Judge: Lynne M. Hobbs, Case: 20STCV40501, Date: 2023-12-13 Tentative Ruling

Case Number: 20STCV40501    Hearing Date: March 6, 2024    Dept: 30

MARGARET STEPHENS, AN INDIVIDUAL vs CITY OF BURBANK, A PUBLIC ENTITY, et al.

TENTATIVE

Defendant’s demurrer is SUSTAINED without leave to amend. Defendant’s motion to strike is DENIED. Moving party is ordered to give notice.

Request for Judicial Notice

Defendant requests the court take judicial notice of the claim of Margaret Stephens as presented to the City and the denial of the same.

The request is granted. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368 n. 1 (“The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.”).)

Legal Standard

Demurrer

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 Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of Ashlee P. Clark which satisfies the meet and confer requirements. (Code Civ. Proc. §§ 430.41; 435.5.)

Discussion

I. Demurrer -- Failure to Comply with Tort Claims Act

City of Burbank (“Defendant”) demurs to the SAC, contending that Plaintiff failed to comply with the Tort Claims Act. Defendant explains that the SAC alleges the statutory basis of Plaintiff’s sole claim as Vehicle Code § 17001, which attaches liability to a public entity like the City related to the negligent operation of a motor vehicle. Yet, the Tort Claim submitted by Plaintiff prior to this litigation outlined the cause of Plaintiff’s injuries an equipment failure. Defendant contends that the factual basis for recovery is not “fairly reflected” in the government claim.

“The Government Act (§ 810 et seq.) establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. (§ 911.2.) The failure to do so bars the plaintiff from bringing suit against that entity. (§ 945.4.) The claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action. The policy underlying the claims presentation requirements is to afford prompt notice to public entities. This permits early investigation and evaluation of the claim and informed fiscal planning in light of prospective liabilities.” (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1219, citations omitted.)

“Government Code section 945.4 requires, as a prerequisite to maintenance of an action against a public entity for damages arising out of an alleged tort, the timely filing of a claim, and its rejection. Section 910 provides that the claim must include a general description of the injuries and the names of the public employees who caused them. Furthermore, ‘‘If a plaintiff relies on more than one theory of recovery against the [governmental agency], each cause of action must have been reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’ [Citations.]’ [Citation.]” (Fall River Joint Unified School District v. Superior Court (1983) 206 Cal.App.3d 431, 434.)

A claim is in “substantial compliance” with claims presentation requirements if the government entity is apprised of the claim and has an opportunity to investigate and settle it and incur no prejudice resulting from Plaintiff’s failure to strictly comply. (Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal. App. 3d 70, 75.) However, the causes of action asserted in the complaint must be “fairly reflected” in the government claim. (Fall River, supra at 434.) The complaint cannot allege a set of facts “entirely different from those first noticed.” (Fall River, supra at 435-436.)

Here, Plaintiff filed a tort claim with the City of Burbank on June 9, 2020. (Clark Decl. ¶ 3, RJN Ex. 1.) The claim outlines that she was injured when a tie down for her electric scooter did not work correctly causing the scooter to fall over. (Ibid.) However, the SAC alleges a cause of action for negligent operation of motor vehicle under Vehicle Code section 17001.

The SAC further alleges that Defendant breached its duties to Plaintiff by failing to manage, maintain, drive, operate, and/or repair a City bus and/or the equipment thereon, resulting in Plaintiff’s wheelchair to topple over while Plaintiff was seated in said wheelchair, thereby proximately causing injuries.

Under Vehicle Code § 17001, “A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment.” (emphasis added.)

The Court finds that the factual allegations in the SAC relating to negligent operation of the vehicle and the cause of action for negligent operation of a vehicle is entirely different than the facts presented in the claim to the City relating to the equipment issue. A plaintiff may not include causes of action in a complaint that have not been fairly reflected in a written claim submitted to the public entity. (Fall River Joint Unified Sch. Dist. supra, 206 Cal.App.3d at 436.)

As a result, the demurrer is SUSTAINED. The Court has granted a judgment on the pleadings with leave to amend. Plaintiff amended, albeit untimely, and now the Court has sustained a demurrer to that complaint. As Plaintiff has the burden to establish how the complaint can be amended to state a valid cause of action, and has declined to file an opposition so stating, the Court sustains the demurrer without leave to amend.

II. Motion to Strike SAC for Failure to Timely File Amended Complaint After Granting of Motion for Judgment on the Pleadings

On September 19, 2023, this Court granted Defendant’s motion for judgment on the pleadings, allowing Plaintiff 20 days leave to amend the complaint. (9/19/23 Minute Order.) Defendant argues Plaintiff failed to timely file an amended complaint, and therefore, moves to strike the SAC and enter judgment in Defendant’s favor.

CCP section 438(h)(4)(A) states: if a motion for judgment on the pleadings is granted with leave to file an amended complaint, and the amended complaint is filed after the time to file it has expired, then the court may strike the complaint. (Code Civ. Proc., § 438, subd. (h)(4)(A).) Here, it is undisputed that Plaintiff filed an untimely amended complaint. However, Defendants state the Plaintiff attempted to file the FAC, which was rejected by the clerk. It appears that Plaintiff attempted to file the FAC within 30 days with the understanding that it had 30 days leave to amend. As such, the Court exercises its discretion and declines to strike the complaint and enter judgment.

Conclusion

Based on the foregoing, Defendant’s demurrer is SUSTAINED without leave to amend. Defendant’s motion to strike is DENIED.