Judge Daniel M. Crowley, Case Number: 24STCV05918, Date: 2025-01-10 Tentative Ruling

Moving Defendants State of California by and through the Department of Highway Patrol’s and Edward McElroy’s unopposed demurrer to Plaintiff William Gonzalez’s entire complaint is sustained without leave to amend.

Defendants State of California by and through the Department of Highway Patrol (“CHP”) and Edward McElroy (“McElroy”) (collectively, “Moving Defendants”) demur unopposed to Plaintiff William Gonzalez’s (“Gonzalez”) (“Plaintiff”) complaint (“Complaint”). (Notice of Demurrer, pg. 2.)

Defendants’ 9/6/24 request for judicial notice of (1) notice of ruling on CHP’s demurrer on October 7, 2022, in Gonzalez et al. v. County of Los Angeles et al., LASC Case No. 21STCV16790, sustaining the demurrer without leave to amend in part and sustaining the demurrer with leave to amend in part (Decl. of Emmons ¶2, Exh. A); (2) judgment in Gonzalez v. County of Los Angeles, et al., C.D. Cal. Case No. CV 23-7810 PA (MRWx) granting in part the Motions for Summary Judgment filed by McElroy, City of Los Angeles (the “City”) and Los Angeles Police Chief Michel Moore (“Chief Moore”), which granted summary judgment to the defendants on the federal claims asserted by plaintiffs William Gonzalez and Michael Gonzalez and declined to exercise supplemental jurisdiction over the remaining state law claims (Decl. of Emmons ¶2, Exh. B); (3) the joint stipulation filed in Gonzalez v. County of Los Angeles, et al., C.D. Cal. Case No. CV 23-7810 PA (MRWx) dismissing the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, Twelfth, Thirteenth, and Fourteenth causes of action against McElroy (Decl. of Emmons ¶2, Exh. C); and (4) official records of the Department of General Services that no government claim has been filed in this case (Decl. of Emmons ¶2, Exh. D) is granted.

Plaintiff filed his operative Complaint on March 8, 2024, alleging five causes of action: (1) violation of the Bane Act; (2) intentional infliction of emotional distress; (3) negligence; (4) assault; and (5) battery.

This action arises out of Plaintiff’s alleged loss of his eye from an LAPD projectile and CHP’s failure to render aid on October 11, 2020, which occurred while Plaintiff was celebrating the Los Angeles Lakers’ 2020 National Basketball Association (“NBA”) Finals championship game. (See Complaint ¶¶19-34.)

On September 6, 2024, Defendants filed their initial demurrer. On November 8, 2024, Defendants filed an amended demurrer. As of the date of this hearing no opposition was filed.

On December 26, 2024, Plaintiff filed a request for dismissal with prejudice “[a]s to Defendants State of California by and through the California Department of Highway Patrol AND Edward McElroy ONLY,” which was rejected by the clerk on December 30, 2024, because, “[t]he name of the defendant does not match what is on file.” (12/26/24 Request for Dismissal.)

Defendants demur to Plaintiffs’ 1st cause of action, violation of the Bane Act, because the claim has already been adjudicated by the Federal Court or State Court. (Amended Demurrer, pg. 2.) Defendants demur on the basis that all of Plaintiffs’ causes of action except for negligence have been disposed of by a stipulation between parties. (Amended Demurrer, pg. 2.) Defendants demur to the entire of the complaint on the ground that Plaintiff has not filed a government claim and more than twelve months have elapsed since the incident so no claim can be filed. (Amended Demurrer, pg. 2.) Defendants demur on the basis all causes of action are barred by the applicable statute of limitations. (Amended Demurrer, pg. 2.)

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Defendants’ counsel declares that on August 22, 2024, he called Plaintiff’s counsel the parties were not able to resolve the issues in the Complaint. (Decl. of Emmons ¶3.) Defendants’ counsel’s declaration is sufficient under C.C.P. §430.41(a). Accordingly, the Court will consider the instant demurrer.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

Under California law, before a plaintiff can file in Superior Court against a State employee or entity they must first file a claim with the defendant agency. (Gov. Code §911.2.) A plaintiff who fails to comply with the claims statute, cannot bring suit against the public agency or employee. (See Klein v. City of Laguna Beach (9th Cir. 2013) 533 Fed.Appx. 772, 774 [confirming summary judgment where Plaintiff had not complied with applicable claims statutes.])

Here, no government claim filed in this case. (D-RJN, Decl. of Emmons ¶2, Exh. D.) Plaintiff does not allege in his complaint that he filed a claim. The alleged incident took place on October 11, 2020; however, Plaintiff filed his Complaint on March 8, 2024, three and a half years later. (See Complaint ¶19.)

The Government Code requires that a claim must be presented “not later than one year after the accrual of the cause of action.” (Gov. Code §911.2.) Plaintiff is too late to file a claim. The proper remedy for failure to file a claim is for the court to sustain the demurrer without leave to amend. (Connolly v. State of California (1970) 3 Cal.App.3d 744, 748-749.)

Accordingly, Moving Defendants’ demurrer to the entire Complaint is sustained without leave to amend.

Moving Defendants CHP’s and McElroy’s unopposed demurrer to Plaintiff’s entire Complaint is sustained without leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court