Judge: Douglas W. Stern, Case: 22STCP02330, Date: 2023-04-18 Tentative Ruling

Case Number: 22STCP02330    Hearing Date: April 18, 2023    Dept: 68

Vonneisha McMurray vs.
Officer Nicholas Hernandez, et al., 22STCP02330

MOVING PARTIES: Defendant City of Palmdale

MOTION: Demurrer to First Amended Complaint

BACKGROUND

Factual

Plaintiffs Vonneisha McMurray, Cheyenne Bradford, and Robert McMurray are
pro per litigants suing Defendants alleging multiple causes of action.  The claims are (1) false imprisonment, (2) illegal
search, (3) fraudulent deceit, (4) negligent misrepresentation, (5) intentional
infliction of emotional distress, (6) assault, and (7) battery by a police
officer. All the claims arise out of a traffic stop of Plaintiff Vonneisha
McMurray on October 20, 2020.

Plaintiff Vonneisha McMurray was the driver of the vehicle.  (Complaint ¶ 9.)  Plaintiff Robert McMurray is alleged to be
Plaintiff Vonneisha McMurray’s father and was present in the vehicle when the traffic
stop took place.  No other allegations
are made relating to him.  Plaintiff
Cheyenne Bradford is alleged to be Plaintiff Vonneisha McMurray’s son.  (Complaint ¶ 16, 19.)  He was not in the vehicle, but was called by
Plaintiff Vonneisha McMurray and came to the traffic stop location in order to
take a video of the situation. 
(Complaint ¶ 16.)  He was
handcuffed by Defendants.  (Complaint ¶
19.)

Procedural

This
action was originally filed by Plaintiff Vonneisha McMurray on June 21, 2022.  This Court previously sustained demurrers with
leave to amend filed by the Cities of Palmdale and Lancaster due to Plaintiff
not including language demonstrating that she had filed a pre-litigation
government claim.  On February 21, 2023,
Plaintiff filed a First Amended Complaint (FAC) in which Cheyenne Bradford and
Robert McMurray were added as Plaintiffs.  These extra Plaintiffs may have been
improperly added, considering that their addition was outside the Court’s grant
of leave to amend the complaint.  The
City of Palmdale filed its demurrer on March 22, 2023.

No
opposition to the demurrer of Defendant City of Palmdale the has been filed by
Plaintiffs.

ANALYSIS

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).

Failure to File Government Claim

The issue upon which the Defendant demurs is the
fact that Plaintiffs have still not alleged that they filed a claim with the
defendant entities within six months of the date of the incident.

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 allege that a government claim has been filed.  Further, 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.)

Despite this Court having sustained a previous
demurrer to Plaintiffs’ complaint for this reason, there is still no language
in Plaintiffs’ FAC indicating that Plaintiffs have complied with Government
Code Sections 900 to 915 and filed a claim with the City of Palmdale. As such,
Plaintiffs cannot maintain any causes of action against the Defendant.  Plaintiffs have not filed an opposition to
the demurrer.  Since they have known of
this defect and amended the complaint without addressing it, and have chosen
not to oppose the demurrer, the Court concludes that Plaintiffs can never cure
this defect.

Accordingly, Defendant’s Demurrer to Plaintiffs’ FAC
is sustained without leave to amend.

Order

Defendant
City of Palmdale’s demurrers to Plaintiffs’ First Amended Complaint are SUSTAINED
WITHOUT LEAVE TO AMEND.