Judge: Michael E. Whitaker, Case: 23SMCV04658, Date: 2024-01-25 Tentative Ruling

Case Number: 23SMCV04658    Hearing Date: January 25, 2024    Dept: 207

TENTATIVE RULING

MOTION

Plaintiff Alyssa Rabiola (“Plaintiff”) brought suit, alleging causes of action for (1) negligence; and (2) premises liability, stemming from an incident where Plaintiff was injured when she fell, due to an open utility hole/vault in the sidewalk.

Defendant City of West Hollywood (“Defendant”) demurs to the second cause of action for premises liability alleged in Plaintiff Alyssa Rabiola’s complaint, for failure to state a cause of action pursuant to Code of Civil Procedure 430.10, subdivision (e) on the grounds that some of the allegations underlying Plaintiff’s second cause of action were not included in the claim for damages previously presented to Defendant, and therefore the second cause of action fails to comply with Government Code section 910.  

Defendant’s demurrer is unopposed. 

REQUEST FOR JUDICIAL NOTICE

            Defendant requests the Court to take judicial notice of (A) the file stamped copy of Plaintiff’s Claim for Damages filed with Defendant on April 6, 2023; and (B) Defendant’s Notice of Rejection of the Claim for Damages, dated June 9, 2023

            “The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.”  (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368 (citing Evid. Code, § 452, subd. (c)).)

            Therefore, the Court takes judicial notice of the file stamped copy of Plaintiff’s April 6, 2023 Claim for Damages and Defendant’s June 9, 2023 Notice of Rejection of the Claim for Damages, but not the truth of the assertions contained therein.

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 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.)

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 (2023) 90 Cal.App.5th 1222, 1230 (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, 90 Cal.App.5th at p. 1226.)  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, 90 Cal.App.5th at p. 1232.) 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.” (Ibid.)

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’s government claim alleges, in relevant part,

Claimant was walking on the east sidewalk on La Cienega, when her foot fell into an improperly secured utility hole/vault and sustained injuries.

[…]

City employees and/or its agents failed to maintain, inspect, and/or repair the utility hole/vault/cover and/or sidewalk, and as a result, a dangerous condition was present and was the cause of Claimant's injuries.

B.     PLAINTIFF’S COMPLAINT

Plaintiff’s second cause of action for premises liability alleges:

Plaintiff was walking on the east sidewalk on La Cienega & Holloway, West Hollywood, CA 90069, when she fell due to an improperly secured utility hole/vault, repaired, inspected and/or maintained by Defendants' agents in a negligent fashion. The negligence of Defendants' agents resulted in Plaintiff tripping on the uneven and displaced portion of the sidewalk and Plaintiff suffered serious injuries as a direct consequence. Defendants, and each of them, are responsible for their failure to provide a safe, suitable and adequate premises. Plaintiff is informed and believes and thereon alleges that said hazardous, dangerous condition was caused by Defendants, and each of them, and/or existed for a sufficient time prior to the incident for defendants to have corrected, removed, and/or warned Plaintiff of the existence of said conditions, which Defendants negligently and carelessly failed to do, causing serious injuries to Plaintiff. Defendants had actual and/or constructive notice of said dangerous condition. But for the negligence of Defendants, and each of them, Plaintiff would not have been injured and damaged.

(Complaint at Attachment 1, emphasis added.)

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

Defendant argues that Plaintiff failed to comply with the presentations requirement of the CGA because the allegations that Plaintiff “tripped on an uneven and displaced portion of the sidewalk” (Complaint at Attachment 1) and that Los Angeles Department of Water & Power (“LADWP”) and the City of Los Angeles “were the agents and employees of” Defendant (Complaint at Prem.L-5) exceed the scope of the allegations presented in the claim for damages.  The Court agrees.

Hernandez controls here.  Plaintiff’s government claim alleges Plaintiff’s foot fell into a hole in the sidewalk, but Plaintiff’s Complaint alleges in addition that Plaintiff tripped “on the uneven and displaced portion of the sidewalk[.]”  Therefore the allegations underlying Plaintiff’s claim fundamentally differ from the allegations set forth in Plaintiff’s government claim.    

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, Plaintiff has failed to meet this burden because Plaintiff did not present any arguments in opposition to the demurrer.

CONCLUSION AND ORDER

Therefore, the Court sustains Defendant’s unopposed Demurrer to the Second Cause of Action without leave to amend.

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

DATED:  January 25, 2024                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court