Judge: Melvin D. Sandvig, Case: 24CHCV01613, Date: 2024-08-30 Tentative Ruling

Case Number: 24CHCV01613    Hearing Date: August 30, 2024    Dept: F47

Dept. F47

Date: 8/30/24

Case #24CHCV01613

DEMURRER & MOTION TO STRIKE  TO THE ORIGINAL COMPLAINT

Demurrer & Motion to Strike filed on 7/26/24.

MOVING PARTY: Defendant County of Los Angeles

RESPONDING PARTY: Plaintiff Ramona Gutierrez

NOTICE: ok

Demurrer is to the entire complaint:

            1.  General Negligence

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking Plaintiff’s request for punitive damages. 

RULING: The demurrer is sustained without leave to amend.  The motion to strike is placed off calendar.  The action is dismissed. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 4/29/24, Plaintiff Ramona Gutierrez (Plaintiff) filed a Judicial Council form complaint for general negligence against Defendant County of Los Angeles (Defendant).  The complaint concedes that Defendant is a public entity and Plaintiff alleges that she has complied with the applicable claims statutes.  While Plaintiff alleges that she has suffered wage loss, hospital and medical expenses, general damages, loss of earning capacity and other damages, she does not allege any facts to support her negligence claim.  Plaintiff has attached a claim denial notice dated 10/26/23 from Defendant to the complaint.  

After meet and confer efforts failed to resolve the issues Defendant has with Plaintiff’s complaint, on 7/26/24, Defendant filed and served the instant demurrer to the entire complaint and motion to strike which seeks an order striking Plaintiff’s request for punitive damages.  (See Gupta Decl.).  Plaintiff has not opposed or otherwise responded to the demurrer and/or motion to strike. 

ANALYSIS

Among others, a demurrer may be based on the grounds that a complaint fails to allege sufficient facts to state a cause of action and/or is uncertain.  CCP 430.10(e), (f).   

When pleading a claim against a public entity, such as Defendant, a plaintiff must allege specific facts and a statutory basis for the cause of action.  See Government Code 815(a); Searcy (1986) 177 CA3d 792, 802; Lopez (1985) 40 C3d 780, 795.

As noted above, Plaintiff has failed to plead any facts to support her general negligence claim against Defendant.  Additionally, Plaintiff has not pled a statutory basis for her negligence claim.

Further, Plaintiff’s complaint is untimely.  Government Code 945.6 provides, in relevant part that “any suit brought against a public entity on a cause of action for which a claim is required to be presented ... must be commenced: (1) If written notice is given ... not later than six months after the date such notice is personally delivered or deposited in the mail.’”  Gonzales (1988) 199 CA3d 601, 603-604.  The Court of Appeal has construed the six-month bar to mean an action must be filed within six calendar months or 182 days, whichever is longer.  Id. at 604. 

The denial letter from Defendant which is attached to the complaint is dated 10/26/23.  Six calendar months from 10/26/23 is 4/26/24 and 182 days from 10/26/23 is 4/25/24.  Therefore, Plaintiff had until Friday, 4/26/24, to file this action.  See Gonzales, supra.  This action was not filed until 4/29/24.

CONCLUSION

The demurrer is sustained without leave to amend.  While leave to amend is usually liberally granted, Plaintiff has failed to oppose or otherwise respond to the demurrer and it does not appear that the timeliness defect can be cured by amendment.  Therefore, the demurrer is sustained without leave to amend and the action is dismissed pursuant to CCP 581(f)(1) based on Defendant’s request in the demurrer.  (See Demurrer, p.7:5-11).

The motion to strike is placed off calendar as moot due to the ruling on the demurrer.