Judge: H. Jay Ford, III, Case: 23SMCV01549, Date: 2023-08-24 Tentative Ruling

Case Number: 23SMCV01549    Hearing Date: August 24, 2023    Dept: O

  Case Name:  Harland v. City of West Hollywood, et al.

SUBJECT:                DEMURRER TO FAC

MOVING PARTY:  Defendant City of West Hollywood  

RESP. PARTY:        Plaintiff Michelle Harland

TENTATIVE RULING

            Defendant City of West Hollywood’s Demurrer to the FAC is OVERRULED pursuant to Malear v. State (2023) 89 Cal.App.5^th 213, 221-222.  Plaintiff pleads substantial compliance with Government Code §945.4.  Defendant City’s RJN is GRANTED.  Defendant is ordered to answer in 20 days. 

            “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. C. §945.4. 

            “The board shall act on a claim in the manner provided in Section 912.6, 912.7, or 912.8 within 45 days after the claim has been presented. If a claim is amended, the board shall act on the amended claim within 45 days after the amended claim is presented.”  Gov. C. §912.4(a).

            “Timely claim presentation is not merely a procedural requirement, but is a condition precedent to plaintiff's maintaining an action against defendant.  Only after the public entity's 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 the public entity.”  Lowry v. Port San Luis Harbor District (2020) 56 Cal.App.5th 211, 219 (plaintiff’s action was barred due to premature filing of lawsuit before District took action on his application to file late claim). 

However, a plaintiff need not allege strict compliance with the statutory claims presentation requirement.  See Malear v. State (2023) 89 Cal.App.5^th 213, 221-222. In Malear, the plaintiff filed his original complaint two days before the government entity affirmatively rejected his claim.  Id. at 221.  Approximately three months after the government entity rejected his claim, the plaintiff filed an amended complaint pursuant to CCP §472, including new allegations of compliance with the statutory claims presentation requirement.  Id. at 219.  The defendants had not yet appeared.  Id. at 219.

Based on these facts, the Court of Appeals found plaintiff had substantially required with the statutory claims presentation requirement and reversed the trial court’s order sustaining defendants’ demurrer without leave to amend based on noncompliance with GC §945.4.  Id. at 222.  The Court in Malear distinguished Lowry on grounds that the plaintiff in Malear filed an amended complaint before the defendants appeared in the action:

“An amended complaint supersedes all prior complaints, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment.  Consistent with these rules of civil practice, and unlike the situation in Lowry, Malear filed the first amended complaint alleging denial of his government claim before defendants appeared in the action. That amended complaint operated to supersede the prematurely-filed original complaint, which ceased to have any effect. On this record, we conclude Malear has demonstrated substantial compliance with the claim presentation requirement of the Act.”  Id. at 221. 

            Plaintiff filed her original complaint on 4-7-23.  See Defendant’s RJN, Ex. A, Original Complaint. Plaintiff alleged in the original complaint, “Prior to the filing of this action, Plaintiff has presented a claim to these governmental entities. Plaintiff believes in good faith that these claims have been denied, or have not been acted upon, acknowledged, or responded to in any way, or will be denied in due course.”  Id. at ¶3.

Plaintiff filed her FAC on 5-22-23.  See Defendant’s RJN, Ex. C.  Plaintiff alleges in the FAC that she presented a claim to Defendant City of West Hollywood on 4-5-23.  Id. at ¶3.  Plaintiff alleges more than 45-days have passed as of the filing of the FAC since she submitted her claim.  Id. Plaintiff is therefore relying on Government Code §912.4(a) to establish that the claim has already been denied by operation of law.  Plaintiff’s allegations in her original and FAC regarding compliance with the Government Tort Claims Act do not conflict. 

Defendant first appeared in this action on 5-23-23.  Defendant filed a demurrer on that date.  See Defendant’s RJN, Ex. D. 

The procedural history of Plaintiff’s case is analogous to that of Malear and is distinguishable from Lowry for the same reasons as Malear.  Plaintiff filed an amended complaint pursuant to CCP §472 before Defendant appeared in the action.  Based on Plaintiff’s FAC, she pleads substantial compliance with Government Code §945.4. 

Defendant argues Plaintiff filed her original complaint on 4-7-23 before Defendant received Plaintiff’s Government Tort Claim on 4-10-23. The date on which Defendant received the claim is irrelevant.  Plaintiff’s allegation that she submitted her claim on 4-5-23, two days before filing the complaint, must be accepted as true on demurrer.  See FAC, ¶3; Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 (on demurrer, court accepts as true all factual allegations in a complaint, including those facts that may be implied or inferred from those expressly alleged). 

Defendant’s demurrer based on failure to plead compliance with Government Code §945.4 is OVERRULED.