Judge Michael E. Whitaker, Case Number: 23SMCV02239, Date: 2024-03-12 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV02239, Date: 2024-03-12 Tentative Ruling

Plaintiff Arezou Mary Alipourfereshteh (“Plaintiff”) filed the instant personal injury lawsuit against Defendant City of Santa Monica (“Defendant”) on May 23, 2023, but did not serve Defendant until December 26, 2023. On January 23, 2024, Defendant filed a declaration in support of an automatic extension.

Defendant demurs to Plaintiff’s complaint. Plaintiff has not filed an opposition.

“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 testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.” (See 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.)

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

Defendant demurs to Plaintiff’s complaint on the grounds that (1) it is impermissibly vague pursuant to Code of Civil Procedure section 430.10, subdivision (f); and (2) it fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e) because Plaintiff has not complied with the presentation requirements of the Government Claims Act.

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

Here, the Complaint states “Plaintiff Arezou Mary Airpourfereshteh alleges causes of action against defendant City of Santa Monica” (Complaint ¶ 1) and “Plaintiff has suffered other damage (specify): physically limited from slip and fall public street sidewalk, therapy, injections, pain + suffering” (Complaint ¶ 11).

Thus, while the Complaint alleges Plaintiff suffered injuries from a slip and fall, it is unclear where and when the alleged incident occurred, or even whether it occurred on a public street, a public sidewalk, or both. It is further unclear what the alleged defect to the “public street sidewalk” is.

As such, Defendant cannot reasonably determine what issues must be admitted or denied. Therefore, the Court grants Defendant’s demurrer on the basis of uncertainty.

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 [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 [cleaned up].)

“[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].)

Further, under Government Code section 945.6, “any suit brought against a public entity on a cause of action for which a claim is required to be presented…must be commenced…[i]f written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.” (Gov. Code., § 945.6, subd. (a)(1).)

Here, although Plaintiff alleges a personal injury against a government entity, Plaintiff has not checked the boxes in paragraph nine of the form complaint, indicating that Plaintiff either complied with the applicable claims statute or is excused from complying.

Therefore, Plaintiff has failed to allege compliance with or excuse from complying with the claims statute, as is required to withstand demurrer.[1]

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, Plaintiff has failed to meet her burden as Plaintiff did not oppose the demurrer, and therefore does not address whether leave should be granted if the demurrer is sustained.

For the reasons stated, the Court sustains Defendant’s Demurrer to Plaintiff’s Complaint without leave to amend.

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

[1] Defendants also argue that Plaintiff indicated in the meet and confer conversation that the alleged incident occurred in December of 2022, and Defendant indicates Plaintiff never presented a claim to Defendant prior to filing suit, and that Plaintiff’s claim is therefore now time barred. The Court declines to consider this extrinsic evidence on a demurrer.

DEPARTMENT	207
HEARING DATE	March 12, 2024
CASE NUMBER	23SMV02239
MOTION	Demurrer
MOVING PARTY	Defendant City of Santa Monica
OPPOSING PARTY	none