Judge: Mark A. Young, Case: 23SMCV03096, Date: 2024-05-22 Tentative Ruling
Case Number: 23SMCV03096 Hearing Date: May 22, 2024 Dept: M
CASE NAME: Cann v. Reed, et al.
CASE NO.: 23SMCV03096
MOTION: Demurrer to the Third Amended
Complaint
HEARING DATE: 5/22/2024
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. 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff
need only allege ultimate facts sufficient to apprise the defendant of the
factual basis for the claim against him. (Semole v. Sansoucie (1972) 28
Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading, or the
construction of instruments pleaded, or facts impossible in law.” (S. Shore
Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations
omitted.)
A special demurrer for uncertainty is
disfavored and will only be sustained where the pleading is so bad that
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
“Liberality in permitting amendment is
the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in
what manner¿plaintiff can amend the complaint, and¿how¿that
amendment will change the legal effect of the pleading.¿(Id.)
ANALYSIS
Defendants
Los Angeles County Metropolitan Transportation Authority and Rickey Reed demur to the entire complaint based upon
the statute of limitations, and as to second cause of action for negligent hiring,
training, supervision and retention.
Statute of Limitations
Defendants assert that the entire
complaint is barred by the statute of limitations. For a statute of limitations
to bar a claim on demurrer, “the defect must clearly and affirmatively appear
on the face of the complaint; it is not enough that the complaint shows that
the action may be barred.” (Committee
for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48
Cal.4th 32, 42, internal quotation marks omitted.) In general, a statute of limitations begins
to run “when the cause of action is complete with all of its elements,” namely,
wrongdoing, causation, and resulting harm.
(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)
Under the Government Claims Act, the
general rule is that any party with a claim for money or damages against a
public entity must first file a claim directly with that entity; only if that
claim is denied or rejected may the claimant file a lawsuit. (Gov. Code §§ 905,
945.4; City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894.)
This provides the public entity with an opportunity to evaluate the claim and
decide as to whether it will pay on the claim. (Roberts v. County of Los
Angeles (2009) 175 Cal.App.4th 474.)
Upon presentation of the claim, the
entity may: (1) approve the claim, (2) reject the claim, (3) give notice the
claim is insufficient, or (4) do nothing. (Gov. Code § 912.6.) Section 915.4 (a)(2)
requires that the denial notice be personally delivered, mailed, or emailed. If
mailed, the entity must address the notice “to the address, if any, stated in
the claim or application as the address to which the person presenting the
claim or making the application desires notices to be sent or, if no such
address is stated in the claim or application, by mailing the notice to the
address, if any, of the claimant as stated in the claim or application.” If the
public entity sends proper written notice of the rejection, plaintiff has six
months thereafter to file suit against the entity. (Gov. Code § 945.6(a); see
Gov. Code §§ 912.6, 912.8.) Otherwise, a plaintiff has two years from the date
of injury to file suit. (Id.)
The
complaint alleges that Plaintiff was injured in an auto accident on September
22, 2022, involving a bus owned by Defendant Metro. (Compl., ¶ 2.) Plaintiff timely
presented a claim for damages on September 28, 2022. (Compl., ¶ 14.) Metro
rejected the claim on November 22, 2022. (Id.) Based on that date, the deadline
to file his lawsuit would be May 23, 2023. Plaintiff filed his lawsuit on July
7, 2023.
Plaintiff
asserts that Defendant did not properly address the denial notice, and counsel
did not receive it until 8 months after its mailing date. Defendant
contends that the fact that counsel did not receive the rejection because it
was sent to the incorrect address goes beyond the four corners of the complaint.
However, this fact does not go beyond the complaint. The complaint attaches, as
exhibits, the relevant claim and denial letter. On the claim, Mr. Ruszecki is
listed as the attorney, with an address of 10200 Culver Blvd Culver
City, CA 90232. Plaintiff is listed as the claimant, along with his street
address. Pursuant to Government Code section 915.4, the denial notice should
have been mailed to one of these addresses. The proof of service of the denial
notice instead shows that Metro served counsel at 1900 Avenue of the Stars, Los
Angeles CA, 90067. Defendant thereby failed to properly address the denial to any
address stated in the claim. Therefore, the two-year
period from the date of injury would apply, rather than the six-month period
from the date of the denial. As such, the claims are timely.
Accordingly,
the demurrer is OVERRULED based upon the statute of limitations.
Second
Cause of Action
Plaintiff
does not oppose the demurrer and offers to stipulate as to the dismissal of
this cause of action. Accordingly, the demurrer is SUSTAINED without leave as
to the second cause of action.
Defendant
is ordered to file an answer within 10 days.