Judge: Jon R. Takasugi, Case: 22STCV27162, Date: 2023-02-15 Tentative Ruling

Case Number: 22STCV27162    Hearing Date: February 15, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND.

            Plaintiff’s Complaint is ordered dismissed, with prejudice.       

On 8/22/2022, Plaintiff Neil Breitbard (Plaintiff) filed suit against the State of California and the California Department of Corrections and Rehabilitations (collectively, Defendants), alleging breach of contract.

            Now, Defendants demur to Plaintiff’s Complaint.

Discussion

            Defendants raise a number of grounds for why Plaintiff’s Complaint is deficient including that: (1) it does not comply with the Government Tort Claims Act (GTCA); (2) Plaintiff’s parole term was determined in accordance with the state framework and could not have been the subject of agreement or negotiation; (3) Defendants are not the proper parties to the lawsuit; (4) Plaintiff’s request has no foundation in law; (5) Plaintiff’s claims are barred under the statute of limitations; and (5) Plaintiff’s claims are barred under Heck v. Humphrey (1994) 512 U.S. 477.

            In opposition, Plaintiff does not dispute that he has not complied with the GTCA. Rather, he explains that “[w]ith little time left in the four-year statute of limitations for breach of contract, Plaintiff filed this suit on August 22, 2022 just four days before the statute ran out. Even if Plaintiff had known about the Government Claims Act, there was not time to file a claim and then file the suit within the statute of limitations.” (Opp., 3: 21-23.) Plaintiff then argues that his suit should be allowed despite this non-compliance because it is “quite obvious” that the State would have never accepted the claim, and thus he would have been allowed to file this action.

            However, this Court does not have discretion to enforce or not enforce the GTCA, and Plaintiff did not provide any support to indicate otherwise. As such, given that the Court is bound to enforce the GTCA requirement, it is unable to allow Plaintiff’s non-complying suit to proceed.

            On this basis, the Court must sustain Defendants’ demurrer. However, in so doing, the Court notes that Plaintiff’s claim does appear to be brought against the wrong parties. By Plaintiff’s own admission, his plea agreement was entered into by himself and the San Diego District Attorney’s Office, an agency of the County of San Diego. The State of California and CDCR are separate legal entities to both the County of San Diego and San Diego District Attorney’s Office. Neither CDCR nor the State of California were parties to Plaintiff’s plea agreement, and the County of San Diego has not been named in this action.  

            Based on the foregoing, Defendants’ demurrer is sustained, without leave to amend.

It is so ordered.

Dated:  February    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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