Judge: Gail Killefer, Case: 19VECP00553, Date: 2023-08-30 Tentative Ruling

Case Number: 19VECP00553    Hearing Date: August 30, 2023    Dept: 37

HEARING DATE:                 Wednesday, August 30, 2023.

CASE NUMBER:                   19VECP00553

CASE NAME:                        Robert Garber v. County of Los Angeles, et al.

MOVING PARTY:                 Defendants County of Los Angeles and Department of Social Services

OPPOSING PARTY:             Petitioner Robert Garber

TRIAL DATE:                        Not Set.

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer to First Amended Petition

OPPOSITION:                        1 May 2023

REPLY:                                  4 May 2023

TENTATIVE:                         Defendants’ demurrers are sustained without leave to amend. The First Amended Petition is dismissed with prejudice. Defendant to give notice.

Background

On December 12, 2019, Petitioner Robert Garber (“Garber”) in pro per sought a writ of administrative mandate compelling Respondents County of Los Angeles (“County”) and Department of Social Services (“DSS”) to reinstate him to the CalFresh program and pay him monthly benefits withheld from January 2020 to October 2022. On March 9, 2023, the writ of mandate was denied. Petitioner filed an appeal of the March 9, 2023, order denying his petition for a writ of mandamus, but the appeal was dismissed on August 15, 2023.

The First Amended Petition (“FAP”), filed on November 3, 2022, alleged claims for (1) fraud and (2) reinstatement of CalFresh benefits. After Petitioner’s cause of action for an administrative write was denied, the only remaining cause of action is Petitioner’s fraud claim.

On March 23, 2023, the County and DSS filed each filed a demurrer, with a joint memorandum of points and authorities, to Petitioner’s remaining fraud claim in the FAP.  On May 1, 2023, Petitioner filed opposing papers.  The County and DSS filed a joint reply on May 4, 2023.

Discussion

I.         Legal Standard

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly-pled facts as true, and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations, or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) 

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 complainant to show the court that a pleading can be amended successfully. (Id.)

II.        Demurrer[1] to First Amended Complaint

            A.        First Cause of Action - Fraud

The County and DSS (collectively “Defendants”) each filed a demurrer to Petitioner’s fraud cause of action on the grounds that: (1) it has no statutory basis and is a common-law tort to which Defendants are immune; (2) is barred because Petitioner failed to comply with the pre-suit presentation requirements of Gov. Code § 945.4; and (3) Petitioner cannot establish causation and injury because Petitioner’s claim is predicated on the wrongful denial of CalFresh benefits to which he is not entitled.

The FAP fails to allege specific facts to support the fraud cause of action as the FAP merely requests that Defendants file a verified response to the charge of fraud. (FAP at p. 12.)

The Government Claims Act abolishes all common law or judicially declared forms of liability for public entities, except for such liability that may be required by state or federal constitution. (See Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899; see Gov. Code, § 815(a).)  “[P]ublic entities may only be held liable only if a statute is found declaring them to be liable.” (Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932.) “‘In view of the fact that tort causes of action against public entities are now based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Every fact essential to the existence of statutory liability must be pleaded.’” (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App 4th 1056, 1061 citing Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) “It is a plaintiff's responsibility to plead facts sufficient to show their cause of action lies outside the breadth of any applicable statutory immunity.” (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585 [internal citation and quotation marks omitted].) Here, Petitioner fails to show Defendants are not immune and the Government Claims Act does not apply. In fact, Petitioner’s opposition concedes that his fraud claim is a common law claim and that Defendants are immune from liability. (Opp. at 2:10-12.)

Under California law, no person may sue a public entity or public employee for money or damages unless a timely written claim has been presented to and acted on or deemed rejected by the public entity. (Gov. Code, §§ 905, 912.4, 945.4; see also Stockett v. California Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 44, 47; Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, 1415.) Defendants assert that Petitioner was required to present his claim for money damages by delivering or mailing it to the Department of General Services. The FAP fails to plead facts that show that Petitioner submitted his claim to the Department of General Services prior to filing this action. “[T]he timely filing of a written claim with the proper officer or body is an element of a valid cause of action against a public entity.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374; Gov’t Code §§ 900.4, 905.) Accordingly, Petitioner’s fraud cause of action fails because Petitioner cannot show he timely presented a claim to the Department of General Services.

 “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Id. at 645.)

Defendants assert that Petitioner’s fraud cause of action also fails because Petitioner cannot show injury or causation.  Petitioner’s fraud claim is predicated on the same allegation as his writ petition that Petitioner is entitled to CalFresh benefits.  A court has already ruled that Petitioner is not entitled to those benefits due to his immigration status. (FAP at p.12; March 9, 2023, Order.) Moreover, the court also agrees that Petitioner’s fraud claim is not pled with the requisite specificity as it fails to state specific facts that give rise to the fraud claim.

For the reasons stated above, the demurrer is sustained.

Petitioner’s opposition fails to state how the deficiencies noted above may be capable of successful amendment and instead requests leave to file a second amended complaint premised on personal injury and abuse of process. Defendants assert that leave to amend should be denied because leave to amend is sought three and a half years after the Petitioner had already filed his petition.  Petitioner’s claim for personal injury and abuse of process would also fail due to Petitioner’s failure to comply with the claim’s presentation requirement of the Government Claims Act. As Petitioner has failed to show that the FAP is capable of successful amendment, the demurrer is sustained without leave to amend.

Conclusion

Defendants’ demurrer is sustained without leave to amend.