Judge: Douglas W. Stern, Case: 22STCP02330, Date: 2023-01-26 Tentative Ruling

Case Number: 22STCP02330    Hearing Date: January 26, 2023    Dept: 68

Vonneisha McMurray vs. Officer Nicholas Hernandez, et al., Case No. 22STCP02330        

MOVING PARTY:                Defendant City of Lancaster

RESPONDING PARTY:      Plaintiff Vonneisha McMurray

MOTION:                               Demurrer to Complaint

BACKGROUND 

Plaintiff is a pro per litigant suing Defendant City of Lancaster and other defendants based on multiple causes of action, including false imprisonment and illegal search and seizure. Defendant City of Lancaster is an incorporated city in California and is a public entity.

This action was originally filed by Plaintiff on June 21, 2022. Defendant filed this Demurrer on December 5, 2022. No opposition has been filed by Plaintiff.

Defendant demurs to Plaintiff’s entire complaint on the basis that Plaintiff failed to allege in her complaint that Plaintiff had filed a claim with Defendant within 6 months of the date of the incident.

ANALYSIS

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Government Code Sections 900 to 915 require that in order for a plaintiff to proceed with an action for the recovery of damages based upon tort theories against a public entity, a claim must be filed with the defendant entity within six months of the date of the incident. Government Code Section 905 requires that the plaintiff’s complaint contain language alleging that a government claim has been filed.

There is no language in Plaintiff’s Complaint indicating that Plaintiff has complied with Government Code Sections 900 to 915 and filed a claim with Defendant City of Lancaster, which is a public entity. As such, Plaintiff cannot maintain any causes of action against Defendant City of Lancaster.

Accordingly, Defendant’s Demurrer as to Plaintiff’s Complaint is sustained with leave to amend.  Plaintiff is granted 20 days leave to amend.