Judge: Michael E. Whitaker, Case: 22STCV07031, Date: 2023-05-11 Tentative Ruling

Case Number: 22STCV07031    Hearing Date: May 11, 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  

MOVING PAPERS:

1.      Notice of Demurrer and Demurrer to Plaintiff’s Complaint; Memorandum of Points and Authorities; Declaration of Cindy A. Shapiro

2.      Request for Judicial Notice

3.      Notice of Errata re: Request for Judicial (Notice)

OPPOSITION PAPERS:

1.      Opposition to City of Norwalk’s Demurrer

REPLY PAPERS:

1.      Reply to Opposition to City of Norwalk’s Demurrer

SUPPLEMENTAL PAPERS: [1]

1.      Supplemental Briefing in Support of Demurrer; Memorandum of Points and Authorities

2.      Supplemental Brief in Opposition to Demurrer to Complaint

3.      Supplemental Reply in Support of Demurrer; Memorandum of Points and Authorities

BACKGROUND

Plaintiff William Kanooni Ekhtiar (Plaintiff) filed a complaint asserting two causes of action against Defendants County of Los Angeles, Los Angeles County Sheriff’s Department, City of Norwalk, Salvador Martinez and Richard Jessie James (collectively, Defendants) for General Negligence (First Cause of Action) and Motor Vehicle (Second Cause of Action).  Plaintiff alleges he sustained injuries when Defendants’ vehicle collided with his vehicle. 

Defendant City of Norwalk (City) demurs to Plaintiff’s complaint pursuant to Code of Civil Procedure section 430.10, on the following grounds: (1) the Court lacks jurisdiction as Plaintiff has not complied with the Government Claims Act; (2) Plaintiff has not stated facts sufficient to constitute a cause of action for General Negligence and the cause of action is uncertain; and (3) Plaintiff has not stated facts sufficient to constitute a cause of action for Motor Vehicle and the cause of action is uncertain.   

Plaintiff filed an opposition to the demurrer, and City filed a reply.  Additionally, in compliance with the Court’s orders of March 22, 2023, Plaintiff and City filed supplemental papers as delineated above. 

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:  . . .  (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States;  . . .  (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (c), (h).)

City seeks judicial notice of Plaintiff’s Claim for Damages presented to City attached as Exhibit A. [2] Under  Evidence Code section 452, subdivisions (c) and (h), the Court grants City’s unopposed request for judicial notice. 

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

1.      GOVERNMENT CLAIMS ACT - PRESENTATION REQUIREMENTS

Per the Government Claims Act (“GCA”), also known as the Tort Claims Act, (Gov. Code, 810 et seq.), a party with a claim for money or damages against a public entity must present a written claim directly with that public 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 in accordance with Section 910 until a written claim therefore 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.”  (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 445 (hereafter Stockett) [cleaned up]; see also Munoz v. State of Cal. (1995) 33 Cal.App.4th 1767.)  In sum, “compliance with the claims provisions is mandatory. Fulfilling the requirements of the tort claims presentation procedure is a condition precedent to filing suit; it is not an affirmative defense.”  (Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1061 (hereafter Castaneda) [cleaned up].)  

            To comply with the GCA presentation requirements, a claimant is compelled to observe Government Code section 910 which provides:

A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following:

(a) The name and post office address of the claimant.

(b) The post office address to which the person presenting the claim desires notices to be sent.

(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.

(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.

(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.

(f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.

(Gov. Code, § 910.) 

Although a government claim need not contain the detail and specificity required of a pleading in a civil action, it nevertheless must fairly describe what the entity is alleged to have done.  When a civil action is filed following the rejection of a government claim, it is acceptable for the complaint to elaborate or add further details to a government claim, but the complaint may not completely shift the allegations and premise liability on facts that fundamentally differ from those specified in the government claim. In other words, the factual basis for recovery in the complaint must be fairly reflected in the government claim.

(Hernandez v. City of Stockton (Apr. 28, 2023, C095259) ___ Cal.App.5th ___ [2023 WL 3142328 at *4] (hereafter Hernandez) [cleaned up].) 

            In Hernandez, the “plaintiff filed a government claim with the City, alleging that it negligently maintained public property by failing to correct a dangerous condition along a sidewalk. [The] plaintiff claimed that he sustained severe injuries when he tripped and fell due to a ‘dangerous condition’ on the City-owned ‘sidewalk surface’ that he identified only as an ‘uplifted sidewalk’. After his government claim was rejected, plaintiff filed this personal injury action, complaining broadly that the ‘sidewalk surface’ harbored a ‘dangerous condition’ that created an unspecified hazard.  He later disclosed during his deposition that he tripped and fell when he stepped into a hole, specifically a tree well with no tree in it.”  (Hernandez, supra, 2023 WL 3142328 at *1.)  The City moved for summary judgment contending that the plaintiff failed to comply with the GCA presentation requirements because the factual basis for recovery was not “fairly reflected” in the plaintiff’s government claim. (Ibid.) 

            The trial court granted summary judgment in the City’s favor.  In affirming the judgment, the Court of Appeal opined: 

This is the type of factual variance that is fatal to a civil action filed against a public entity following the rejection of a government claim, since it amounts to a complete shift in allegations. Courts have consistently held that a civil action (or a claim alleged therein) is barred when, as here, the complaint premises liability on an entirely different factual basis than that stated in the government claim.  . . .   Such actions or claims are barred because they subvert the purpose of the Government Claims Act, which is intended to give the public entity an opportunity to investigate and evaluate its potential liability and, where appropriate, avoid litigation by settling meritorious claims.

 (Hernandez, supra, 2023 WL 3142328 at *5.)  The appellate court found that the variance between the plaintiff’s government claim and the allegations in the civil action were fatal “[d]ue to a complete shift in allegations as to the dangerous condition that allegedly caused plaintiff’s injuries.”  (Id. at *6.) 

            In Stockett, the California Supreme Court considered whether the variance between what the plaintiff asserted in a government claim and the ensuing civil action for wrongful termination ran afoul of the GCA presentation requirements.  In so doing, the California high court reiterated, in part, policies underlying the GCA.

The purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.  Consequently, a claim need not contain the detail and specificity required of a pleading, but need only fairly describe what the entity is alleged to have done.  As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions, the claims statute should not be applied to snare the unwary where its purpose has been satisfied.

(Stockett, supra, 34 Cal.4th at p. 446 [cleaned up].)  In Stockett, the plaintiff asserted certain theories about why he believed he was wrongfully terminated, including opposing sexual harassment in the workplace, in his government claim.  But the plaintiff’s complaint, as amended, asserted other theories about why he was wrongfully terminated, including exercising free speech rights in the workplace.  (Id. at pp. 444-445.) 

            The California Supreme Court, in affirming a jury verdict in favor of the plaintiff, held in part:    

Even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.  The claim, however, need not specify each particular act or omission later proven to have caused the injury. A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an entirely different set of facts. Only where there has been a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim, have courts generally found the complaint barred.  Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.

(Stockett, supra, 34 Cal.4th at p. 447 [cleaned up].)  In particular, the California Supreme Court held that the plaintiff complied with the GCA presentation requirements although there were variances between the government claim and the allegations in the civil action as to why the plaintiff believed he was wrongfully terminated. 

[The plaintiff] stated the termination had been wrongful because it was effected in violation of California public policy. He thus notified JPIA of his wrongful termination cause of action, in compliance with section 954.4's command that each “cause of action” be presented by notice of claim. While Stockett's claim did not specifically assert his termination violated the public policies favoring free speech and opposition to public employee conflicts of interest, these theories do not represent additional causes of action and hence need not be separately presented under section 945.4.

(Ibid.)  Additionally, the California high court noted that “[i]n comparing claim and complaint, we are mindful that so long as the policies of the claims statutes are effectuated, the statutes should be given a liberal construction to permit full adjudication on the merits. If the claim gives adequate information for the public entity to investigate, additional detail and elaboration in the complaint is permitted.”  (Id. at p. 449 [cleaned up].)

            In Castaneda, the plaintiff, who died of cancer after the action commenced, alleged in a complaint that the California Department of Corrections and Rehabilitation (“CDCR”) failed to provide him with adequate health care by not properly diagnosing and treating his cancer in a timely fashion.  In assessing the trial court’s rulings, the Court of Appeal noted in part:

[T]he intent of the Tort Claims Act is not to expand the rights of plaintiffs against governmental entities.  Rather, the intent of the act is to confine potential governmental liability to rigidly delineated circumstances.  . . .  The act creates a bond between the administrative claim and the judicial complaint.  Each theory of recovery against the public entity must have been reflected in a timely claim.  In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint.

(Castaneda, supra, 212 Cal.App.4th at p. 1060 [cleaned up].)  Particularly, the appellate court addressed whether the plaintiff’s government claim complied with the GCA presentation requirements. In finding compliance, the Court of Appeal compared the assertions in the government claim with the assertions in the resultant complaint: 

Castaneda's tort claim explained the circumstances leading to his injury thusly:  Cal DOC failed to provide adequate and necessary medical care for a known serious medical need, resulting in the failure to timely diagnose and treat penile cancer, resulting in penectomy and development of metastatic terminal cancer.

In his ensuing complaint against the State only, Castaneda alleged his action is based on a violation of section 845.6. Section 845.6, as will be amplified later, carves out of the general immunity of the State for injuries to prisoners, limited State liability when a public employee, acting within the scope of his employment, knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care.

(Castaneda, supra, 212 Cal.App.4th at p. 1061 [cleaned up].) 

            “In its motion for judgment on the pleadings, the State specifically argued Castaneda's tort claim did not allege a failure to summon immediate medical care.”  (Castaneda, supra, 212 Cal.App.4th at p. 1061.)  In denying the motion, the trial court determined that the government claim provided CDCR with sufficient information to investigate the plaintiff’s allegations.  Agreeing with the trial court, the Court of Appeal reasoned: 

To be fortified against a demurrer, the complaint should allege the factual basis for recovery that fairly reflects the written claim

Castaneda's tort claim contained the facts sufficient to give the Board notice to investigate and evaluate his claim. The claim cited the dates and place of Castaneda's State custody and generally stated the ‘circumstances of the Department's response to Castaneda’s alleged immediate medical need.  Castaneda's complaint was predicated on the same fundamental acts of the same defendant, namely the Department of Corrections, as his claim.  Therefore, Castaneda notified the Board of his failure-to-summon-medical-care cause of action as he was required to do by sections 910 and 945.4.

(Id. at p.1062 [cleaned up].)   The Court of Appeal ultimately held that the variance between the government claim and complaint initiated by the plaintiff was not fatally defective. 

a.      PLAINTIFF’S GOVERNMENT CLAIM

            Plaintiff alleges, in relevant part, in the subject Government Claim as follows:

1.      On March 29, 2021, at approximately 4:30 p.m., Claimant was was (sic) traveling southbound on Norwalk Boulevard, at or near Spry Street, in the city of Norwalk, County of Los Angeles, California. At the same time, an on duty Los Angeles County Sheriff's Department employee, Salvador Martinez, was driving a Los Angeles County Sheriff's Department vehicle while traveling northbound on Norwalk Boulevard, in the left turn lane, when Deputy Martinez negligently, carelessly, and/or recklessly entered the intersection and/or started to turn left and/or otherwise failed to place/position/drive/operate/slow his vehicle to avoid colliding with Claimant's vehicle, thereby causing a three-vehicle collision, resulting in severe injuries and damages to Claimant. The third vehicle Involved in the collision was driven by Richard Jessie James, and was traveling southbound on Norwalk Bouelvard (sic), directly behind Claimant.

2.      Due to, including but not limited to, the negligence, including negligent training and supervision, of the City of Norwalk and its employees for failing to properly and/or reasonably inspect, maintain, repair, operate, and/or control the subject roadway and vehicle, the acts and/or omission of which caused Claimant's injuries.

(See Notice of Errata re: Request for Judicial (Notice), Exhibit A, emphasis added.)

b.      PLAINTIFF’S COMPLAINT

            In his complaint, Plaintiff alleges in pertinent part as follows:

A.    On or about March 29, 2021, Plaintiff, WILLIAM KANOONI EKHTIAR, was traveling southbound on Norwalk Boulevard, at or near Spry Street, in the city of Norwalk, County of Los Angeles, California.  At the same time, Defendants, COUNTY OF LOS ANGELES; LOS ANGELES COUNTY SHERIFF'S DEPARTMENT; CITY OF NORWALK; SALVADOR MARTINEZ; RICHARD JESSIE JAMES; AND DOES 1 TO 50, inclusive and each of them, negligently, carelessly, and recklessly failed to operate/control/drive/slow/stop/ place/position/turn his/their respective vehicles in order to avoid colliding with Plaintiff's vehicle, thereby causing his/their respective vehicles to collide with Plaintiff's vehicle.

B.     Further, said Defendants' acts and/or failures to act created and/or allowed to remain a dangerous condition on public property, which they failed to protect against.

C.     Defendants, COUNTY OF LOS ANGELES; LOS ANGELES COUNTY SHERIFF'S DEPARTMENT; CITY OF NORWALK; SALVADOR MARTINEZ; RICHARD JESSIE JAMES; AND DOES 1-100, inclusive, and each of them, so carelessly and negligently owned, operated, entrusted, leased, repaired, modified, maintained, and/or controlled their respective vehicles, which are the subject of this incident, so as to cause it to collide with the Plaintiff’s vehicle, causing severe injuries and damages to Plaintiff.

D.    Further, Defendants, COUNTY OF LOS ANGELES; LOS ANGELES COUNTY SHERIFF'S DEPARTMENT; CITY OF NORWALK; SALVADOR MARTINEZ; RICHARD JESSIE JAMES; AND DOES 1-50, inclusive, and each of them, were negligently hired, trained, supervised, retained, and/or contracted with/by Defendants, COUNTY OF LOS ANGELES; LOS ANGELES COUNTY SHERIFF'S DEPARTMENT; CITY OF NORWALK; SALVADOR MARTINEZ; RICHARD JESSIE JAMES; AND DOES 51-100, inclusive, and each of them, thereby causing injuries and damages to Plaintiff. 

E.     Moreover, Defendants, COUNTY OF LOS ANGELES; LOS ANGELES COUNTY SHERIFF'S DEPARTMENT; CITY OF NORWALK; SALVADOR MARTINEZ; RICHARD JESSIE JAMES; AND DOES 1-50, inclusive, and each of them, were in the course and scope of said employment and/or agency with Defendants, COUNTY OF LOS ANGELES; LOS ANGELES COUNTY SHERIFF'S DEPARTMENT; CITY OF NORWALK; SALVADOR MARTINEZ; RICHARD JESSIE JAMES; AND DOES 51-100, inclusive, and each of them, at the time of the subject incident, which resulted in injuries and damages to Plaintiff. 

(See Complaint, p. 4, emphasis added.)  Plaintiff asserts similar allegations against City in relation to the Second Cause of Action, Motor Vehicle.  (See Complaint, p. 5.) 

a.      APPLICATION OF GCA PRESENTATION REQUIREMENTS TO PLAINTIFF’S GOVERNMENT CLAIM AND COMPLAINT

            City argues that Plaintiff failed to comply with the presentations requirement of the GCA because the variances between the assertions in the subject Government Claim and the ensuing complaint are too vast.  As such, City contends that the Court is without jurisdiction to adjudicate Plaintiff’s causes of action vis-à-vis City.  The Court agrees.

            Here, the Court finds that the variances between Plaintiff’s Government Claim and complaint stem largely from Plaintiff’s assertions in the Government Claim that (1) Salvador Martinez was an employee of the Los Angeles County Sheriff’s Department (“LASD”) and (2) Salvador Martinez who was on duty as a Deputy Sheriff, was operating a LASD vehicle.  Plaintiff does not assert in the Government Claim that Salvador Martinez was an employee of City or Salvador Martinez was operating a City owned vehicle.  Moreover, Plaintiff alleges in the Government Claim that Salvador Martinez “negligently, carelessly, and/or recklessly entered the intersection and/or started to turn left and/or otherwise failed to place/position/drive/operate/slow his vehicle to avoid colliding with Claimant's vehicle.”  Plaintiff does not allege that a City employee operated a City vehicle in a negligent manner, causing the three-vehicle collision. 

            Further, Plaintiff fails to assert in the Government Claim the purported connection if any between Salvador Martinez, LASD and City.  Plaintiff makes no reference to City being an agent or employee of LASD, or whether a contract or agreement exists between City and LASD.  In fact, from the Government Claim, it is unclear whether Salvador Martinez was simply travelling through the City of Norwalk while purportedly on duty with LASD, or was performing duties on behalf of or related to City. 

             In addition, Plaintiff does not assert in his Government Claim that City created a dangerous condition of its property.  In particular, Plaintiff does not contend in the Government Claim that the intersection (Norwalk Boulevard and Spry Street) where the three-vehicle collision occurred was faulty in any manner.  Plaintiff merely claims that Salvador Martinez, a LASD employee using a LASD vehicle, entered the intersection in a careless manner causing the subject collision. 

            Plaintiff’s contention that his Government Claim complies with the GCA presentation requirements because he asserts:  “Due to, including but not limited to, the negligence, including negligent training and supervision, of the City of Norwalk and its employees for failing to properly and/or reasonably inspect, maintain, repair, operate, and/or control the subject roadway and vehicle, the acts and/or omission of which caused Claimant's injuries” is unavailing. 

            Foremost, Plaintiff’s assertion would not have put City on notice to investigate Plaintiff’s Government  Claim because as noted above, Plaintiff alleged that a LASD employee, while operating a LASD vehicle, caused the subject three-vehicle collision by proceeding through an intersection in a haphazard fashion.  Plaintiff’s own assertions do not alert City that one of its employees or vehicles was involved in the subject collision.  Plaintiff’s assertion in the Government Claim concerning City does not cure the material disparities between Plaintiff’s complaint and the Government Claim.   

            In assessing the Government Claim and the complaint, the Court finds that there is a complete shift in the allegations and the premise upon which Plaintiff seeks to hold City liable.  In essence, Plaintiff is seeking to hold City liable on acts or omissions committed at different times or by different persons other than those described in the subject Government Claim, Salvador Martinez and LASD.  The factual basis for recovery in the Complaint is not fairly reflected in the Government Claim.  As such, Plaintiff did not afford City the opportunity to investigate and evaluate its potential liability when Plaintiff alleges in the Government Claim that a LASD employee and vehicle was involved in the three-vehicle collision. 

            In short, there is a wide disconnect between the amorphous allegations against City in the Government Claim and the allegations against City in the Complaint – Plaintiff is not simply through the Complaint elaborating or adding further detail to the allegations in the Government Claim.  Plaintiff has done the opposite – he seeks to enlarge City’s culpability by going beyond what he asserted in the subject Government Claim.  Accordingly, Plaintiff has not complied with the GCA presentations requirements, Government Code section 910, regarding City.

b.      SUBSTANTIAL COMPLIANCE – GOVERNMENT CLAIM

            “[F]ailure to allege facts demonstrating or excusing compliance with the claim presentation requirements subjects a claim against a public entity to a demurrer for failure to state a cause of action.”  (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)  “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].)  

            Despite the variances between the Government Claim and complaint which establish that Plaintiff has not complied with the GCA, Plaintiff argues that he has substantial complied with the presentation requirements.  But Plaintiff’s contention is unsound.  

            In Turner v. State of California, the trial court in part granted summary judgment for the State of California (“State”) because the plaintiff did not allege in his government claim that his injuries stemmed from inadequate lighting on property controlled by the State.  The Court of Appeal affirmed the trial court’s ruling and noted what the plaintiff did and did not allege in his government claim:

The factual circumstances described in the claim here alleged failure to warn of or take adequate precautions against anticipated gang-related  violence and reckless conduct of security officers in firing the shot which hit plaintiff. This description also alleged violation of plaintiff's Fourth and Fourteenth Amendments rights, violation of California Civil Code Section 51, et seq., inflictions of emotional distress, “dangerous conditions of property,” negligence, and assault and battery.  Nowhere is there any mention of inadequate lighting as a basis for the dangerous condition of property or the negligent conduct of the State or Barkett.

(Turner v. State of California (1991) 232 Cal.App.3d 883, 888–889, emphasis added (hereafter Turner).)   Further, the appellate court rejected the plaintiff’s contention that “the general charge in his claim of “dangerous conditions of property” is broad enough to include an allegation of inadequate lighting and is therefore substantial compliance with the tort claim requirement.”  (Id. at p. 890.)  The Court of Appeal reasoned: 

Here, the allegations plaintiff seeks to introduce are completely different from those contained in the claim. Read in its entirety, the dangerous condition alleged in the claim is known criminal activity, not inadequate lighting. The new allegations constitute a complete shift in theory from what the defendants are alleged to have done to cause plaintiff's injuries.

[A]ny contention of substantial compliance is unavailing where the plaintiff seeks to impose upon the defendant public entity the obligation to defend a lawsuit based upon a set of facts entirely different from those first noticed.  Such an obvious subversion of the purposes of the claims act, which is intended to give the governmental agency an opportunity to investigate and evaluate its potential liability, is unsupportable.  The claim here alleged one factual scenario, i.e., the presence of criminal activity; plaintiff is attempting to introduce another, i.e., inadequate lighting.  The trial court was therefore correct in refusing to consider inadequate lighting evidence to defeat summary judgment.

(Turner, supra, 232 Cal.App.3d at pp. 890–891 [cleaned up].)  Stated differently, a plaintiff cannot rely upon the principle of substantial compliance where a plaintiff fails to comply with the presentation requirements in the first instance. 

            Here, the same must be said of Plaintiff’s attempt to expand through his civil action what was alleged in the subject Government Claim.  As noted above, the variances between the Government Claim and complaint are too vast for the Court to determine that Plaintiff complied with the GCA presentation requirements.  As such, Plaintiff cannot rely upon the principle of substantial compliance when he has not complied with the GCA in the first instance concerning City. 

2. LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the 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.) A 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, the burden is on Plaintiff to establish that the complaint can be amended successfully. Plaintiff makes a request for leave to amends should City’s demurrer be sustained.  But Plaintiff failed to establish with specificity in what manner the complaint could be amended to show compliance with the GCA presentation requirements.  Plaintiff’s statement -- “In the unlikely event that the Court believes that plaintiff has failed to adequately allege sufficient facts and demonstrating a claim to relief against the defendant, plaintiff respectfully requests leave to amend the complaint” -- is insufficient to meet his burden.  (See Plaintiff’s Opposition to Demurrer, p. 9.)

CONCLUSION AND ORDER 

            For the reasons stated above, the Court finds that Plaintiff has not complied with the GCA and accordingly, the Court is without jurisdiction to adjudicate the First and Second Causes of Action – General Negligence and Motor Vehicle against City. [3]  Consequently, the Court sustains City’s demurrer to the entire complaint without leave to amend. 

City shall provide notice of the Court’s ruling and file a proof of service regarding the same.