Judge: John J. Kralik, Case: 22BBCV00980, Date: 2024-03-08 Tentative Ruling

Case Number: 22BBCV00980    Hearing Date: March 8, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations

Plaintiff John Doe (in pro per, “Plaintiff”) alleges that on November 15, 2021, he went to the Bank of America branch at 5025 Lankershim Blvd. in North Hollywood.  He alleges that while he was waiting in line at the bank, he began feeling Covid-like symptoms.  Plaintiff alleges that he informed the bank manager of his health concerns, and the bank manager called the paramedics upon Plaintiff’s insistence.  Plaintiff alleges that while he was waiting for the paramedics, he wanted to finish a transaction at the bank; however, when it was his turn, 2 paramedics from Defendant Los Angeles Fire Department appeared and made him go outside immediately, even though Plaintiff alleges that he needed only a moment to finish his bank transaction.  Plaintiff alleges that he told the paramedics about his concern about his ID and bank card inside the bank, the paramedics informed him that his bank transaction had been declined and that they had his cards, and they told him they would restrain him if he resisted.  Plaintiff alleges that he requested to be taken to USC Verdugo Hills Hospital, but they took him to Sherman Oaks Hospital instead.  Plaintiff alleges that the paramedics tried to give him medication, but he refused to take any medication that he was allergic to or that he was not given information about.  Plaintiff alleges that paramedics/Defendants Jeffrey Blake and August Weidman each injected him with Versed without his consent.  Plaintiff alleges that on November 16, 2022, he awoke at Defendant Sherman Oaks Hospital and was diagnosed with rhabdomyolysis, but it had failed to inform him that he had suffered a form of heart attack during his stay.

The complaint, filed November 16, 2022, alleges causes of action in the caption for: (1) negligence; (2) violation of 42 U.S.C. § 1983; (3) medical battery; (4) NIED; (5) IIED; (6) libel; (7) negligent misrepresentation; and (8) intentional misrepresentation.  The body of the complaint does not list these causes of action out separately. 

B.    Demurrer on Calendar and First Amended Complaint

On January 26, 2024, Defendants City of Los Angeles, erroneously and additionally named as Los Angeles Fire Department (“City”) and August Weidmen filed a demurrer to the complaint. 

On February 27, 2024 at 12:02 a.m., Plaintiff filed the first amended complaint (“FAC”).  However, in order to be timely, Plaintiff was required to file the FAC by February 26, 2024, which would have been the due date for his opposition brief to the demurrer.  As the FAC was not timely filed, the initially filed complaint shall be deemed the operative pleading and the FAC will hereby stricken. 

On March 1, 2024, City and Weidmen filed a reply brief.

REQUEST FOR JUDICIAL NOTICE

            Defendant requests judicial notice of Exhibits: (A) claim for damages No. C22-18688, which was submitted to the City of Los Angeles by or on behalf of the Plaintiff identified as John Doe on April 15, 2022; and (B) written denial of Claim No. C22-18688, sent to the Plaintiff identified as John Doe on May 4, 2022.  The request is granted.  (Evid. Code, § 452(c), (h).) 

DISCUSSION

            Defendants City and Weidmen demur to the complaint on the ground that Plaintiff did not commence this action until November 16, 2022, which was past the 6-month statutory deadline under the Government Claims Act. 

“Presentation of a claim, when required by law, is a mandatory prerequisite to maintenance of any cause of action against a public entity. [Citation.] In those circumstances in which a claim must be presented, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general demurrer. [Citation.] Actions for breach of contract fall within the scope of claims for money or damages and thus compliance with the Tort Claims Act filing requirements is compelled. [Citation.]”  (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 31.)  Any suit brought against a public entity for monetary damages must be filed not later than 6 months after the date the public entity has acted upon or rejected the claim.  (Gov’t Code, §945.6(a)(1), Law Revision Commission Comments; Gov’t Code, §945.4.)  “Compliance with the claim requirement is a condition precedent to suing the public entity. ‘Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action.’”  (Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 906.)

            According to the judicially noticeable documents, the Plaintiff identified as John Doe submitted a government claim with the City on April 15, 2022.  (Def.’s RJN, Ex. A.)  On May 4, 2022, a rejection letter regarding the claim was sent.  (Id., Ex. B.)  Thus, if Plaintiff had 6 months from the date of the rejected claim to file this lawsuit, or November 6, 2022.  Plaintiff filed this action on November 16, 2022. 

            Based on the judicially noticed documents, the lawsuit is untimely.  The Court has reviewed the government claim submitted from which it appears that the claim relating to this complaint alleges the same facts regarding Plaintiff’s visit to the bank, the arrival of LAFD paramedics, his admission to Sherman Oaks Hospital, etc.  Def.’s RJN, Ex. A.)  Thus, based on the allegations of the complaint and judicially noticeable documents, Plaintiff has not alleged sufficient facts in the complaint to show that he properly and timely complied with the Government Claims Act requirements. 

            The demurrer to the complaint is sustained.  The Court will consider at oral argument whether Plaintiff can allege facts showing that his filing of the complaint on November 16, 2022 was timely in relation to the date of rejection of his claim.  The Court notes that Plaintiff has submitted an untimely First Amended Complaint which fails to deal with the defect in pleading. Plaintiff has the burden of showing the manner in which he can amend the pleadings to correct this defect and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

CONCLUSION AND ORDER

Defendants City of Los Angeles, erroneously and additionally named as Los Angeles Fire Department and August Weidmen’s demurrer to the complaint is sustained. The Court will hear oral argument as to whether leave to amend should be granted.