Judge: Joel R Wohlfeil, Case: 37-2023-00032169-CU-NP-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 19, 2024

03/22/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Non-PI/PD/WD tort - Other Demurrer / Motion to Strike 37-2023-00032169-CU-NP-CTL HASIA-WELCH VS CITY OF SAN DIEGO OFFICE OF THE CITY TREASURER [E-FILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 01/18/2024

The general Demurrer (ROA # 32) of Defendant City of San Diego ('Defendant' or 'City') to the First Amended Complaint ('FAC') by Plaintiff Toya Hasia-Welch ('Plaintiff'), is OVERRULED.

The City is ordered to file and serve its Answer within twenty (20) days of this hearing.

Defendant's Request (ROA # 35) for judicial notice is GRANTED.

'Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.' Gov. Code 815.6.

The Law Revision Commission Comments for section 815.6 state, in part: 'This section declares the familiar rule, applicable to both public entities and private persons, that failure to comply with applicable statutory or regulatory standards is negligence unless reasonable diligence has been exercised in an effort to comply with those standards.' Plaintiff seeking to hold a public entity liable under Government Code section 815.6 must specifically identify the statute or regulation alleged to create a mandatory duty. In re Groundwater Cases (2007) 154 Cal. App. 4th 659, 689.

Once identified, determining whether the enactment at issue creates a mandatory duty is a question of law. Id. To construe a statute as imposing a mandatory duty on a public entity, the mandatory nature of the duty must be phrased in explicit and forceful language. Id. It is not enough that some statute contains mandatory language. Id. In order to recover, Plaintiff must show there is some specific statutory mandate that was violated by the public entity. Id. The enactment at issue must be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. Id. Calendar No.: Event ID:  TENTATIVE RULINGS

3087394 CASE NUMBER: CASE TITLE:  HASIA-WELCH VS CITY OF SAN DIEGO OFFICE OF THE CITY  37-2023-00032169-CU-NP-CTL As alleged, when Plaintiff drove the vehicle away there was no parking violation attached to the vehicle.

'If a vehicle is unattended during the time of the violation, the peace officer or person authorized to enforce parking laws and regulations shall securely attach to the vehicle a notice of parking violation setting forth the violation ....' Veh. Code 40202(a).

'If, during the issuance of a notice of parking violation, without regard to whether the vehicle was initially attended or unattended, the vehicle is driven away prior to attaching the notice to the vehicle, the issuing officer shall file the notice with the processing agency. The processing agency shall mail, within 15 calendar days of issuance of the notice of parking violation, a copy of the notice of parking violation .... to the registered owner.' Veh. Code 40202(d).

'The notice of parking violation shall be accompanied by a written notice of the amount of the parking penalty due for that violation, the address of the person authorized to receive a deposit of the parking penalty, a statement in bold print that payments of the parking penalty for the parking violation may be sent through the mail, and instructions on obtaining information on the procedures to contest the notice of parking violation.' Veh. Code 40203.

Section 40207 became operative in 2016, and provides in part as follows: 'The notice of delinquent parking violation ... shall contain the information specified in ... Section 40203, and, additionally shall contain a notice to the registered owner that, unless the registered owner pays the parking penalty or contests the citation within 21 calendar days from the date of issuance of the citation or 14 calendar days after the mailing of the notice of delinquent parking violation or completes and files an affidavit of nonliability that complies with Section 40208 or 40209, the renewal of the vehicle registration shall be contingent upon compliance with the notice of delinquent parking violation. If the registered owner, by appearance or by mail, makes payment to the processing agency within 21 calendar days from the date of issuance of the citation or 14 calendar days after the mailing of the notice of delinquent parking violation, the parking penalty shall consist solely of the amount of the original penalty. Additional fees, assessments, or other charges shall not be added.' (emphasis added) The statutory scheme cited above sets forth explicit, express and specific statutory mandates. The scheme expressly requires the City, or its designee, to undertake specific actions with respect to parking violations.

Paragraphs 46 - 49 of the FAC allege facts demonstrating that the statutes cited above create mandatory duties and that the City did not comply with these duties. This scheme is designed to protect against the harm alleged by Plaintiff: the payment and collection if improper fees and assessments due to improper notice of the amounts due. As a result, both causes of action sufficiently allege a claim premised on section 815.6, and both sufficiently allege plaintiff's standing to pursue this claim.

As alleged, Plaintiff's injury was caused by a failure to follow and apply the parking violation statutory scheme set forth above. Although the FAC alleges false statement made by City employees, these alleged statements evidence the misapplication of the statutory scheme, rather than forming the basis of the claim. As currently alleged, the City is not immune from liability pursuant to Government Code section 818.8.

'A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action ....' Gov. Code 911.2(a).

Paragraph 23 of the FAC alleges that Plaintiff paid 'the citation in full in the amount of $116.00 on April 21, 2022, using her credit card.' Calendar No.: Event ID:  TENTATIVE RULINGS

3087394 CASE NUMBER: CASE TITLE:  HASIA-WELCH VS CITY OF SAN DIEGO OFFICE OF THE CITY  37-2023-00032169-CU-NP-CTL Paragraph 24 alleges that on April 26, 2022, plaintiff submitted and obtained 'a chargeback request with her credit card issuer, Capital One, in the amount of $58.50, which was the difference between the $112.50 Notice of Delinquent Parking Violation and the original fine of $57.50.' Paragraph 25 alleges that on August 31, 2022, the City sent Plaintiff a letter demanding $84.04, which equals the money Capital One refunded to plaintiff.

Paragraph 29 alleges: 'The additional fees, assessments, and/or other charges remained on PLAINTIFF'S account, and continued to accrue additional fees, assessments, and / or other charges in the form of daily interest until in or around May 19, 2023, when PLAINTIFF was forced to pay the remaining balance associated with the Notice of Delinquent Parking Violation, in full, in order to be permitted to renew her vehicle registration.' The FAC alleges that the claim did not ultimately accrue until May 19, 2023. In the alternative, facts are alleged demonstrating a continuing violation that commenced in April 2022 and continued until May 2023. The government claim form is dated January 5, 2023, which was either before the claim accrued or during the continuing violation. In either event, the claim form was timely submitted, and the City's argument is not persuasive.

The City argues the FAC 'contains an impermissible factual variance in Allegations' as compared to the government claim. This argument is not persuasive. The claim form describes the same transactions and events, and alleges the same statutory violations.

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