Judge: Ralph C. Hofer, Case: 24NNCV04337, Date: 2024-12-20 Tentative Ruling

Case Number: 24NNCV04337    Hearing Date: December 20, 2024    Dept: D

Tentative ruling

Calendar:         15                                           

Date:                12/20/2024                                                                

Case No:          24 NNCV04337                                             Trial Date:       None Set

Case Name:     Armstrong v. The State of California, et al.  

DEMURRER

Moving Party:            Defendant State of California       

Responding Party:       Plaintiff Brian W. Armstrong     

Meet and Confer?      Yes

RELIEF REQUESTED:        

             Sustain demurrer to complaint

CAUSES OF ACTION:         from Complaint   

1)      Failure to Do Due Diligence

2)      Failure of Obligation to Act

3)      Failure to Protect Plaintiff

4)      Failure to Protect Public

5)      Failure to Communicate

6)      Negligence

SUMMARY OF FACTS:

            Plaintiff Brian W. Armstrong alleges that in September of 2022 plaintiff was assaulted inside the Blue Moon Lounge in Glendale by a large group of adult males which caused substantial and ongoing physical and emotional damage to plaintiff.  The complaint alleges that from September 19 through 26, 2022 Detective Ian Torley of the Glendale Police Department was negligent and failed to live up to his obligation to perform a detailed and thorough investigation into the brutal assault, failing to produce a detailed and concise investigative report, and failing to file a report with the Los Angeles District Attorney’s Office (D.A.) in a timely manner, and to follow up to notify and explain his actions and the D.A.’s decision to plaintiff.

The complaint alleges that the D.A.’s office rejected the assault case filed by Detective Torley within less than 24 hours, and that plaintiff was not notified of the decision until July of 2024, ten months after the decision was handed down.

Plaintiff alleges that assuming that Detective Torley filed a detailed report, then defendant D.A. Office was negligent in failing to file criminal charges against the business and all named defendants in plaintiff’s civil case, and is also responsible for neglecting to notify plaintiff and his attorney in a timely manner about the decision it made. 

It is also alleged that defendants the City of Glendale, County of Los Angeles, and State of California are responsible for failure and neglect to live up to their obligations to do due diligence to protect one of their citizens from a vicious assault and for failing to recommend prosecuting the assailants who committed this violent act within the City, County, and State limits.   

ANALYSIS:

Defendant State of California (State) demurs to the entire complaint on the ground the court has no jurisdiction over the State of California because plaintiff does not plead compliance with Government Code section 945.4 or any other provision of the Government Claims Act, and that the pleading fails to state a cause of action against the State and is uncertain.

Under Government Code sections section 905 and 945.5, no suit for money damages may be brought against a public entity until a written claim has been presented and been acted on or deemed to be rejected. 

Under Government Code 945.4:

            “Except as provided in Sections 946.4 and 946.6, 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 Chapter 1 (commencing with Section 900) and Chapter 2        (commencing with Section 910) of Part 3 of this division until a written claim therefor             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, in accordance with Chapters 1 and 2 of Part 3          of this division.”

            Under Dilts v Cantua Elementary School District (1987) 189 Cal.App.3d 27, “the plaintiff must allege compliance with or circumstances excusing compliance, or the complaint is subject to general demurrer.”

Defendant State argues that plaintiff’s claim here is required to be presented pursuant to a written claim, and that a search of the State’s Department of General Services has no record of a government claim submitted by plaintiff Armstrong.   [Request for Judicial Notice, Ex. 4, Ramos Decl.].  

This method of proceeding is supported by Fowler v. Howell (1996) 42 Cal.App.4^th 1746, in which the Second District affirmed the trial court’s granting of a motion for judgment on the pleadings in a malicious prosecution action brought by a public employee against a coworker who had accused the employee of sexual harassment and rude behavior.  The court found the action barred by the Tort Claims Act, as the employee had failed to file a claim under the Torts Claims Act.   There was no allegation in that action that the employee had in fact filed such a claim, the argument was that he was not required to do so.  The Second District noted that the trial court as well as the appellate court had in fact taken judicial notice of the records of the public entity, in that case, the State Board of Control:

“The trial court also took judicial notice that the records of the State Board of Control do not contain a claim filed by Fowler concerning Howell's allegedly false accusations. (A state employee familiar with the records of the Board of Control searched the records and so declared.) We likewise take judicial notice of these records. ( Evid. Code, § 452, subd. (c), 459.)”

Fowler, at 1752-1753.

Here, the complaint alleges:

“Payment in the amount of 10 million dollars ($10,000,000.00) total was Requested by Plaintiff to ALL Defendants in his "NOTICE OF INTENT TO SUE" letter which was legally served upon each of the Defendants on or about September 4, 2024 in an attempt to SETTLE THE ISSUE prior to any Civil Action taking place in a Court of Law, thus saving the City, County, State and Court untold amounts of time and money. (Proof of Service of Plaintiff's initial "NOTICE OF INTENT TO SUE" will be presented as a future exhibit.)”

[Complaint, p. 8].

            It is not clear that this letter constituted a government claim, or was timely, and it is not attached to the pleading to permit the parties and court to confirm that it complies with the Government Claims Act. The opposition does not address this argument. The demurrer accordingly is sustained with leave to amend to permit plaintiff to more clearly allege compliance with the Government Claims Act as to the moving defendant, and to attach as an exhibit to the complaint any alleged written claim.

            Defendant also argues that the complaint includes no facts showing the State had any role in the underlying incident at the Blue Moon Lounge, but alleges that the State should have performed “due diligence,” though the object of the State’s inquiry is unclear.   

            The language of the allegations against the State are as follows:

“The State of California is responsible for it's [sic] failure and neglect to live up to it's [sic] obligation to do due diligence to protect one of it's [sic] Citizens from a vicious assault and for failing to recommend prosecuting the assailants who committed this violent act within the limits of the State of California, inside an establishment licensed by the State to do business in a manner in which it's [sic] patrons 'shall not' be harmed in any manner in which the establishment has reasonable control over. The State of California failed to ensure the safety of the Plaintiff, a 66 year resident and tax payer of the State in this case.”

[Complaint, pp. 5-6, para. 5].

It is not clear what the basis is for plaintiff’s allegation that the State had an obligation to do due diligence, and, as pointed out in the demurrer, since the State is a public entity, any liability must be based on statute.

Government Code § 815 provides:

“Except as otherwise provided by statute:

(a) 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.”

            The pleading here does set forth Government Code section 815.2 (a), under which a public entity may be liable for an act or omission of an employee “if the act or omission would, apart from this section, have given rise to a cause of action against that employee…”  and section 815.6, under which liability may arise “Where a public entity is under a mandatory duty imposed by an enactment…”  [Complaint, pp. 11, 12].   However, it is not clear what conduct of a State employee would have given rise to what cause of action, or what mandatory duty imposed by enactment is relied upon.  The demurrer is sustained on this ground as well.

            Defendant points out that the complaint, although listing several, apparently separate causes of action in the caption, does not set out in the body of the pleading any specific causes of action and does not comply with the California Rules of Court with respect to identifying specifics, particularly against which of multiple defendants a claim is being made.

            CRC Rule 2.112 requires:

“Each separately stated cause of action, count or defense must specifically state:

(1) Its number (e.g. “first cause of action”);

(2) Its nature (e.g., “for fraud”);

(3) The party asserting it, if more than one party is represented in the pleading (e.g. “by plaintiff Jones’); and

(4) The party or parties to whom it is directed (e.g., “against defendant Smith”).

The complaint fails to comply with this rule, as a result of which it is difficult to ascertain what recognized cause of action is being alleged against each of the named defendants.  Plaintiff on amendment must fully comply with this rule.

            Defendant argues that the demurrer should be sustained without leave to amend.  However, this is the original complaint in this matter, and it is held that in the case of an original complaint, plaintiff need not even request leave to amend: “unless [an original complaint] shows on its face that it is incapable of amendment, denial of leave to amend constituted an abuse of discretion, irrespective of whether leave to amend is requested or not.”  King v. Mortimer (1948) 83 Cal.App.2d 153, 158, citations omitted.  The court of appeal in King cited to CCP section 472c, which provides, in pertinent part, “the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.”   

This complaint is plaintiff’s first attempt to state a claim, and it is not yet clear from the face of the complaint that it cannot be amended to state a cause of action against the moving defendant.  The demurrer is sustained with leave to amend.

RULING:

State of California’ Demurrer to the Complaint is SUSTAINED WITH LEAVE TO AMEND for the reasons stated in the moving papers.

Plaintiff has failed to sufficiently allege timely and appropriate compliance with the applicable claims statute, or that plaintiff is excused from such compliance.  Any amended pleading should attach as exhibits all documentation alleged to constitute writings complying with the claims statute.  The pleading also does not sufficiently allege a recognized duty on the part of moving defendant the State of California, or a statutory basis for the duty allegedly breached.  The pleading also fails to comply with CRC Rule 2.112, creating uncertainty, as each cause of action listed in the caption is not separately alleged, and it is not alleged the nature of each cause of action, and against which defendant each cause of action is alleged.  Plaintiff on amendment must fully comply with CRC Rule 2.112. 

Ten days leave to amend, if possible.

State of California’s UNOPPOSED Request for Judicial Notice Supporting Demurrer to Complaint is GRANTED. 

The parties are ordered to meet and confer in full compliance with CCP § 430.41 before any further demurrer may be filed.

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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