Judge Lee W. Tsao, Case Number: 23NWCV03903, Date: 2024-11-12 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV03903, Date: 2024-11-12 Tentative Ruling

Case Number: 23NWCV03903 Hearing Date: November 12, 2024 Dept: C

Estate of Lori Braza, et al. vs City of Bellflower, et al.

Case No.: 23NWCV03903

Hearing Date: November 12, 2024

Tentative Ruling

Defendant City of Bellflower’s Demurrer is OVERRULED.

Plaintiffs to give notice.

Background

This is a personal injury case. In a Complaint filed on December 1, 2023, Plaintiffs Estate of Lori Braza and Julia Braza as Successor-in-Interest of Decedent Lori Braza (“Plaintiffs”) allege that on or about December 20, 2022, “Decedent LORI BRAZA was lawfully walking on Cedar St. near 8536-8522 Cedar St. when she tripped on an uneven, broken, raised and/or deteriorating portion of the pavement and/or sidewalk. This caused Plaintiff to fall and sustain serious injuries and damages.” (Complaint, pp. 6-8.) Plaintiffs assert causes of action for General Negligence and Premises Liability against City of Bellflower, County of Los Angeles, State of California, California Department of Transportation, and Cedar Private Homes.

Defendant City of Bellflower (“the City”) demurs to the First and Second Causes of Action on the grounds that Plaintiffs failed to comply with the mandatory provisions of the Government Claims Act before filing the instant lawsuit.

Evidentiary Objections

The Court rules as follows to the objections presented to by Plaintiffs:

Objection Nos. 1, 2, 3, 4, 5, 6, 7 are OVERRULED.

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Ct. (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at 747.)

Discussion

The City argues that Plaintiffs Estate of Lori Braza and Julia Braza, as Successor-in-Interest of Decedent Lori Braza, were each required to file their own government claim with the City on or before January 29, 2024, which was six months after the death of Lori Braza on July 27, 2023.

The California Tort Claims Act (Act) (Gov.Code, § 810 et seq.) governs actions against public entities and public employees. The timeliness of such actions is governed by the specific statute of limitations set forth in the Government Code, not the statute of limitations applicable to private defendants. (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.) Under the Act, no person may sue a public entity or public employee for “money or damages” unless a timely written claim has been presented to and denied by the public entity. (Gov.Code, § 945.4.) A claim pertaining to a cause of action for personal injury must be filed within six months after the cause of action accrues. (County of Los Angeles, supra, 127 Cal.App.4th at 1267.) “The general rule for defining the accrual of a cause of action sets the date as the time ‘when, under the substantive law, the wrongful act is done,’ or the wrongful result occurs, and the consequent ‘liability arises.’ [Citation.] In other words, it sets the date as the time when the cause of action is complete with all of its elements.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)

Failure to allege facts in the complaint demonstrating compliance with the prelitigation governmental claims presentation requirements subjects the complaint to a general demurrer. (State of Calif. v. Sup. Ct. (Bodde) (2004) 32 Cal.4^th 1234, 1239.)

Here, Plaintiffs have adequately pleaded compliance with the California Tort Claims Act. The Complaint alleges that the City was served with a claim for damages on June 9, 2023. (Complaint, Attachment page, Second Cause of Action.) This date is within six-months of the date of injury on December 20, 2022.

Survival causes of action are governed by CCP §377.30 which provides: “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest … and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” Therefore, this lawsuit, which survives the death of Lori Braza, is properly commenced by her Successor-in-Interest, Julia Braza.

The City argues that Plaintiffs were required to file separate government claims within 6 months of Lori Braza’s death. This argument presumes that Plaintiffs are seeking damages for wrongful death. They are not. Unlike a wrongful death action, a survival action is a cause of action that existed while the decedent is alive and survives the decedent. The decedent's personal representative or successor in interest may commence that action. (Grant v. McAuliffe (1953) 41 Cal.2d 859, 864; Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1256, 1264 [“Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event.”] Simply put, because Plaintiffs are not seeking damages for wrongful death, they need not allege that such claims were filed in compliance with the California Tort Claims Act.

The City’s demurrer is OVERRULED.