Judge: Mark H. Epstein, Case: 23SMCV03416, Date: 2023-10-05 Tentative Ruling

Case Number: 23SMCV03416    Hearing Date: October 5, 2023    Dept: I

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Plaintiff filed this action against defendant, a public entity.  The gist of the complaint is that defendant had a duty to provide mirrors in the men’s bathroom.  Due to plaintiff’s condition, when he went into the bathroom and saw no mirror, it was triggering for him and caused him great distress.  Defendant demurs.  There is no opposition filed.

Where the defendant is a governmental agency, sovereign immunity imposes special burdens.  The injured party must identify a “specific statute declaring [the entity] to be liable, or at least creating some specific duty of care by the agency in favor of the plaintiff.  (Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909.)  There is no statute so identified in the complaint and the court’s independent research has disclosed none.

Further, it does not appear that plaintiff has alleged compliance with the claims presentation requirement.  For a governmental agency to be liable in light of sovereign immunity, a plaintiff must first present the claim to that agency.  The agency then has a certain period of time to act on the claim.  The agency can accept the claim (thereby satisfying the injured party), or reject it (or something in between).  If the agency does not accept the claim fully, or fails to act, then the injured party may bring a lawsuit.  But absent first presenting the claim to the agency, the allegedly injured party may not bring a suit in court.  If the plaintiff does not affirmatively allege compliance with the claims procedure, then the complaint is vulnerable to demurrer.  (Pacific Tel. & Tel. Co. v. County of Riverside (1980) 106, Cal.App.3d 183.)  Here, plaintiff does not allege compliance.

It does not appear that these defects can be cured by amendment.  The court will ask the plaintiff about that, and if the plaintiff states that he can cure the problem, the court will reconsider its decision on whether to grant such leave.

The motion to strike is MOOT.