constitute a COA and has failed to allege necessary (Civ. Proc. Code §§ 430.10(e) and (f); and 2) Plaintiff does not have legal capacity to sue (Civ. Proc. Code § 430.10(b).

As 42 U.S.C.A. § 1983 is a federal civil rights code the California Tort Claims Act (“TCA”) does not apply, and Plaintiff was not required to comply with the six-month deadlines of Gov't Code §§ 911.2 and 945.6.  (May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Rossiter v. Benoit (1979) 88 Cal. App. 3d 706, 713.)  The limitation period does not support sustaining the Demurrer.

For sufficiency of the cause of action, again the requirements under the TCA do not apply.  That being said, COA No. 1 does not state sufficient facts to support this COA against Defendants and is uncertain as to Defendants.  The COA consists of only two brief sentences that do not cite to any civil right that was violated, nor does it make allegations as to how Defendants violated any of the decedent’s rights.  This supports sustaining the Demurrer.

Finally, Plaintiff brings the 42 U.S.C.A. § 1983 COA for violation of her decedent son’s civil rights and not for violation of her own rights.  Plaintiff does not have standing to bring this COA as pled.  (Civ. Proc. Code § 367; Brenner v. Universal Health Servs. of Rancho Springs, Inc. (2017) 12 Cal. App. 5th 589, 605.)  This too supports sustaining the Demurrer.

The Demurrer is SUSTAINED as to COA No. 1, and OVERRULED as to the other COA. 

Though no opposition was made, the court will permit Plaintiff to file an amended complaint within 10-days of written notice of the court’s ruling.

Defendants to give notice.