Judge Elaine W. Mandel, Case Number: 24SMCV02952, Date: 2024-09-26 Tentative Ruling

Judge: Elaine W. Mandel, Case: 24SMCV02952, Date: 2024-09-26 Tentative Ruling

Case Number: 24SMCV02952 Hearing Date: September 26, 2024 Dept: P

Tentative Ruling

Ruiz v. City of West Hollywood, Case no. 24SMCV02952

Hearing date September 26, 2024

Defendant City of West Hollywood’s Demurrer to First Amended Complaint

Plaintiff Ruiz sues defendant City of West Hollywood (“City”) for injuries sustained when she tripped and fell crossing the street on January 23, 2024. Plaintiff timely filed a governmental tort claim on June 3, 2024 and filed her complaint June 18, 2024. Plaintiff sued and dismissed City of Los Angeles.

Defendant City did not respond to plaintiff's claim. Plaintiff filed a second tort claim on July 19, 2024; defendant did not respond. Plaintiff filed a first amended complaint July 23, 2024. Defendant demurs pursuant to Code Civ. Proc. §430.10(a), arguing the court has no jurisdiction.

Request for Judicial Notice

Defendant requests judicial notice of the following documents:

· Plaintiff’s June 3, 2024 Tort Claim filed with the City of West Hollywood

· Plaintiff's June 18, 2024 Summons and Complaint

· Plaintiff’s June 25, 2024 Proof of Service on the City

· Plaintiff's July 23, 2024 First Amended Complaint and

· Plaintiff's FAC served on the City on July 26, 2024.

Judicial notice may be granted under Evid. Code §452(d) for records of the court as well as for the filings and contents of a government claim under Evid. Code §452(c). GRANTED.

“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… 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.” Cal. Gov. Code §945.4. Failure to comply with the mandates of the Government Claims Act results in loss of jurisdiction by the Superior Court. Rubenstein v. Doe 1 (2017) 3 Cal.5th 903, 906; Gates v. Sup.Ct. (1995) 32 Cal.App.4th 481, 509.

Defendant argues the FAC fails as a matter of law because it fails to substantially comply with the governmental tort claims act (“Act”). Defendant notes "The long established rule in this state is that the courts may allow no exceptions to the claim provisions of a claim statute under the guise of interpretation or construction. Compliance with the [Government Claims Act] is mandatory and the requirement may not be waived." Powers Farms v. Consolidated Irrigation District (1941) 19 Cal.2d 123, 130. Defendant points to plaintiff’s filing of the initial claim with the City on June 3, 2024, and the filing of the complaint 15 days later on June 18, 2024, as a fatal failure to comply with the Act. Under the Act, plaintiff was required to wait 45 days after filing a claim before filing a complaint.

Defendant is correct that the initial complaint was not in compliance, as the time had not elapsed. Defendant cites to Lowry v. Port San Luis Harbor District (2020) 56 Cal.App.5th 211, 219 noting “‘Timely claim presentation is not merely a procedural requirement but is … ‘a condition precedent to plaintiffs maintaining a cause of action against defendant.’ ‘Only after the public entities board has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a cause of action in tort against a public entity.’ (Citation.) Lowry failed to comply with the act because he filed a complaint before his claim was rejected.” Id.

Plaintiff does not dispute that fact. Instead, plaintiff argues she filed her FAC on July 23, 2024, and the FAC is in compliance with the time requirements of the Act.

Defendant argues that filing the FAC does not cure the procedural deficiencies of the initial complaint. Citing again to Lowry, defendants note that in that case “[plaintiff] offered to amend the complaint to state he complied with the applicable claims statutes. But the lawsuit is precluded because it was not preceded by rejection of a claim. [plaintiff]'s noncompliance with the [Government Claims] Act cannot be cured by amending the complaint to allege he complied.” Id. at 221.

In this, defendant is correct. Plaintiff conceded in the FAC that the initial complaint was filed prematurely, before defendant rejected the claim, and the court has granted judicial notice of plaintiff's June 25, 2024 proof of service demonstrating the initial complaint was served prematurely.

Defendant asserts the FAC is a sham pleading because plaintiff is attempting to plead around her noncompliance with the Act. Defendant notes plaintiff did not allege facts about whether she complied with the Act’s procedural requirements in the original complaint and argues because plaintiff argues in the FAC that the FAC complies with the Act, it is a sham pleading. The court disagrees.

Pleading compliance with the Act in the FAC is not inconsistent with the initial complaint’s silence on this issue. Plaintiff points to Malear v. State of Cal. (2023) 89 Cal.App.5th 213, 225. In that case, a prematurely filed complaint was amended to include allegations of compliance with the Act after the public entity denied the claim, but before either the original or amended complaint had been served on the public entity; the court found this substantially complied with the Act. Id.

Similarly, plaintiff timely filed a claim. She (admittedly) filed the initial complaint prior to expiration of the 45 days. However, her FAC was timely. The purpose of the Act is to give the governmental entity notice of claims and the opportunity to resolve them prior a suit being filed. Here, the filing of the FAC refers back to the filing of the initial tort claim. The demurrer is OVERRULED. Defendant to answer within 15 court days.