Judge Holly J. Fujie, Case Number: 24STCV13080, Date: 2024-11-05 Tentative Ruling

MOVING PARTY: Defendant California Department of Housing and Community Development (“Defendant”)

On May 4, 2024, Plaintiff filed a complaint (“Complaint”) against Defendant asserting the following causes of action: (1) Breach of Contract; (2) Violation of Unruh Civil Rights Act; (3) Violation of California Civil Code; (4) Negligence; (5) Declaratory and Injunctive Relief; and (6) Intentional Infliction of Emotional Distress – Eviction.

On July 30, 2024, Defendant filed the instant demurrer to Plaintiff’s Complaint (the “Demurrer”). Plaintiff filed an opposition on September 11, 2024, and Defendant filed a reply on October 29, 2024.

· Exhibit A: Plaintiff Scottie J Thompson Jr.’s government claim for $46,310.00 received by the California Department of General Services (“DGS”) on August 8, 2024; and

· Exhibit B: DGS’s September 12, 2024 notice to Plaintiff that his government claim was

The request is GRANTED as these are official records of the State of California (Evid. Code, § 452(d)) and are “not reasonably subject to dispute and [] capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Id., § 452(h).)

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

Prior to filing a suit against a public entity, a plaintiff must comply with the Government Tort Claims Act (“GCA”), which states, in part: “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 . . .” (Gov. Code, § 945.4)

A claim for death or injury to person or personal property shall be presented not later than six months after the accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).) A claim “relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.” (Id.) When a claim required to be presented pursuant to Government Code section 911.2, subdivision (a) is not presented within that time, a written application may be made to the public entity for leave to present that claim. (Gov. Code, § 911.4, subd. (a).) The application shall be presented to the public entity within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application. (Gov. Code, § 911.4, subd. (b).)

The claim presentation requirement “is not merely procedural, but is a condition precedent to maintaining a cause of action and, thus, is an element of the plaintiff’s cause of action.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236.) A party suing a public entity must allege compliance with this requirement, or that a recognized exception exists. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374. A party may allege compliance with this requirement by including a general allegation that “he or she timely complied.” (Id.) “If the plaintiff fails to include the necessary allegations, the complaint is subject to attack by demurrer.” (Id.)

Defendant contends, among others, that Plaintiff’s Complaint is barred in its entirety due to Plaintiff’s failure to demonstrate compliance with the GCA by failing to allege completion of the government claim process and failing to show the filing of a timely government claim.

In his opposition, Plaintiff alleges that he “submitted two government claims to the relevant agency prior to filing this lawsuit, both of which were received by Defendant, confirmed by USPS tracking numbers and Defendant’s attorney’s acknowledgement of receipt on August 6, 2024.” (Opposition, p. 2.)

First, the Court notes that Plaintiff’s allegations of submission of government claims are contained in his opposition, but the Complaint does not so allege. Second, the alleged submission of claims occurred subsequent to the filing of the Complaint; hence it does not establish Plaintiff’s required compliance with the GCA prior to filing a lawsuit against the State. Third, Plaintiff has not alleged that he filed a pre-litigation government claim with DGS; instead, he vaguely alleges that he filed two government claims with “the relevant agency,” which Plaintiff equates to filing with Defendant, given his subsequent allegation that both claims “were received by Defendant.” A potential plaintiff, however, must file all claims for money or damages against the state, specifically here with DGS, before filing a lawsuit against the state. (Gov. Code § 905.2.) Filing a claim with the state agency named in the claim instead of with DGS does not satisfy this legal requirement. (Gov. Code, § 915(b); see also DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991-97.)

Furthermore, as noted above, the Court takes judicial notice of DGS’s September 12, 2024 notice to Plaintiff that his government claim was rejected, stating in relevant part:

Plaintiff’s government claim submitted to DGS was thus out of compliance with the GCA, and DGS has accordingly rejected the claim.

Therefore, Plaintiff has not pled, and he cannot plead, that he has met the pre-litigation claim filing requirements of the GCA.

For these reasons, Defendant’s Demurrer to the entire Complaint is SUSTAINED without leave to amend. It is, therefore, unnecessary for this Court to rule on Defendant’s Motion to Strike.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court