Judge Serena R. Murillo, Case 21STCV05456 2023-01-31 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV05456, Date: 2023-01-31 Tentative Ruling

Case Number: 21STCV05456 Hearing Date: January 31, 2023 Dept: 29

TENTATIVE

Defendant City of Vernon’s demurrer to the complaint is SUSTAINED in part and OVERRULED in part. The demurrer is sustained with 30 days leave to amend as to the first cause of action for negligence, and as to the count for negligence under the second cause of action for “premises liability.” The demurrer is overruled as to the remainder of the complaint.

Meet and Confer

The demurrer is accompanied by the declaration of Mark J. Austin which satisfies the meet and confer requirements. (Code Civ. Proc. § 430.41.)

Request for Judicial Notice

Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.) “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.)

Thus, while the Court takes judicial notice of the existence of this document, the Court does not take judicial notice of the truth of the statements contained in this document.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Discussion

I. Claim Filing Requirements

Defendant City argues that the complaint fails to state a cause of action because Plaintiffs failed to comply with claim filing requirements.

Any party with a claim against a public entity must first present the claim for damages to the entity; only if the governmental claim is denied or rejected may the claimant then institute civil litigation. (Government Code § 945.4.)

Government Code § 911.2 requires that a claim for personal injury be presented not later than six months after the accrual of the cause of action. (Government Code § 911.2.)

If a plaintiff fails to timely present a claim, the statutory scheme provides that an application to file a late claim must be filed within one year of the date of injury. (Government Code § 911.4(b).)

However, the complaint alleges that Plaintiffs have complied with the applicable claims statutes. (Complaint ¶ 9.)

Defendant requests that the Court take judicial notice of public records that it has not received, and there is no public record of the City ever receiving, a claim from either Plaintiff Castellanos or Plaintiff Holloman. However, the Court has only granted judicial notice of the existence of this document, and not to the truth of the statements contained in this document. Defendant cites to the proposition that “if a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.” (Gong v. City of Rosemead (2014) 226 Cal.App.4^th 363, 376 (citing Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752; California Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 2014) § 5.17, p. 181 (rev. 2/13)).)

Nevertheless, even if the Court were to take judicial notice of the truth of the statements in the document at issue, the City only argues that it has not received, and there is no public record of the City ever receiving a claim, from either Plaintiff. However, Government Code section 915, subdivision (a) requires that a “claim . . . to the public entity . . . shall be presented to a local public entity by any of the following means: [¶] (1) Delivering it to the clerk, secretary, or auditor thereof. [¶] (2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office.” If the claim is presented by mail, “the claim . . . shall be mailed in the manner prescribed in this section. The claim, amendment, application, or notice shall be deposited in the United States post office, a mailbox, . . . or other similar facility regularly maintained by the government of the United States, in a sealed envelope, properly addressed, with postage paid. The claim, amendment, application, or notice shall be deemed to have been presented and received at the time of the deposit.” (§ 915.2, subd. (a), italics added.)

“As Government Code section 915.2 clarifies, our focus is on the date of mailing, not the receipt” of the claim for damages. (Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 445.)

Because the claims statutes do not require actual receipt by a public entity of a mailed claim for damages, even if judicial notice were granted, the fact that the City does not have any public record of any claim from Plaintiffs does not render the allegations of compliance inadequate for purposes of a demurrer. The court “treat[s] the demurrer as admitting all material facts properly pleaded….” (Berkley, supra, 152 Cal.App.4th at 525).) The City may elect to file a motion for summary judgment to present evidence regarding this point at a later time instead.

As a result, the demurrer is overruled on this ground.

II. Statutory Basis for Liability against Public Entity

Defendant also demurs to the first cause of action for negligence and the first count for negligence under the second cause of action for premises liability, arguing that Plaintiffs failed to identify a proper statutory basis for liability.

Government Code § 815 provides, in pertinent part, that, 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.” (Government Code § 815(a).) (See Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 341 (“A public entity…is subject to direct liability only as provided by statute or required by the state or federal Constitution. [Citations]”).) (See also San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 427-428.) In order to properly assert a claim in tort against a California governmental entity, a plaintiff must demonstrate that a statute provides a basis for liability. (Williams v. Horvath (1976) 16 Cal.3d 834, 832-838 [“Government Code section 815 restores sovereign immunity in California except as provided in the Tort Claims Act or other statute. Thus the intent of the [A]ct is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability rigidly delineated circumstances: immunity is waived only if the various requirements of the [A]ct are satisfied”].)

The Court agrees with Defendant on this point. Plaintiffs fail to identify a statute which provides a basis for liability for their first cause of action for negligence and their count for negligence under the second cause of action for “premises liability.” As noted above, in order to assert a claim in tort against a public entity, such as Defendant, Plaintiffs must allege a statutory basis for liability. (Williams, supra, 16 Cal.3d at p. 832-838.) As Plaintiffs have failed to identify any statutory basis for liability, Defendant’s demurrer to the first cause of action for negligence and the count for negligence under the second cause of action for “premises liability” is sustained with 30 days leave to amend.

Conclusion

Based on the foregoing, Defendant City of Vernon’s demurrer to the complaint is SUSTAINED in part and OVERRULED in part. The demurrer is sustained with 30 days leave to amend as to the first cause of action for negligence, and as to the count for negligence under the second cause of action for “premises liability.” The demurrer is overruled as to the remainder of the complaint.