Judge Katherine Chilton, Case 22STLC05081 2023-02-15 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC05081, Date: 2023-02-15 Tentative Ruling

Case Number: 22STLC05081 Hearing Date: February 15, 2023 Dept: 25

PROCEEDINGS: DEMURRER

MOVING PARTY: Defendant City of Los Angeles

RESP. PARTY: None

DEMURRER

(CCP §§ 430.10)

TENTATIVE RULING:

The Demurrer filed by Defendant City of Los Angeles is SUSTAINED without leave to amend.

SERVICE:

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[ X ] Correct Address (CCP §§ 1013, 1013a) OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of February 8, 2023. [ ] Late [ ] None

REPLY: None filed as of February 8, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On August 3, 2022, Plaintiff Krystal L. Simpson (“Plaintiff”), in propria persona, filed an action against Defendant City of Los Angeles (“Defendant”) for professional negligence and defamation.

On December 30, 2022, Defendant filed the instant Demurrer (“Demurrer”) and Request for Judicial Notice (“RJN”). No opposition has been filed.

II. Request for Judicial Notice

Defendant requests that the Court take judicial notice of the Declaration of Michael Valdivia, Deputy City Clerk, as a public record, pursuant to Evidence Code §§ 452 and 453 and California Rules of Court, rules 3.113(1)[1] and 3.1306(c). (RJN: Exhibit A.)

Defendant’s Request for Judicial Notice of Exhibit A: Declaration of Michael Valdivia is GRANTED.

III. Legal Standard

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) There are two types of demurrers – general demurrers and special demurrers. (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.) Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered. (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at 318.) It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written. (Code Civ. Proc., § 430.10(f).) However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer. (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

IV. Discussion

a. Meet and Confer

On December 22, 2022, counsel for Defendant telephoned Plaintiff and spoke to her about the deficiencies in the Complaint. (Marcus Decl. ¶ 3.) Counsel asked whether Plaintiff would withdraw or amend the Complaint, but Plaintiff declined. (Ibid.) Counsel informed Plaintiff of Defendant’s intention to file a Demurrer to the Complaint. (Ibid.)

The Court finds counsel’s declaration regarding his conversation with the Plaintiff sufficient to satisfy the meet and confer requirement.

b. Demurrer

Plaintiff has filed the instant action against Defendant City of Los Angeles for professional negligence and defamation. The Complaint alleges the following:

Requested report of incident on 12/21/21 via subpoena of LAPD/City of LA. BodyCam footage with audio of Officer RUELAS #43739. Incident reported/documented (Report #21-1015901.) Evidence will show City of Los Angeles Officer Ruelas #43739 was privy to the facts of the case from both parties, yet used his personal discretion to favor the opposing party. A subpoena will allow the release of the proof needed to support my claim of professional negligence and Defamation. While knowingly and falsely naming me as a suspect in my own defense.

(Compl.)

Defendant moves for an order sustaining a Demurrer to the Complaint without leave to amend on the grounds that “Plaintiff failed to comply with the claims presentation requirement of the California Government Tort Claims Act and failed to state a claim upon which relief can be granted against the City, a public entity.” (Demurrer pp. 1-2.)

First, Government Code § 945.4 requires a written claim to be presented to a public entity before a lawsuit for money or damages against this entity may be initiated in Court. (Ibid. at p. 3.) According to Government Code §§ 911.2 and 911.4, such a claim must be brought no later than six months after the accrual of cause of action or one year after the accrual of cause of action with leave from the public entity. (Ibid.) Furthermore, if the public entity denies an application for leave to present a claim, claimant may seek relief from these requirements from a court; however, relief from court must be sought no more than one year after the accrual of cause of action. (Ibid., citing to Government Code § 946.6, City of Los Angeles v. Superior Court (1993) 14 Cal. App. 4th 621, 627, Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal. App. 3d 480, 488.) Here, the Complaint does not allege that Plaintiff filed a claim with the City of Los Angeles prior to initiating the lawsuit and Defendant does not have a record of a claim filed by Plaintiff. (Demurrer pp. 3-4; RJN: Ex. A.) Defendant argues that more than one year has passed since the alleged incident on December 21, 2021, and thus, neither Defendant nor the Court can grant relief sought by Plaintiff. (Demurrer p. 4.)

Second, according to the Government Tort Claims Act, specifically Government Code § 815(a), “[e]xcept as otherwise provided by statute: (a) [a] public entity is not liable for an injury.” (Ibid.) Plaintiff’s allegations that Defendant is liable “based on a single and conclusory allegation of ‘Professional Negligence and Defamation’ is insufficient as a matter of law” and therefore, the Complaint “fails to state facts sufficient to constitute a cause of action against the City.” (Ibid.)

The Court finds that Plaintiff’s Complaint fails to allege facts demonstrating that Plaintiff complied with the California Government Tort Claims Act in filing a claim with the City of Los Angeles. Given that the time for filing a claim has passed and the City of Los Angeles does not have a record of any claims filed by Plaintiff, the Court finds that Plaintiff’s claim is barred.

Accordingly, Defendant’s Demurrer is SUSTAINED.

c. Leave to Amend

Given that Plaintiff’s claim is barred, as discussed above, there is no reasonable possibility that the defect can be cured by amendment.

For this reason, Defendant’s Demurrer to the Complaint is SUSTAINED without leave to amend.

V. Conclusion & Order

For the foregoing reasons,

The Demurrer filed by Defendant City of Los Angeles is SUSTAINED without leave to amend.

Moving party is ordered to give notice.

[1] California Rules of Court, rule 3.113(1) does not exist and is erroneously cited.