Judge: Michelle C. Kim, Case: 22STCV36586, Date: 2023-05-18 Tentative Ruling

Case Number: 22STCV36586    Hearing Date: May 18, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

On November 21, 2022, Plaintiff Mike B. Smith (“Plaintiff”) filed this action against Defendant Employment Development Department, State of California (“EDD” or “Defendant”) for emotional injuries arising from disqualification and termination of Plaintiff’s benefits. On January 12, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) against EDD for (1) willful and wanton conduct, (2) intentional infliction of emotional distress, and (3) personal injury – non economical damages.

Defendant EDD now demurs to the complaint arguing it fails to state a claim against it. Plaintiff opposes the motion, and EDD filed a reply. 

EDD contends that Plaintiff fails to state a cause of action against it as they fail to identify the statute that would support such liability against it as required by Government Code § 815(a).

In opposition, Plaintiff restates its allegations in the FAC.

In reply, Defendant argues that Plaintiff simply recites the allegations in the FAC without addressing any arguments made in the demurrer.   

2. Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, supra, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

a. Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).) 

The Court finds Defendant has fulfilled this requirement prior to filing its demurrer. (Brown Decl. ¶2.)

b. Analysis

Except as otherwise provided by statute, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”  (Gov. Code § 815(a).) “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457; Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 (emphasis in the original). It has been established that there is no liability for California governmental entities in the absence of an express statute or constitutional provision creating or accepting liability. (Tolan v. State of California (1979) 100 Cal.App.3rd 980, 986.) It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.)

Here, Plaintiff has not alleged a statutory basis for the claims against Defendant EDD, a public entity and does not provide any basis in opposition.

d. Leave to Amend

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)  

In this case, Plaintiff has not requested leave to amend the FAC or shown how the FAC can be successfully amended. 

Accordingly, the demurrer is SUSTAINED without leave to amend.

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 18^th day of May 2023