Judge: Daniel M. Crowley, Case: 22STCV07824, Date: 2023-01-19 Tentative Ruling

Case Number: 22STCV07824    Hearing Date: January 19, 2023    Dept: 28

Defendant City of Los Angeles’s Demurrer

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On March 3, 2022, Plaintiff Vicenta Christensen (“Plaintiff”) filed this action against Defendant Fenix Marine Services, LTD (“Fenix”) for negligence and premises liability.

On September 14, 2022, Plaintiff filed the FAC.

On November 10, 2022, Plaintiff filed the SAC, adding a cause of action for dangerous condition of public property and Defendant City of Los Angeles (“City”).

On December 14, 2022, the City field a Demurrer to be heard on January 19, 2023. On January 5, 2023, Plaintiff filed an opposition. On January 10, 2023, the City filed a reply.

Trial is scheduled for August 31, 2023.  

PARTY’S REQUESTS

The City requests the Court sustain demurrer, without leave to amend, on the basis that the complaint fails to state a cause of action, and that Plaintiff has failed to comply with Government Code § 900 et sew.

Plaintiff requests the Court overrule the demurrer or grant leave to amend and an order relieving him from the provisions of GC § 945.4.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

Government Code § 945.4 states “except as provided in Sections 946.4 and 946.6, no suit for money or damages may be 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 until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.” 

“The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is applicable: (3) The person who sustained the alleged injury, damage, or loss was a minor during any of the time specified in Section 911.2 for the presentation of the claim, provided the application is presented within six months of the person turning 18 years of age or a year after the claim accrues, whichever occurs first.” Government Code § 946.6 (c). Generally, an action is considered to be accrued when it occurs, or, under special circumstances, when the Plaintiff discovers, or has reason to discover, the cause of action. K.J. v. Arcadia Unified School Dist. (2009) 172 Cal. App. 4th 1229, 1242.

DISCUSSION

Plaintiff’s complaint arises out of an incident that allegedly took place in March of 2020. In the SAC, Plaintiff added the City as a defendant; the City is a government entity. In order to bring an action against a government entity, a plaintiff must comply with the requirements of GC § 911.2 and file a timely claim for bringing suit. Plaintiff’s SAC does not plead that Plaintiff has complied with these requirements or obtained relief. Failure to allege facts demonstrating compliance with the California Tort Claims Act subjects a claim to demurrer. State v. Superior Court (2004), 32 Cal. 4^th 1234.

Plaintiff argues that Plaintiff submitted an application for leave to present a late claim, which was subsequently denied. Plaintiff specifically notes that paragraph 11 of the Second Amended Complaint should be sufficient to permit the lawsuit to move forward. The Court disagrees. Paragraph 11 of the SAC merely states that the City confirmed that Fenix was the sole lessee of the premises, and that Plaintiff relied on these representations. This does not comply with the requirements of the California Tort Claims Act. The SAC is subject to demurrer.

Additionally, Plaintiff requests an order granting relief from the requirements of GC § 945.4. Plaintiff must file a separate motion for the Court to evaluate in order to be granted any such relief; the opposition to a demurrer is an inappropriate avenue to make such a request.

CONCLUSION

Defendant City of Los Angeles’s Demurrer is SUSTAINED, with 30 days leave to amend.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.