Judge: Stephen I. Goorvitch, Case: 21STCV23531, Date: 2023-03-20 Tentative Ruling
Case Number: 21STCV23531 Hearing Date: March 20, 2023 Dept: 39
Norma Angelle
Hicks v. State of California
Case No.
21STCV23531
Demurrer
BACKGROUND
Plaintiff Norma Angelle Hicks
(“Plaintiff”) filed this action against the Department of Social Services of
the State of California (“Defendant” or the “State”) and Maria Hendrix,
alleging that the State unjustly closed her in-home daycare business. Plaintiff asserts violations of Title 42,
United States Code, sections 1981, 1983, and 1985 against Defendant Maria
Hendrix. Plaintiff asserts her fourth,
fifth, and sixty causes of action against the State as follows: “Respondeat
Superior” and “Violation of RICO Statute” and “Violation of RICO
Conspiracy.” The State demurs to these
causes of action. The Court sustains the
demurrer.
LEGAL STANDARD
“It is black letter law that a
demurrer tests the legal sufficiency of the allegations in a complaint.”
(Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In
ruling on a demurrer, the court must “liberally construe[]” the allegations of
the complaint. (Code Civ. Proc., § 452.)
“This rule of liberal construction means that the reviewing court draws
inferences favorable to the plaintiff, not the defendant.” (Perez v.
Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)
EVIDENTIARY ISSUES
The State
asks the Court to take judicial notice of the following documents: (1) The
decision and order of an administrative law judge revoking Plaintiff’s license
to do business as “Hicks Family Child Care Center,” effective September 23,
2016; and (2) Claims documents concerning Plaintiff’s claim that the State
“fraudulently and conspiratorily [sic] revoked claimant’s day care license,”
which were received on April 21, 2021.
The Court grants the request, per Evidence Code sections 452(c) and
452(d) and Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376.
DISCUSSION
A. Fourth
Cause of Action
The Court
sustains the demurrer to the fourth cause of action for several independent
reasons. First, “Respondeat Superior” is
not available as a separate cause of action.
Second, Plaintiff did not comply with the claims presentation
requirements. Per the Government Claims Act, a party with a claim for damages against a
public entity must first file claim directly with that entity. The party
may file a lawsuit only if the public entity denies or rejects the claim. (Gov. Code §§ 905, 945.4; City of Ontario
v. Superior Court (1993) 12 Cal.App.4th 894.) The claims presentation requirement provides
the public entity with an opportunity to evaluate the claim and decide whether
to pay on the claim. (Roberts v. County of Los Angeles (2009) 175
Cal.App.4th 474.) Failure to allege facts demonstrating compliance with
the claims presentation requirement subjects the complaint to a general
demurrer. (State of Calif. v. Superior Court (2004) 32 Cal.4th 1234,
1239.) Plaintiff lost her license to
operate her daycare on September 23, 2016.
(See Request for Judicial Notice, Exhibit A.) Plaintiff alleges that she filed her claim on
April 2, 2021. (First Amended Complaint,
¶ 14.) Plaintiff was required to file
her claim within one year of accrual of the cause of action. (Gov. Code, §§ 911.4, 911.2, subd. (a).) Plaintiff alleges the accident at issue
occurred on May 4, 2017. Plaintiff thus
had until September 25, 2017 to file a claim.
Finally, Plaintiff does not allege that she exhausted her administrative
remedies by appealing the ALJ’s decision to revoke her business license. Plaintiff cannot proceed with the instant
causes of action unless she exhausted her administrative remedies. (See Johnson v. City of Loma Linda
(2000) 24 C4th 61, 69-76.) For these
reasons, the Court sustains the demurrer to the fourth cause of action.
B. Fifth and Sixth Causes of Action
The Court sustains the demurrer
with respect to the fifth and sixth causes of action because a governmental
entity cannot be held liable under the RICO statute. (See Lancaster
Community Hosp. v. Antelope Valley Hosp. Dist. 940 F.2d 397, 404 (9th Cir.
1991).) Plaintiff does not oppose the
demurrer on this basis. Therefore, it is
sustained with respect to the fifth and sixth causes of action.
CONCLUSION AND ORDER
Based upon
the foregoing, the Court orders as follows:
1. The Court sustains the State’s demurrer
to the fourth, fifth, and sixth causes of action.
2. The Court denies leave to amend, as
Plaintiff’s counsel articulates no basis upon which an amendment would be
successful.
3. The First Amended Complaint names Maria
Hendrix as a defendant. The Court orders
the clerk to add Maria Hendrix as a defendant in the Court’s electronic docket.
4. The Court advances and vacates the
final status conference and trial dates.
The Court sets an Order to Show Cause why all remaining defendants
should not be dismissed for lack of service and lack of prosecution under Code
of Civil Procedure sections 581 and 583 or, in the alternative, a case
management conference. The OSC hearing
and case management conference shall be held on July 24, 2023, at 8:30 a.m. at
the following location:
Stanley Mosk Courthouse
111 North Hill Street
Department #39 (Goorvitch, J.)
Los Angeles, California 90012
The Court authorizes the parties to appear remotely or in-person. The Court orders Plaintiff’s counsel to file
a status report concerning his efforts to serve Maria Hendrix (or the proof of
service) on or before July 17, 2023. The
Court provides notice that absent good cause, the Court intends to dismiss all
remaining defendants without prejudice for lack of service and lack of
prosecution. The Court provides notice
that if Plaintiff’s counsel does not appear, either remotely or in-person,
absent good cause, the Court will dismiss all remaining defendants without
prejudice.
5. Defendant’s counsel shall provide
notice and file proof of such with the Court.