Judge Lynne M. Hobbs, Case Number: 23STCV26754, Date: 2024-02-28 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV26754, Date: 2024-02-28 Tentative Ruling

Case Number: 23STCV26754 Hearing Date: February 28, 2024 Dept: 30

JASON REEDY, AN INDIVIDUAL vs KEVIN DE LEON, et al.

TENTATIVE

Defendant City of Los Angeles’ demurrer is SUSTAINED without leave to amend. The complaint as to the City of Los Angeles is DISMISSED. The motion to strike is DENIED as moot.

Request for Judicial Notice

Defendant requests the court take judicial notice of (1) Plaintiff’s claim for damages dated December 16, 2022, (2) Notice of Rejection of Plaintiff’s claim, mailed on January 30, 2023 and (C) Plaintiff’s complaint in this action, filed on November 1, 2023.

The requests are unopposed and granted. (Evid. Code § 452(c)-(d).) The court notes it is not taking judicial notice of any testimony, but rather is taking judicial notice of the filing and contents of the government claim. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369-70 n. 1; see also Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-53.)

Legal Standard

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.)

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of Carol Attarian which satisfies the meet and confer requirements. (Code Civ. Proc. § 430.41.)

Discussion

Government Code § 945.5 provides, “No suit for damages may be maintained against a public entity unless the claim has been presented to it.”

Government Code § 911.2(a) states, “[a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in

Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” Government Code § 945.6 provides in relevant part:

(a) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit 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 must be commenced:

(1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.

…

“Government Code § 945.6 is a statute of limitation.” (Cole v. Los Angeles Unified School Dist. (1986) 177 Cal.App.3d 1, 3; see also Dowell v. Contra Costa County (2013) 928 F.Supp.2d 1137, 1152 [“Under § 945.6, if the board delivers written notice of its decision to the complainant, the complainant has six months to file a civil suit … This functions as a statute of limitations.”].) “It is well established by case law that the six-month limitation period in Government Code section 945.6 starts to run when the notice of rejection has been either personally served or deposited in the mail.” (Cole, 177 Cal.App.3d at 4.)

Here, Defendant avers that Plaintiff presented his claim for damages on December 16, 2022, which was rejected on January 20, 2023, and thus, Plaintiff was required to file his complaint on or before July 19, 2023. Defendant contends that because Plaintiff did not file the complaint until November 1, 2023, the complaint is untimely and barred by the six-month statute of limitations of Government Code § 945.6.

The judicially noticeable evidence establishes that Plaintiff presented a claim for injuries concerning the underlying incident to Defendant on December 16, 2022, and that Defendant mailed a notice of rejection on January 30, 2023. (Request for Judicial Notice Exhs. A-B.) Consequently, Plaintiff was required to file this action not later than six months after the notice of rejection was deposited in the mail. (Gov. Code § 945.6(a)(1); see also Cole v. Los Angeles Unified School Dist. (1986) 177 Cal.App.3d 1, 4 [“It is well established by case law that the six-month limitation period in Government Code section 945.6 starts to run when the notice of rejection has been either personally served or deposited in the mail and the time is not extended five additional days by Code of Civil Procedure Section 1013.”].)

The six-month limitation period of Government Code § 945.6 means six calendar months, or 182 days, whichever is longer. (Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, 603.) In this case, 182 days or six months after January 30, 2023, was around July 30, 2023. The case was not filed until November 1, 2023.

Leave to Amend

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

In this case, Plaintiff has neither requested leave to amend the complaint, nor has Plaintiff shown whether there is a reasonable possibility of amending the complaint successfully. Therefore, the complaint is sustained without leave to amend. However, if Plaintiff appears at the hearing and can articulate specific facts showing there is a reasonable possibility the complaint can be amended, the court will be inclined to grant 20 days leave to amend.

Defendant’s demurrer to the complaint is sustained without leave to amend.

As the demurrer is sustained without leave to amend, the motion to strike is moot.