Judge: Michael Shultz, Case: 23CMCV00339, Date: 2024-01-09 Tentative Ruling
Case Number: 23CMCV00339 Hearing Date: March 5, 2024 Dept: A
23CMCV00339 Levivian Beatrice Valencia individually and as
Successor-in-Interest to Cuca Bry Anna Mona Perryman v. State of California,
et al.
[TENTATIVE] ORDER
This
action arises from the alleged wrongful death of Cuca Bry Anna Mona Perryman
(“Decedent”), who was struck by a vehicle driven by Lakila Marie Young.
Decedent’s mother, Levivian Beatrice Valencia (“Valencia”), alleges claims
against Defendants on her own behalf and as successor-in-interest to Decedent’s
estate.
On
January 9, 2024, the Court granted Plaintiff’s counsel’s motion to be relieved.
(M.O. 1/9/24.) The order became
effective on January 10, 2024, when counsel served the client with the order.
Defendant,
City of Los Angeles, (“City”) demurrers to the entire complaint on grounds Valencia
did not file a claim on her own behalf for damages arising from Valencia’s
death. The only claim filed was on behalf of decedent. The demurrer was timely
served on Plaintiff’s counsel who did not file an opposition.
The bases for demurrer are limited by
statute and may be sustained for reasons including failure to state facts
sufficient to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10.) A
demurrer “tests the sufficiency of a complaint as a matter of law and raises
only questions of law.” (Schmidt v. Foundation Health
(1995) 35 Cal.App.4th 1702, 1706.) The court must assume the truth of (1) the
properly pleaded factual allegations; (2) facts that can be reasonably inferred
from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) The court may not consider contentions, deductions,
or conclusions of fact or law. (Moore v. Conliffe
(1994) 7 Cal.4th 634, 638.)
Defense counsel attempted to meet and
confer in good faith with Plaintiff’s counsel, who did not respond. (Andrea S.
Maehara decl., ¶¶ 4-7.)
Plaintiff alleges that she filed a government
claim with the City on August 17, 2022. (Complaint, ¶ 7.) The court can take judicial notice of
Plaintiff’s claim form filed with the public entity pursuant to Evid Code §
452(c). (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518. [Judicial notice of official acts of a
state including records, orders and reports of its administrative agencies is
permitted.].) The government claim filed with the City identified only Perryman
as claimant. Valencia did not assert her own claims. (RJN .pdf 9:2-4.)
Compliance
with the provisions of the Government Tort Claims Act is mandatory. (Castaneda v. Department of Corrections
& Rehabilitation
(2013) 212 Cal.App.4th 1051, 1061.) One claimant cannot rely on another’s tort claim. (Castaneda at 1062 ["This rule applies where
different claimants are alleging survivor theories and wrongful death theories
of liability arising from the same transaction.”].)
Based
on the foregoing, the demurrer is SUSTAINED. Plaintiff has 10 days to file an
amended complaint. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303 [leave to amend is liberally granted
irrespective of whether the plaintiff requested it].)