Judge Lynne M. Hobbs, Case Number: 24STCV04418, Date: 2024-10-24 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 24STCV04418, Date: 2024-10-24 Tentative Ruling

Case Number: 24STCV04418 Hearing Date: October 24, 2024 Dept: 61

MATTHEW C. FOLKE, vs JOHNATHAN COVINGTON, , et al.

TENTATIVE

Defendant City of Los Angeles’ Demurrer to the Complaint is SUSTAINED without leave to amend.

Moving party to give notice.

DISCUSSION

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant City of Los Angeles (Defendant) argues that Plaintiff Matthew C. Folke’s (Plaintiff) claims against it are legally insufficient because the Complaint was filed on February 21, 2024, more than six months after Defendant sent Plaintiff the notice of rejection of Plaintiff’s government claims. (Demurrer at pp. 4–5.)

No cause of action for money or damages may be brought against a public entity “until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.” (Gov. Code § 945.4.) Such a claim must be commenced “not later than six months after the date such notice [of rejection of the claim] is personally delivered or posted in the mail.” (Gov. Code § 945.6, subd. (a)(1).)

The Complaint alleges that Plaintiff filed his government claim on July 14, 2022. (Complaint ¶ 16.) Defendant issued a notice of rejection on August 16, 2022. (RJN Exh. B.) Thus Plaintiff’s complaint was due to be filed by February 16, 2023, six months later. However, the present Complaint was not filed until February 21, 2024, more than one year later.1

Plaintiff argues that he attempted to timely file his Complaint on April 27, 2023, but that the filing was rejected on May 1, 2023. (Demurrer at pp. 1–2; Exhs. 2–3.) But even by Plaintiff’s own timeline, his first attempt to file the complaint was untimely by two months.

Plaintiff in opposition offers various phrases evocative of legal doctrines that could toll accrual of a statute of limitations, such as continuing accrual and equitable tolling, but offers no argument or authority as to how these doctrines apply to this case or excuse the delay between the rejection of the claim and the filing of the action. (Demurrer at pp. 1–5.)

The demurrer is therefore SUSTAINED without leave to amend.

1 The court takes judicial notice of the rejection of Plaintiff’s claim, as judicially noticeable matters are reviewable on demurrer, and include a party’s government claim materials. ((See Hahn, supra, 147 Cal.App.4th at p. 747 [describing how courts consider judicially noticeable matters on demurrer]; Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369 fn. 1 [judicial notice may be taken of the filing and contents of government claims].) The court may therefore consider Defendant’s rejection of the claim on August 16, 2022, in assessing Defendant’s demurrer.