Judge: Ronald F. Frank, Case: 24TRCV00023, Date: 2024-05-21 Tentative Ruling
Case Number: 24TRCV00023 Hearing Date: May 21, 2024 Dept: 8
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HEARING DATE: May 21, 2024¿¿
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CASE NUMBER: 24TRCV00023
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CASE NAME: Xiomara Munoz Silvestre v. Los Angeles
World Airports, et al.
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MOVING PARTY: Defendants, City of Los Angeles and Los
Angeles World Airports
RESPONDING PARTY: Plaintiff, Xiomara Munoz Silvestre (Late-Filed
Opposition)
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TRIAL DATE: None
Set.
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MOTION:¿ (1) Demurrer¿
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Tentative Rulings: (1) SUSTAINED.
I. BACKGROUND¿¿
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A. Factual¿¿
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On January 3,
2024, Plaintiff, Xiomara Munoz Silvestre (“Plaintiff”) filed a Complaint
against Defendant, Los Angeles World Airports, and DOES 1 through 50. The
Complaint alleges causes of action for: (1) Premises Liability; and (2) General
Negligence.
Now,
Defendants, City of Los Angeles and Los Angeles World Airports (collectively
“LAWA”) now file a demurrer.
B. Procedural¿¿
On April 18, 2024, LAWA Defendants
filed this demurrer to the Complaint. On May 17, 2024, Plaintiff filed an
untimely opposition brief. To date, no reply brief has been filed.
II. REQUEST FOR JUDICIAL NOTICE
Along with the
LAWA Defendants demurrer, they filed a Request for Judicial Notice of the
following documents:
1.
Exhibit B – June 17, 2022 Claim for Damages from
Plaintiff’s counsel to the City of Los Angeles City Clerk’s Office.
2.
Exhibit C – July 15, 2022 Letter from the Office
of the City Attorney to Plaintiff’s counsel.
3.
Exhibit D – August 17, 2022 or August 24, 2022
Claim for Damages from Plaintiff’s counsel to the Board of Airport
Commissioners.
4.
Exhibit E – October 8, 2022 Los Angeles World
Airports denial letter.
5.
Exhibit F – USPS tracking information for the
denial letter
The Court GRANTS
the request for judicial notice of Exhibits A through D, and will discuss
whether judicial notice can be granted as to Exhibits E and F. Exhibits E and F tend to show that the
October 8, 2022 denial letter was received by certified mail and by email at
the offices of Plaintiff’s counsel, but those are asserted facts outside the
four corners of the Complaint and its attachments and those asserted facts are
disputed by Mr. Aguirre’s Opposition Declaration.
III. ANALYSIS¿
A.
Legal
Standard
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.) “To survive a
demurrer, the complaint need only allege facts sufficient to state a cause of
action; each evidentiary fact that might eventually form part of the
plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High
School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the
sufficiency of the cause of action, the demurrer admits the truth of all
material facts properly pleaded. (Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions,
deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co.
(1967) 67 Cal.2d 695, 713.)¿¿¿
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A
pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., §
430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label
the parties and claims renders the complaint so confusing defendant cannot tell
what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition
Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for
uncertainty is strictly construed, even where a complaint is in some respects
uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th
612, 616.)¿¿
B.
Discussion
Prior to
filing a suit against a public entity, a plaintiff must comply with the
Government Tort Claims Act, which states, in part: “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 . . . 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 . . .” (Gov. Code, §
945.4) A claim for death or injury to person or personal property shall
be presented not later than six months after the accrual of the cause of
action. (Gov. Code, § 911.2, subd. (a).) A claim has been presented to the public entity
when the public entity receives a letter, claim form, or other document containing
the information required by section 910 and is signed by the claimant. (Simms v. Bear Valley Community Healthcare
District (2022) 80 Cal.App.5th 391, 400.)
“A claim need not contain the detail and specificity required of a
pleading,” but need only give a fair description of what the government entity is
alleged to have done. (Stockett v.
Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34
Cal.4th 441, 446.) The claim need not
specify each particular act or omission later proven to have caused the injury;
the lawsuit’s s fuller exposition of the factual basis for the alleged
municipal liability is not fatal, so long as the complaint is not based on a new
and different set of facts. (Id. at p.
447.)
The board
shall grant or deny the application within 45 days after it is presented to the
board; but if the board
fails or refuses to act on an application within the time prescribed then the
application shall be deemed to have been denied on the 45th day after it was
presented. (Government Code § 912.4,
subd. (a); Simms, supra, 80 Cal.App.5th at p. 406.) The deemed denial period can be extended by written agreement if the claimant and the board agree to
prolong the 45-day period. (Gov. Code, § 911.6.) If the claim is
denied or deemed denied by operation of law, a suit against the public entity
must be commenced: (1) within six months after the date of written notice of
denial that was personally delivered or deposited in the mail, or (2) within
two years from the accrual of the cause of action if written notice of denial
is not given. (Gov. Code, § 945.6, subd. (a).)
Written notice of the board’s action shall be given and if the
application is denied, the notice shall include a warning in substantially the
following form:
Subject to certain exceptions, you have
only six (6) months from the date this notice was personally delivered or
deposited in the mail to file a court action on this claim. See Government Code
Section 945.6.
You may seek the advice of an attorney of
your choice in connection with this matter. If you desire to consult an
attorney, you should do so immediately.
(Gov. Code, §
913, subd. (b).)
According to the moving papers, Plaintiff filed a Claim for Damages with
the Airport Commissioners on August 17, 2022 or August 24, 2022. It alleged that plaintiff was injured in an
incident at LAX on December 20, 2021. LAWA
asserts that the Claim was deemed to be denied by operation of law by October
8, 2022, 45 days after the later of the potential dates for triggering
Plaintiff’s satisfaction of the claim presentation requirement. This action was filed on January 3, 2024, almost
a year and two months after the deemed denial date and more than two years
after the date of the subject incident when the cause of action was alleged to
have accrued. As such, LAWA contends that Plaintiffs have
failed to file their claim within the six (6) months’ times allotted for
Plaintiffs to file their complaint in court. Although not argued by LAWA, the
Complaint also appears to be untimely under the extended two-year period
provided by section 945.6, subdivision (a)(2).
The irony is not lost on the Court that Plaintiff filed an untimely
opposition brief after 5 pm on May 17, 2024, the Friday before this Tuesday May
21 hearing. In the late-filed
Opposition -- which the Court will consider on the merits -- Plaintiff
maintains that although Defendant’s denial was dated on October 8, 2022,
counsel for Plaintiff asserts that their office did not receive a copy until
Rosalind Spears-Nash provided them with one via electronic mail on September
27, 2023. As such, Plaintiff argues that the LAWA Defendants’ Demurrer should
be overruled based upon Code of Civil Procedure section 473(b). Included in the tardy opposition papers is a
declaration filed by Patrick Aguirre, counsel for Plaintiff indicating that the
failure to file was due to his office not receiving the letter dated on October
8, 2022. However, the declaration does not indicate that this was due to
mistake, inadvertence, or neglect. The
declaration states that counsel Aguirre was immobile for 5 months because of a
back injury that hindered his ability to perform his regular duties. The declaration fails, in the Court’s view,
to justify Section 473(b) relief. The
declaration does not state what efforts were taken to monitor looming
limitations periods in his law offices, whether his paralegal or others advised
counsel Aguirre during his period of immobility of looming deadlines or court
appearances, or whether Mr. Aguirre hired temporary or permanent associates to
assist him during a period of incapacitation, whether he was unable to monitor
and respond to emails during that period, or even whether his immobility
precluded him from litigating and addressing (through remote appearances or
otherwise) his pending cases. The Declaration also fails to address the fact
that the Government Code Claim was deemed denied by operation of law, whether
his firm’s calendar management system had any entries for the date of deemed
denial, or why the suit was not filed within the two-year extended filing
period when the public agency fails to act on a Government Code claim or when
the denial letter is not mailed or personal delivered within 45 days of
presentation.
IV.
CONCLUSION¿¿
For the foregoing reasons, LAWA Defendants’ demurrer is SUSTAINED.
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Defendants are ordered to give notice.