Judge Lee S. Arian, Case Number: 23STCV19691, Date: 2023-11-29 Tentative Ruling

wrongdoing against Plaintiff’s child at school. On August 17, 2023, Plaintiff Kimberly Tucker (“Plaintiff”) filed a Complaint against Defendant Culver City Unified School District (“Defendant”). The Complaint does not set forth any identifiable causes of action and only makes factual allegations. Plaintiff alleges that her child was verbally abused by Defendant and its staff for over 3 years. (Complaint, 1:16-17.) Plaintiff also alleges that she was lost at school in 1996, which also happened to her child. (Complaint, 2:22-28.)

On October 30, 2023, Defendant filed a demurrer to the entire Complaint on the grounds that the complaint is procedurally defective because: (1) Plaintiff failed to file a petition for relief from the government claim requirement; (2) Plaintiff failed to submit a timely government tort claim; and (3) Plaintiff failed to allege compliance with the prelitigation governmental claims presentation requirements. Defendant also demurs to the first, second, and third causes of action in the Complaint; however, there are no specific labeled and articulated causes of action alleged in the Complaint.

On November 16, 2023, Defendant filed a reply brief. On November 22, 2023, Plaintiff filed an “Amended Complaint to Defendants’ Demurrer to the Complaint”, however, such document is not an amended pleading but is an opposition to the demurrer.

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.)

Before filing a demurrer, the demurring party is required to meet and confer “in person, by telephone, or by video conference with the party who filed the pleading that is subject to the demurrer for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).)

Defendant’s counsel attests to e-mailing and mailing Plaintiff meet and confer correspondence advising Plaintiff of the issues in the Complaint. (Brim Decl., ¶ 9; Exhibit E.) Defendant’s counsel thereafter attempted to telephonically meet and confer with Plaintiff; however, the meet and confer correspondence was unsuccessful as Plaintiff did not respond to counsel’s telephone calls to discuss the purported defects in the Complaint. (Id., ¶¶ 8-11.)

Thus, the Court finds that the meet and confer requirement has not been met. The Court, however, will not overrule or sustain the demurrer due to the insufficient meet and confer process. (Code Civ. Proc., § 430.41, subd. (a)(4)) and will exercise its discretion to move forward with the demurrer at this time. The Court reminds the parties of the need to comply with the requirements of the Code of Civil Procedure.

“Under Evidence Code section 452, a court may take judicial notice of [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Chacon v. Union Pacific Railroad (2020) 56 Cal.App.5th 565, 572 [citations omitted].) “[J]udicial notice may be taken of public records, . . . [but] not . . . of the facts asserted within them.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754 [citations omitted].)

“The Tort Claims Act requires any civil complaint for money or damages first be presented to and rejected by the pertinent public entity.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776 [citations omitted].) “[F]ailure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.” (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)

“The failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity.” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118 [citation omitted].) “Claims for personal injury must be presented not later than six months after the accrual of the cause of action, and claims relating to any other cause of action must be filed within one year of the accrual of the cause of action.” (Ibid. [citation omitted].) A lawsuit against a public entity must be filed “not later than six months after the date such notice is personally delivered or deposited in the mail.” (Gov. Code, § 945.6, subd. (a)(1).)

Here, the Court finds that Plaintiff has failed to allege compliance with the Tort Claims Act. The Court also finds that Plaintiff filed to submit a timely government claim to Defendant. According to Defendant’s Request for Judicial Notice, in her claim form to Defendant, Plaintiff identified Plaintiff and “Bria J.” as claimants. (Request for Judicial Notice, Exhibit A.) Plaintiff alleges that the damage or injury occurred in January 2018 for a lost child, racial bullying in February 2019, and blocked emails in 2021. (Id.) Plaintiff, however, did not submit her government claim to Defendant until October 18, 2022. (Id.) All of the alleged events articulated in her government claim occurred more than six months prior to the filing of such claim. Plaintiff therefore did not submit a timely claim to Defendant.

Furthermore, Plaintiff failed to timely file the instant action after Defendant rejected her claim on January 13, 2023, and mailed such rejection to Plaintiff on January 15, 2023. (Request for Judicial Notice, Exhibit B.) Plaintiff submitted a second claim on behalf of Bria Johnson on November 15, 2022, and such claim was rejected on January 23, 2023. This action was not commenced until August 17, 2023, which is more than six months after the rejection of both claims and therefore this action is untimely.

Due to the above-identified deficiencies, the Court need not address the other arguments raised in support of the demurrer.

The Court acknowledges that while Plaintiff is representing herself in pro per, pro per “litigants are held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)

While it appears to the Court that Plaintiff may not be able to allege sufficient facts to move forward in light of the foregoing discussion, the Court will give Plaintiff the opportunity to allege such facts. Thus, the Court SUSTAINS the demurrer of Defendant to the Complaint with 20 days leave to amend. The Court orders Plaintiff—if and when a First Amended Complaint is filed—to set forth identifiable and labeled causes of action.

The demurrer of Defendant to the Complaint is SUSTAINED with 20 days leave to amend.

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 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.

Hon. Lee S. Arian

Judge of the Superior Court