Judge: Serena R. Murillo, Case: 22STCV12073, Date: 2023-04-13 Tentative Ruling

Case Number: 22STCV12073    Hearing Date: April 13, 2023    Dept: 29

TENTATIVE 

Defendant City of Los Angeles’ demurrer to the complaint is OVERRULED.

Meet and Confer 

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

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

Defendant City argues that the complaint fails to state a cause of action because Plaintiff 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 Plaintiff has timely served a government claim upon Defendant City.  (Complaint ¶ 9.) Only a general allegation of timely compliance is necessary.  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1237.)  Plaintiffs are not required to “to specifically plead . . . the method of service used to present the claim to the defendant,” only the ultimate fact of whether they complied with the applicable claims statutes.  (Esparza v. Kaweah Delta District Hospital (2016) 3 Cal.App.5th 547, 555.)  Thus, this allegation is sufficient.

Defendant argues Plaintiff failed to timely and properly serve their claim within 6 months as required by Government Code 911.2. Defendant argues that Decedent Soon Cho allegedly was hit by a car while in his wheelchair on March 9, 2020. A Government Claim was filed on behalf of the decedent Soon Cho on June 16, 2020, and Defendant attaches what it argues is Decedent’s Government Claim. Thereafter, Defendant argues, on September 7, 2020, Decedent Soon Cho died. After that, Plaintiff has not filed a Government Claim against the City of Los Angeles and Michael Milan.

However, these are extraneous matters outside of the pleadings. Defendant has not requested the Court take judicial notice of any documents. As such, the complaint is sufficient on its face and whether or not Plaintiff in fact timely and properly submitted a claim is a matter for proof at a later stage in the proceedings, such as a motion for summary judgment. 

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

Conclusion

Based on the foregoing, Defendant City of Los Angeles’ demurrer to the complaint is OVERRULED.

Moving party is ordered to give notice.