Judge: Stephen I. Goorvitch, Case: 23STCP03238, Date: 2024-06-07 Tentative Ruling

Case Number: 23STCP03238    Hearing Date: June 7, 2024    Dept: 82

Angie Kiroloss v. Torrance Housing Assistance Community Development Department, et al.

Case Number 23STCP03238

            NOTICE: The court posts this tentative order on June 5, 2024, in advance of the hearing on June 7, 2024, at 9:30 a.m.  The court provides notice: If Petitioner does not appear at the hearing, either remotely or in-person, she shall waive the right to be heard and the court will adopt this tentative order dismissing this case with prejudice. 

[Tentative] Order Sustaining Demurrer and Dismissing Case with Prejudice

            Petitioner Angie Kiroloss (“Petitioner”) filed this action against the Torrance Housing Assistance Community Development Department (“Respondent”) and the U.S. Department of Housing and Urban Development (“HUD”).  In the second amended petition, Petitioner challenges the decision on June 5, 2023, to terminate her housing benefits.  Now, Respondent demurs to the second amended petition, arguing: (1) The petition is untimely; (2) The petition is moot; and (3) The petition is uncertain. 

 A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc. § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.”  (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.”  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  The allegations in the petition must be liberally construed in favor of Petitioner on demurrer.  (See Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.)  “A demurrer must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

Respondent contends that Petitioner’s petition for writ of administrative mandate is time barred by the 90-day statute of limitations in Code of Civil Procedure section 1094.6.  Although the decision is dated June 5, 2024, the statute of limitations starts to run on the date the decision is mailed.  (Code Civ. Proc. § 1094.6(b).)  Respondent asks this court to take judicial notice of Petitioner’s “answer” to the demurrer (which the court construes as an “opposition” to the demurrer).  The court grants that request for judicial notice.  Petitioner included a copy of the envelope which contained the final decision, and Petitioner states under penalty of perjury that the postmark was Tuesday, June 6, 2023.  Accordingly, Petitioner was required to file this petition on or before Monday, September 4, 2023.  Petitioner filed this action on Wednesday September 6, 2023, meaning that this action is untimely.   

Based upon the foregoing, the court orders as follows:

1.         The court sustains Respondent’s demurrer.

2.         The court denies leave to amend, as no amendment would remedy this defect.

3.         The court dismisses this petition with prejudice. 

4.         Respondent’s counsel shall lodge a proposed judgment.

5.         Respondent’s counsel shall provide notice and file proof of service with the court.