Judge Lee W. Tsao, Case 22NWCV01168 2023-05-23 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01168, Date: 2023-05-23 Tentative Ruling

Case Number: 22NWCV01168 Hearing Date: May 23, 2023 Dept: C

MORENO v. CITY OF DOWNEY, et al.

CASE NO.: 22NWCV01168

HEARING: 5/23/23 @ 10:30 AM

Defendant Downey Unified School District’s demurrer to Plaintiff’s complaint is SUSTAINED with 10 days leave to amend.

Moving Party to give NOTICE.

Defendant Downey Unified School District (“DUSD”) demurs to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action.

Plaintiff Lizette Moreno alleges that “On or about December 4, 2021, Plaintiff was on the subject premises. As Plaintiff was attending a football game at the subject premises, she was unexpectedly and violently assaulted by Defendants DOES 1-10 in the presence of Defendant JOHN DOE, an employee of Defendants CITY OF DOWNEY, a public entity; DOWNEY UNIFIED SCHOOL DISTRICT, a public entity; LOS ANGELES COUNTY, a public entity; LOS ANGELES COUNTY OFFICE OF EDUCATION, a public entity; CALIFORNIA DEPARTMENT OF EDUCATION, a public entity; and DOES 11-100, inclusive.” (Complaint, ¶ 13.) Based thereon, the Complaint asserts causes of action for:

1. Assault (v. Does 1-10)

2. Battery (v. Does 1-10)

3. IIED (v. Does 1-10)

4. Negligence (v. all Defendants)

5. Negligent Hiring, Supervision, and Retention (v. all Defendants)

The Tort Claims Act limits the liability of public entities and details the procedure a plaintiff must follow when instituting a claim “against a public entity” for “money or damages.” (Gov. Code §§ 815, 945.4.) Under the Tort Claims Act, before initiating a lawsuit “against a public entity” for “money or damages,” a plaintiff must present a written claim to the public entity alleged to have caused him or her injury, and that claim must be “acted upon... or... deemed to have been rejected.” (Gov. Code § 945.4.) Presentation of a timely written claim to the public entity is “a condition precedent to plaintiff's maintaining an action against” that public entity. (Shirk v. Vista Unified Sch. Dist. (2007) 42 Cal. 4th 201, 209.) Therefore, a plaintiff's complaint must allege facts demonstrating the presentation and rejection of a claim pursuant to the Tort Claims Act, or excuse from the presentation requirement, in all actions to which the claim procedures apply. (Chase v. State (1977) 67 Cal. App. 3d 808.)

¶¶ 8-12 allege that Plaintiff presented claims to the other public entity Defendants, but fails to allege that Plaintiff presented a claim to the Downey Unified School District.

In opposition, Plaintiff contends that Plaintiff’s agency allegations would excuse the failure to present a claim with the Downey Unified School District. However, Plaintiff’s legal authorities do not apply to the context of a tort claims filing.

Accordingly, the demurrer is SUSTAINED with 10 days leave to amend.