SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. BACKGROUND 

On September 7, 2022, plaintiff Stephanie Giselle Hernandez (“Plaintiff”) filed this action against defendant City of Los Angeles, a municipality (the “City”), asserting one cause of action for negligence.  

The Complaint alleges the following: On September 13, 2020, Plaintiff was walking down the street on a sidewalk when she unexpectedly caught her left foot in an 8-inch, uncovered hole on the sidewalk. (Compl., ¶ 5.) When she tried to free her left foot out of the hole, she injured her left knee severely enough to require and obtain surgery. (Compl., ¶¶ 5, 6.) The City owed the public a duty to not create a dangerous condition on the public sidewalk, but breached that duty, causing Plaintiff’s injuries. (Compl., ¶¶ 8, 9, 10.) 

On December 28, 2022, the City filed the instant Demurrer.  

On January 12, 2023, Plaintiff filed a Response to Demurrer (the “Opposition”).  

As of January 27, 2023, no reply to the Opposition has been filed.  

A non-jury trial is set for March 6, 2024.  

II. LEGAL STANDARD 

The party against whom a complaint is filed may demur the pleading on the ground that it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) 

In short, the City argues, since Plaintiff filed this lawsuit on September 7, 2022, more than six (6) months after the City denied her claim on March 2, 2022, her claim is barred by Government Claims Act six-month statute of limitations.  

“The Government Claims Act requires a plaintiff to file a timely claim for money or damages with the public entity as a condition precedent to the filing of a lawsuit.” (The Kind & Compassionate v. City of Long Beach (2016) 2 Cal.App.5th 116, 125, fn. 1 (.) “Failure to do so bars the lawsuit, ‘“even in face of the public entity’s actual knowledge of the circumstances surrounding the claim.”’ [Citation.]” (Ibid.) 

A party can only file a lawsuit if the public entity denies or rejects the claim. (Gov. Code, §§ 905, 945.4 [“Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division”].) “The [claims presentation] requirement (1) ‘“affords the entity an opportunity to promptly remedy the condition giving rise to the injury”’; (2) ‘“permits the public entity to investigate while tangible evidence is still available, memories are fresh, and witnesses can be located”’; and (3) ‘“gives [the public entity] time to engage in appropriate budgetary planning.”’ [Citation.]” (N.G. v. County of San Diego (2020) 59 Cal.App.5th 63, 73.) 

Under the Government Claims Act, if a claim is rejected, the board shall give a written notice to the claimant “in substantially the following form: 

‘WARNING 

‘Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. 

¶ ‘You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.’” 

(Gov. Code, § 913, subd. (b) [emphasis added]; see also Gov. Code, § 945.6 [explaining that the statute of limitations for a party that receives a written notice in accordance with Government Code section 913 (above) is required to file suit against the entity for any cause of action arising from his government tort claim “not later than six months after the date such notice is personally delivered or deposited in the mail”].)  

The Court reviewed the Attachment to the Complaint and notes that the City (a) informed Plaintiff that her claim had been denied and (b) warned her (as required by the statute cited above) that she had six (6) months from the date of the notice to file a court action. Plaintiff failed to file this action within those six (6) months.  

  In her Opposition, Plaintiff does not deny that her pleading is barred by the statute of limitations.  

Instead, she argues that her attorney inadvertently calendared the six-month deadline to September 13, 2022, the anniversary date of the injury, rather than September 2, 2022, the proper sixth month point from the March 2 date on the Notice of Denial of her claim. (Opposition, p. 3:14-18.)  

Therefore, Plaintiff asks the Court to exercise its discretion under Code of Civil Procedure section 473 and ignore the statute of limitations because it was due to her attorney’s mistake, inadvertence, surprise, or excusable neglect that caused her to miss the deadline by 5 days. (Opposition, pp. 3:7-12; 3:19-27.) 

Code of Civil Procedure section 473, subdivision (b) (“Section 473(b)”) provides for two distinct types of relief—commonly differentiated as “discretionary” and “mandatory”—from certain prior actions or proceedings in the trial court. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124.) “Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney.  Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’” (Ibid., internal citations and quotation marks omitted, quoting Code Civ. Proc., § 473, subd. (b).)   

However, relief under Section 473(b) only applies to “a judgment, dismissal, order, or other proceeding taken against …” the applicant. Here, there is no judgment, dismissal, order, or other proceeding taken against the Plaintiff yet.  

In any event, the discretionary and mandatory provisions relief provisions of Section 473(b) do not relieve parties from their failure to comply with statutes of limitations. (See Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th 927, 932 (“Castro”) [“The 1992 amendments added the word ‘dismissal’ to both the discretionary and mandatory provisions of section 473. Where the same word is used in more than one place in a legislative enactment, we presume the same meaning was intended in each instance. [Citations.] If ‘dismissal,’ as used in the discretionary provisions of section 473, does not authorize relief from failure to comply with the statute of limitations, the identical term as used in the mandatory provision has the same effect”].) As the California Court of Appeal discussed at length is Castro, using Section 473(b) in such situations would “create a loophole through which a plaintiff may escape the bar of the statute of limitations.” (Castro, supra, 47 Cal.App.4th at p. 933.) 

For those reasons, the Court finds it proper to sustain the demurrer.  

“‘Where the defect raised … by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.’ [Citations.] ... It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleader’s action. [Citation.]” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174–1175 (“Velez”).) 

However, the burden is on the Plaintiff “to articulate how [she] could amend [her] pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; Velez, supra, 142 Cal.App.4th at p. 1175.) To satisfy that burden, Plaintiff “must show in what manner [she] can amend [her] complaint and how that amendment will change the legal effect of [her] pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) 

Here, Plaintiff has not articulated how she can amend her pleading to render it sufficient. 

Accordingly, the Court sustains the demurrer, without leave to amend.  

IV. CONCLUSION 

The Demurrer is SUSTAINED, without leave to amend.  

The Complaint filed by Plaintiff Stephanie Giselle Hernandez against Defendant City of Los Angeles, a Municipality, is dismissed, with prejudice.  

Moving party to give notice.  

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar. 

 

        Dated this 1st day of February 2023