Judge: Stephen I. Goorvitch, Case: 21STCV23531, Date: 2023-08-29 Tentative Ruling

Case Number: 21STCV23531    Hearing Date: August 29, 2023    Dept: 39

Norma Angelle Hicks v. State of California

Case No. 21STCV23531

Motion for Leave to Amend

Plaintiff Norma Angelle Hicks (“Plaintiff”) filed this action against the Department of Social Services of the State of California (the “DSS” or the “State”) and various individuals, alleging that the State unjustly closed her in-home daycare business.  The Court sustained the State’s demurrer without leave to amend.  The Court ruled as follows:

“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.”

(See Court’s Minute Order, dated March 20, 2023, p. 2.)  Now, Plaintiff seeks to file a second amended complaint against individual employees of the DSS based upon them having closed Plaintiff’s in-home daycare business.  This is clear from the proposed second amended complaint:

“Plaintiff has pursued justice for the damages sustained by the misconduct of certain individual defendants who have misused the power and authority reposed in them by virtue of their employment by the California Department of Social Services.  The Court granted the demurrer of the department, but the order entered appears to leave room for the Plaintiff to proceed against the individual defendants who were then and upon information and belief, are still employed by DSS.”

(Complaint, p. 3.)  Plaintiff is mistaken.  Plaintiff must comply with the above-referenced requirements when she sues a government employee in his or her official capacity.  (See, e.g., Bettencourt v. State of California (1956) 139 Cal.App.2d 255, 257-258.)  The second amended complaint makes clear that Plaintiff has no basis to sue these individuals in their personal capacity.  Plaintiff’s counsel did not identify any basis to do so in his brief or at the hearing.  Nor did Plaintiff’s counsel articulate a basis to allege that his client complied with the claims presentation requirement or the exhaustion requirement.  Therefore, this action is defective on its face. 

Based  upon the foregoing, the Court orders as follows:

            1.         The Court denies Plaintiff’s motion for leave to amend.

            2.         Pursuant to the written Order to Show Cause issued on July 24, 2023, the Court dismisses all remaining defendants without prejudice for failing to identify and serve them within two years, per Code of Civil Procedure section 583.420(a)(1).

            3.         This case is dismissed without prejudice.

            4.         The Court’s clerk shall serve a copy of this order upon Plaintiff’s counsel.  Further notice is not required.