Judge: Douglas W. Stern, Case: 22STCP02330, Date: 2023-02-06 Tentative Ruling
Case Number: 22STCP02330 Hearing Date: February 6, 2023 Dept: 68
Vonneisha McMurray v. Hernandez, et al., Case No. 22STCP02330
MOVING PARTY: Defendant
City of Palmdale
RESPONDING PARTY: Plaintiff
Vonneisha McMurray
MOTION: Demurrer to Complaint with Motion to Strike
To assert a
claim against the governmental body Plaintiff must allege that she complied
with the requirement to submit a timely claim.
That is the main issue in this demurrer.
I. BACKGROUND
A. Factual
Plaintiff
is a pro per litigant suing Defendant City of Palmdale and other
defendants based on multiple causes of action, including false imprisonment and
illegal search and seizure. Defendant City of Palmdale is an incorporated city
in California and is a public entity.
B. Procedural
This action was originally filed by Plaintiff
on June 21, 2022. Defendant filed this Demurrer on January 6, 2023. Plaintiff
filed her opposition on January 25, 2023. Defendant filed its reply on January
30, 2023.
II.
MOVING PARTY’S GROUNDS
FOR THE DEMURRER
Defendant demurs to Plaintiff’s
entire complaint on the basis that Plaintiff failed to indicate in her
complaint whether Plaintiff had filed a claim with Defendant prior to filing
this action.
III. ANALYSIS
A. The Demurrer
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).
To Entire Complaint
If
a cause of action against a public entity is a type as to which a claim must be
presented to the entity, no action may be commenced on the cause of action
until a claim has been presented, and the entity has acted on the claim or the
claim has been deemed rejected. (See Gov. Code § 945.4.)
“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.” Gov. Code, § 945.4
There is no allegation in the Complaint stating that
Plaintiff has complied with the Government Code and filed a claim with
Defendant City of Palmdale, which is a public entity. As such, Plaintiff cannot
maintain any causes of action against Defendant City of Palmdale.
Accordingly,
Defendant’s Demurrer as to Plaintiff’s Complaint should be SUSTAINED with 20
days leave to amend.
B.
Motion to Strike
Defendant City of Palmdale requests that the following
language be stricken from Plaintiff’s Complaint:
1. Page 6, Paragraph 31, “… punitive damages, and
attorneys' fees…”;
2. Page 8,
Paragraph 45, “… punitive damages, and attorneys' fees…”;
3. Page 8,
Paragraph 54, “… punitive damages, and attorneys' fees…”;
4. Page 9,
Paragraph 69, “… punitive damages, and attorneys' fees…”;
5. Page 11,
Paragraph 77, “… punitive damages, and attorneys' fees…”;
6. Page 12,
Paragraph 83, “… punitive damages, and attorneys' fees…”;
7. Prayers for
Relief:
First, Cause of Action:
“5. Punitive damages, according to proof at trial;
and
6. Attorneys' fees and costs”;
Second Cause of Action:
“5. Punitive damages, according to proof at trial;
and
6. Attorneys' fees and costs”;
Third Cause of Action:
“5. Punitive damages, according to proof at trial;
and
6. Attorneys' fees and costs”
Fourth Cause of Action:
“5. Attorneys' fees and costs”
Fifth Cause of Action:
“5. Punitive damages, according to proof at trial;
and
6. Attorneys' fees and costs”
Sixth Cause of Action:
“5. Punitive damages, according to proof at trial;
and …
8. Punitive damages, according to proof at trial;
and
9. Attorneys' fees and costs”;
Seventh Cause of Action:
“5. Punitive damages, according to proof at trial;
and
6. Attorneys' fees and costs.”
Under CCP §436, the Court may, upon terms it deems
proper: “(a) strike out any irrelevant, false or improper matter inserted in
the pleadings; (b) strike out all or any part of any pleading not drawn or
filed in conformity with the laws of this State, a court rule, or order of the
court.” A motion to strike improper allegations for punitive damages is
appropriately granted where the claim sued upon would not support such awards
as a matter of law. (Commodore Home Systems, Inc. v. Superior Court
(1982) 32 Cal.3d 211.) Civil Code §3294 sets forth a strict standard for
maintaining a claim for punitive damages. The plaintiff must establish the defendant
is himself or itself guilty of “oppression, fraud or malice” or approved or
ratified such conduct. (Civil Code §3294(a-b).)
Defendant objects
to the requests for attorneys’ fees and costs and punitive damages because
Plaintiff has provided no basis for these requests in her complaint. Plaintiff
has not indicated in the complaint what statute would allow her to request
attorneys’ fees. Nor has Plaintiff pled sufficient facts to show that Defendant
itself is guilty of or approved or ratified oppression, fraud, or malice.
Defendant’s motion to strike references to attorneys’ fees and punitive
damages from Plaintiff’s Complaint is GRANTED with 20 days leave to amend.