Judge: John J. Kralik, Case: 24NNCV01437, Date: 2024-11-08 Tentative Ruling
Case Number: 24NNCV01437 Hearing Date: November 8, 2024 Dept: NCB
North
Central District
|
horace b.
williams, iii,
et al., Plaintiffs, v. city of pasadena aka pasadena city, Defendant. |
Case
No.: 24NNCV01437 Hearing
Date: November 8, 2024 [TENTATIVE] ORDER RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
Plaintiffs Horace B. Williams, III and
Theresa Alfred (“Plaintiffs,” in pro per) filed a complaint on May 7, 2024
against Defendant City of Pasadena aka Pasadena City (“Defendant” or “City”)
for “Accounting, Civil Procedure 454,” “Violation of Tom Bane Act Civil Code
Procedure 52.1,” “Violation of Penal Code 832.5,” “Fraud, Civil Code Procedure
3294,” and “Breach of Contract.”
(Complaint Caption at p.1.) Plaintiffs
are husband and wife, and Mr. Williams is alleged to be a dependent adult.
Plaintiffs allege that in September 2022,
Pasadena Police received a phone referral alleging neglect and abuse of an
elder person. Plaintiffs allege that in
the absence of useful or correct information, a Pasadena employee from the
Police Department was dispatched to Plaintiffs’ residence on a welfare check on
September 28, 2022, but the call proved to be a false report. Plaintiffs allege that their peace, quiet,
and enjoyment were interrupted and their privacy invaded upon. They allege that the final outcome of the
call was misrepresented by Defendant as “resolved” when it should have been
reported as “unfounded.” Plaintiffs
allege that they requested that Pasadena Police employees initiate charges of
Penal Code, § 148 against the reporting party, but were denied.
B.
Motions on Calendar
On August 28, 2024, City filed a demurrer
and motion to strike portions of the complaint.
The Court is not in receipt of an
opposition brief.
REQUEST
FOR JUDICIAL NOTICE
With the demurrer papers, City
requests judicial notice of: (1) Claim No. 2024-0049 as filed with the City by
Mr. Williams on August 29, 2023 pursuant to the claims presentation
requirements (Razmik Serkisian Decl., Ex. A); (2) Notice of Rejection of Claim
No. 2024-0049 and proof of service showing it was served via mail on September
27, 2023 (Serkisian Decl., Ex. B); (3) the online docket for LASC Case No.
24NNCV01437 as of May 7, 2024 (Danielle St. Clair Decl., Ex. C); and (4) Article
X of the Charter of the City of Pasadena (St. Clair Decl., Ex. F). The requests are granted. (Evid. Code, § 452.)
DISCUSSION
RE DEMURRER
Defendant demurs to the complaint
in its entirety on the ground that it fails to state sufficient facts to
constitute a cause of action against it.
A.
Government Claim
Defendant demurs to the entirety of the
complaint, arguing that Plaintiffs have not pled compliance with the Government
Claims Act and have not complied with the applicable statute of limitations.
Pursuant to Government Code, §§ 905 and
945.4, no suit for money or damages may be brought against a public entity
until a written claim has been presented to the public entity. 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.) “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.) 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); Gov’t Code, § 945.4.)
A review of the complaint
shows that Plaintiffs have not alleged facts showing that they complied with
the Governments Claims Act by submitted a claim. Thus, the demurrer to the entirety of the
complaint is sustained on this basis.
In addition, Defendant argues that
even if the Court were to consider Mr. Williams’ submitted claims (as submitted
with the request for judicial notice), the action would be time-barred. According to the judicially noticeable
documents, Mr. Williams submitted a claim on August 29, 2023, which was
rejected on September 27, 2023. (RJN,
Exs. A-B.) The complaint was filed on
May 7, 2024, which is over 6 months from the September 27, 2023 rejection
letter. As such, the action is
time-barred.
The demurrer to the complaint
is sustained. Plaintiffs
have the burden of showing the manner in which they 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.) The demurrer is
not opposed. Thus, Plaintiffs have not
provided facts showing how they can cure the defect regarding the time-barred
nature of the complaint.
B.
Accounting (CCP § 454)
“A cause of action for an accounting
requires a showing that a relationship exists between the plaintiff and
defendant that requires an accounting, and that some balance is due the
plaintiff that can only be ascertained by an accounting.” (Teselle v. McLoughlin (2009) 173
Cal.App.4th 156, 179.) “An action for
accounting is not available where the plaintiff alleges the right to recover a
sum certain or a sum that can be made certain by calculation.” (Id.)
CCP § 454 states:
It
is not necessary for a party to set forth in a pleading the items of an account
therein alleged, but he must deliver to the adverse party, within ten days
after a demand thereof in writing, a copy of the account, or be precluded from
giving evidence thereof. The court or judge thereof may order a further account
when the one delivered is too general, or is defective in any particular.
If
the pleading is verified the account must be verified by the affidavit of the
party to the effect that he believes it to be true; or if the facts are within
the personal knowledge of the agent or attorney for the party, or the party is
not within the county where the attorney has his office or from some cause
unable to make the affidavit, by the affidavit of the agent or attorney.
(CCP
§ 454.)
In the complaint, Plaintiffs allege that
City breached its contractual obligations with “the agency” and acted under
color of law to commit accounting fraud to secure services billed, which
grossly benefited City financially.
(Compl. at p.5.)
The complaint fails to allege sufficient
facts for an accounting cause of action.
Plaintiffs have not alleged a type of relationship to form the basis of
an accounting claim and they have not alleged what balance is due. City also argues that Mr. Williams’ submitted
government claim does not allege facts regarding to accounting fraud, such that
it would be barred. The government claim
submitted by Mr. Williams does not include a claim for accounting. (See Serkisian Decl., Ex. A.)
The demurrer to the accounting cause of
action is sustained.
C.
Violation of the Tom Bane Civil Rights Act (Civ. Code,
§ 52.1)
Civil Code, § 52.1(b) states in relevant
part: “If a person or persons, whether or not acting under color of law,
interferes by threat, intimidation, or coercion, or attempts to interfere by
threat, intimidation, or coercion, with the exercise or enjoyment by any
individual or individuals of rights secured by the Constitution or laws of the
United States, or of the rights secured by the Constitution or laws of this
state, the Attorney General, or any district attorney or city attorney may
bring a civil action for injunctive and other appropriate equitable relief in
the name of the people of the State of California, in order to protect the
peaceable exercise or enjoyment of the right or rights secured.”
In the complaint, Plaintiffs allege that
City deprived Plaintiffs’ rights and failed to apply the minimum safeguards
demanded by due process of law under the 14th Amendment of the
Constitution. (Compl. at p.5.)
Plaintiffs have not alleged facts showing
that City interfered or attempted to interfere with Plaintiffs’ rights by
threats, intimidation, or coercion. As
such, the demurrer to this cause of action is sustained.
D.
Violation of Penal Code, § 832.5
Penal Code, § 832.5 is regarding citizens’
complaints against personnel.
In the complaint, Plaintiffs allege that
City failed to establish a procedure to investigate complaints by members of
the public against the personnel of the Pasadena Police Department or
agencies. They allege that this was
intentionally done to subvert accountability to actions in violation of policy
and law. (Compl. at p.5.)
As pointed out by City in the demurrer
papers, the complaint fails to allege facts that Plaintiffs made a personal
complaint and that City failed to investigate the complaint. As such, this cause of action too fails to
allege sufficient facts. The demurrer to
this cause of action is sustained.
E.
Fraud
Government Code, § 818.8 states: “A public
entity is not liable for an injury caused by misrepresentation by an employee
of the public entity, whether or not such misrepresentation be negligent or
intentional.”
Plaintiffs allege that City engaged in
false reporting and failed to property report facts as required by the
law. (Compl. at p.5.) Plaintiffs allege that they are entitled to
punitive damages for fraud pursuant to Civil Code, § 3294 because City
intentionally ignored procedural protections designed by the legislature to
ensure constitutional rights are not violated.
(Compl. at p.6.)
Not only is the fraud claim devoid of any
specific allegations to support fraud, City is entitled to immunity under
Government Code, § 818.8 for misrepresentation.
As such, the demurrer to the fraud cause of action is sustained.
F.
Breach of Contract
The essential elements of a cause of
action for breach of contract are: “(1) the
existence of the contract, (2) plaintiff's performance or excuse for
nonperformance, (3) defendant's breach, and (4) the resulting damages to
plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
The complaint fails to
allege facts regarding a contract entered between Plaintiffs and City. Without an underlying contract, the breach of
contract cause of action fails to allege sufficient facts. The demurrer to the breach of contract cause
of action is sustained.
DISCUSSION RE MOTION TO STRIKE
City moves to
strike allegations for punitive damages from the complaint.
In light of the ruling on the
demurrer, the motion to strike is taken off-calendar as moot.
CONCLUSION AND ORDER
Defendant City of Pasadena’s demurrer to
the complaint is sustained. The Court is
inclined to sustain the demurrer without leave to amend, but will give
Plaintiffs an opportunity at the hearing to provide additional facts to show
whether amendment of the complaint is possible, as they did not file an
opposition to the demurrer. Plaintiffs
have the burden of showing the manner in which they 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.) If
Plaintiffs fail to appear at the hearing, the demurrer will be sustained
without leave to amend.
Defendant City of Pasadena’s motion to
strike portions of the complaint is taken off-calendar as moot in light of the
ruling on the demurrer.
Defendant shall
provide notice of this order.
DATED:
November 8, 2024 ___________________________
John
Kralik
Judge
of the Superior Court