Judge: Michael E. Whitaker, Case: 21STCV33971, Date: 2023-04-13 Tentative Ruling

Case Number: 21STCV33971    Hearing Date: April 13, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Francisco Rosas Monterrosas and Hugo Garcia Rosas (collectively, Plaintiffs) sued Defendant City of Pico Rivera(City) based on incident wherein Plaintiffs were purportedly assaulted by a third party assailants at the Pico Rivera Sports Arena.  City moves to strike Plaintiffs’ Complaint based on their failure to complete the government claims presentation requirement.  Plaintiffs oppose the motion.  City replies.

ANALYSIS

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

City moves to strike Plaintiffs’ Complaint for Plaintiffs’ failure to timely comply with the claim presentation requirement of the Government Claims Act.  Specifically, City asserts that the Court’s April 29, 2022, order denying Plaintiffs’ petition for relief from the claims presentation requirements establishes that the requirements have  not been met.  Hence, Plaintiffs’ Complaint should be dismissed.  (See Minute Order April 29, 2022.)

1.      GOVERNMENT CLAIM PRESENTATION REQUIREMENT

Per the Government Claims Act, a party with a claim for money or damages against a public entity must present a written claim directly with that entity.  (Gov. Code, § 905.)  And under Government Code section 945.4, “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented until a written claim 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.”  (Munoz v. State of Cal. (1995) 33 Cal.App.4th 1767, 1776; City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894.)  Further, an action against a public employee is barred if an action against the employing public entity would be barred by the failure to satisfy the Government Claims Act. (Gov. Code, § 950.2.) The claim presentation requirement provides a public entity with an opportunity to evaluate the claim and decide whether to pay on the claim.  (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474.) 

Accordingly, “[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.”  (Gov. Code, § 911.2, subd. (a).)  “When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.”  (Gov. Code, § 911.4.)  “The board shall grant or deny the application within 45 days after it is presented to the board.”  (Gov. Code, § 911.6, subd. (a).) 

            Failure to allege facts demonstrating or excusing compliance with the claim presentation requirements subjects a claim against a public entity to a demurrer, or to motion for summary judgment, nonsuit, motion for judgment on the pleadings or motion to strike.  (Toscano v. County of Los Angeles, (1979) 92 Cal.App.3d 775, 783.)  “Moreover, a plaintiff need not allege strict compliance with the statutory claim presentation requirement.  Courts have long recognized that a claim that fails to substantially comply with sections 910 and 910.2, may still be considered a ‘claim as presented’ if it puts the public entity on notice both that the claimant is attempting to file a valid claim and that litigation will result if the matter is not resolved.”  (Id. at p. 1245 [cleaned up].)  

             First, the Court notes that the Complaint is devoid of any allegations relating to Plaintiffs’ compliance, substantial compliance, or excuses of failing to comply, with the claim presentation requirements, and thus the Court finds the Complaint on its face is subject to City’s motion to strike.  Second, the Court notes, as Plaintiffs concede in their opposition, that the Court has previously denied Plaintiffs’ petition for relief from the provisions of the government claim requirement.  (See also Minute Order, April 29, 2022.)

Consequently, the Court finds that the Complaint, on its face, fails to comply with the claim presentation requirements of the Government Claims Act. 

2.      LEAVE TO AMEND

Plaintiffs have the burden of showing in what manner the amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action.  (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.)  The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim.  (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.)  Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.”  (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) 

Here, Plaintiffs state in their opposition that since the Court’s denial of their petition for relief from the claims presentation requirements, they have filed an Application for Leave to File a late claim with City.  However, Plaintiffs aver that neither City nor City’s Counsel has yet to respond to the application.  Moreover, Plaintiffs have filed and served a Motion for Relief of Government Code section 945.4 set for hearing on September 26, 2023.  As such, the Court finds that Plaintiffs’ attempts to address and remedy issues with the claims presentation requirements is sufficient to meet their burden in establishing how they could amend the complaint accordingly.  

CONCLUSION AND ORDER

Therefore, the Court grants City’s motion to strike Plaintiffs’ Complaint for Plaintiffs’ failure to comply with the claim presentation requirements under Government Claims Act with leave to amend.  The Court orders Plaintiffs to file and serve an amended complaint within 30 days after the Court rules on Plaintiffs’ Motion for Relief of Government Code section 945.4.

The Clerk of the Court shall provide notice of the Court’s ruling.