Judge: Frank M. Tavelman, Case: 23BBCV02937, Date: 2024-10-04 Tentative Ruling

Case Number: 23BBCV02937    Hearing Date: October 4, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Victoria Goring (Plaintiff) brings this action against The City of Burbank (the City). Plaintiff alleges that she was granted an Emergency Housing Voucher (EHV) by the City of Burbank sometime in 2022. Plaintiff alleges that she experienced a myriad of problems with a certain property she rented with her EHV throughout 2023. Plaintiff further alleges that employees for the City refused to help her rectify these problems and were occasionally rude to her.

Before the Court is a demurrer brought by the City. The City demurs to each cause of action on grounds that (1) Plaintiff fails to allege her compliance with the Torts Claim Act, and (2) Plaintiff fails to identify statutory authority for her claims against the City as required by Gov. Code § 815. Plaintiff opposes the demurrer, and the City replies.

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MERITS

Request for Judicial Notice

The City requests the Court take judicial notice of the following:

1.      Plaintiff Victoria Goring’s Tort Claim Form presented to the City of Burbank on February 14, 2023.

2.      Plaintiff Victoria Goring’s Tort Claim Form presented to the City of Burbank on May 2, 2023.

3.      Plaintiff Victoria Goring’s Tort Claim Form presented to the City of Burbank on June 15, 2023.

4.      Plaintiff Victoria Goring’s Tort Claim Form presented to the City of Burbank on October 10, 2023.

The City argues that such documents, when received and stamped by the City, are official records within the meaning of Evidence Code § 452. (See Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518 [ holding that records, reports, and orders of administrative agencies are the subject of proper judicial notice pursuant to Evidence Code § 452(c).].) The Court agrees that the records are the proper subject of judicial notice and the City’s request is GRANTED.

Meet and Confer

C.C.P. § 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Clark Decl. ¶ 3.)

Default/Service

As a preliminary matter, the Court addresses Plaintiff’s argument in opposition that this demurrer is improper because the City is in default and/or this demurrer was not properly served.

First, the City’s demurrer was timely filed such that no default can be taken. C.C.P. § 430.4 specifically acknowledges the filing of a demurrer as a timely response to the filing of an initial pleading. Plaintiff served the City with her FAC on July 18, 2024 and the City filed their demurrer on July 24, 2024. Thus, the City’s demurer is timely and Plaintiff’s claim of default is without merit. Plaintiff was notified of this when her August 5, 2024 request to enter default was rejected by the Clerk of the Court. (See August 6 Notice of Rejection.)

Second, the City has sufficiently demonstrated that this demurrer was properly served on Plaintiff. Plaintiff has specifically requested that the City do not send her any correspondence by U.S. Mail. (Clark Decl. Exh. A.) As such, the City served the demurrer on Plaintiff via email on July 24, 2024. (Clark Decl. Exh. B.) A review of this email clearly shows that the Notice of Motion, Memorandum, and Declaration were all attached to the email. (Id.)

General Discussion

The City argues that their demurrer should be sustained to the entire FAC as Plaintiff fails to allege she complied with the Torts Claim Act. The Court is satisfied from the documents judicially noticed above that Plaintiff has complied with the Torts Claim Act, at least as concerns her first, second, and fifth causes of action.  As such, the Court’s discussion of those causes of action will instead focus on the City’s argument that Plaintiff has failed to identify any statutory authority for her claims. As concerns the third and fourth causes of action, the Court agrees that the FAC does not demonstrate compliance with the Torts Claim Act. 

First COA – Professional Negligence – Sustained without Leave to Amend

A demurrer may be sustained where the plaintiff fails to allege a statutory basis for liability against a public entity. (Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 863-864 [affirming trial court's sustaining a demurrer without leave to amend as to four tort causes of action where plaintiff failed to allege statutory basis—i.e., mandatory duty under Government Code section 815.6—for liability against public entity].) “The California Tort Claims Act provides that 'a public entity is not liable for an injury,' 'except as otherwise provided by statute.' (Gov. Code, § 815 (a).) As that language indicates, the intent of the Tort Claims Act is to confine potential governmental liability, not expand it.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179.) Therefore, public entities cannot be liable for common law theories of general negligence. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [“section 815 abolishes common law tort liability for public entities”].)

Here, Plaintiff’s first cause of action alleges no statutory liability upon which the City may be held liable. Plaintiff’s cause of action for Negligence appears to proceed entirely on a theory of common law. Statutory and case law make clear that a cause of action against a government entity must be supported by allegations that the entity violated a specific statutory duty they owed to the party injured. Plaintiff’s FAC makes no such allegations.

As such, the demurrer to the first cause of action is SUSTAINED. The Court denies leave to amend as it does not appear further factual allegations would allow Plaintiff to bring a common law Negligence claim against a government entity. To the extent that Plaintiff believes she can sustain such a claim, she must allege its basis in statute.

Second COA – Business Tort/Unfair Business Practice – Sustained Without Leave to Amend

Similar to Plaintiff’s cause of action for Negligence, her cause of action for Business Tort is without any statutory basis. Plaintiff must allege some statutory violation which occurred to state a claim against the City, and she has not done so.

As such, the demurrer to the second cause of action is SUSTAINED. The Court denies leave to amend as it does not appear further factual allegations would allow Plaintiff to bring a common law Business Tort claim against a government entity. To the extent that Plaintiff believes she can sustain such a claim, she must allege its basis in statute.

3^rd & 4^th COA – Civil Rights & Defamation – Sustained with Leave to Amend

The Tort Claims Act, codified in Gov. Code §§ 900 et seq., establishes certain conditions precedent to filing a lawsuit against a public entity. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) In order to maintain a cause of action against a public entity, a plaintiff must file a claim with the public entity for money or damages pursuant to Gov. Code § 911.2. (Id.; see Gov. Code, § 911.2(a) [“[a] claim relating to a cause of action for death or for injury to person or to personal property... shall be presented as provided in” Government Code section 915 et seq. “not later than six months after the accrual of the cause of action.”].)

“It is settled that the filing of a timely claim against the employing public entity is a condition precedent to a tort action against either the public entity or the employee.” (Mazzola v. Feinstein (1984) 154 Cal.App.3d 305, 310 (citing Williams v. Horvath (1976) 16 Cal.3d 834, 838 & Harman v. Mono General Hospital (1982) 131 Cal.App.3d 607, 613)); see State of California v. Superior Court, supra, 32 Cal.4th at 1237 [a failure to satisfy the claim requirements of the Tort Claims Act bars the plaintiff from bringing suit against that entity].)

A plaintiff must allege facts sufficient to demonstrate compliance or excuse from compliance of the Tort Claims Act. (State of California v. Superior Court, supra, 32 Cal.4th at 1243, quoting Burgdorf v. Funder (1966) 246 Cal.App.2d 443, 447) [“...the language of the amended claim presentation statutes ‘make[s] it clear that ... a plaintiff must still allege in his complaint that he has complied with the claim statute in order to state a cause of action against a public employee.’”].)

The Court notes that Plaintiff’s FAC contains no aversion to a claim pursuant to Gov. Code § 911.2. Plaintiff has used a Form Complaint, of which Section 9 specifically prompts the filing party to list whether they are (1) required to comply with a claims statute and (2) whether they did so. Section 9 of Plaintiff’s FAC is blank.

Nor are there any factual allegations speaking to a government claim made by Plaintiff in connection with this matter. The only allegation which could potentially be construed as such is located on page three of Plaintiff’s attachment to her FAC. There, Plaintiff alleges that she “filed a claim for damages for the carbon monoxide poisoning, and…filed a complaint against the staff hostility against me.” (FAC Exh. A, p. 3.) It is unclear from this allegation that Plaintiff is referring to a claim pursuant to Gov. Code § 911.2. Plaintiff does not allege who these claims were made to, when they were made, or that the claims are the result of the same alleged behavior which serves as the basis for this litigation.

Regardless, the Court has taken judicial notice of four Tort Claims Act claims that Plaintiff submitted to the City throughout 2023. (See DMR Exhs. A-D.) A review of these claims reveals they are all related to Plaintiff’s loss of her EHV. None of these claims address the violation of a specific civil right or the publication of any defamatory statement, only Plaintiff’s general assertion that the City refuses to honor her rights as a tenant.

Given the above, the Court finds that Plaintiff fails to allege facts sufficient to constitute her Civil Rights and Defamation causes of action. The FAC is devoid of any facts establishing compliance or excuse from compliance of the Tort Claims Act in connection with these two causes of action.

Accordingly, the City’s demurrer to the third and fourth causes of action is SUSTAINED with 20 days’ leave to amend. The Court permits leave to amend on grounds that Plaintiff may have additional government claims not attached to the FAC or judicially noticed. 

5^th COA – Intentional Infliction of Emotional Distress – Sustained without Leave to Amend

This cause of action suffers from the same defect as Plaintiff’s causes of action for Negligence and Business Tort in that it states no statutory liability upon which the claim is based.

Accordingly, the demurrer to the fifth cause of action is SUSTAINED. The Court denies leave to amend as it does not appear further factual allegations would allow Plaintiff to bring a common law claim for Intentional Infliction of Emotional Distress against a government entity. To the extent that Plaintiff believes she can sustain such a claim, she must allege its basis in statute.

Conclusion

The Court sustains the demurrer to the first, second, and fifth causes of action without leave to amend. To the extent that Plaintiff believes the City was negligent, committed a business tort, or intentionally inflicted emotional distress upon her, she must state her claims against them according to statute.

The Court sustains the demurrer to the third and fourth causes of action with 20 days’ leave to amend. Although Plaintiff has not attached any government claims pursuant to Gov. Code § 911.2 to support these causes of action, it is not impossible that she could rectify this deficiency on amendment.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

The City of Burbank’s Demurrer came on regularly for hearing on October 4, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO THE FIRST, SECOND, AND FIFTH CAUSES OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

THE DEMURRER TO THE THIRD AND FOURTH CAUSES OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND

UNLESS ALL PARTIES WAIVE NOTICE, THE CITY TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  October 4, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles