Judge: Steven A. Ellis, Case: 22STCV25887, Date: 2024-06-06 Tentative Ruling
Case Number: 22STCV25887 Hearing Date: June 6, 2024 Dept: 29
Demurrer filed
by Defendant County of Los Angeles.
Tentative
The Court would like to hear from counsel
regarding whether Cruz v. County of Los Angeles (1985) 173
Cal.App.3d 1131 is on point and, if so, what is the significance of the case.
The Court’s
tentative ruling is that the Demurrer is overruled.
Background
This case arises out of the death of Eternity Smith
(“Eternity”). According to the
allegations of the Complaint and First Amended Complaint (“FAC”), Eternity was
killed by her mother, Akira Smith, on August 11, 2020, after years of abuse.
The plaintiffs in this action are C.M., C.A, and I.S.,
all minors, all acting by and through their Guardian Ad Litem Pamela Hill
(collectively “Plaintiffs”). Plaintiffs
are Eternity’s siblings.
On August 10, 2022, Plaintiffs, individually and as
successors in interest to the Estate of Eternity Smith, filed the Complaint in
this action. On April 5, 2024,
Plaintiffs filed the FAC.
In the FAC, Plaintiffs assert causes of action for
wrongful death (negligence) and survival (negligence) pertaining to Eternity,
as well as their own cause of action for negligence, against County of Los
Angeles (“Defendant”) and Does 1 through 50.
Plaintiffs allege, among other things, that the Los Angeles County
Department of Children and Family Services (“DCFS”) failed to take appropriate
actions, that Eternity was injured and died as a result of these failures, and
that Plaintiffs themselves were also injured as a result of these failures.
On May 6, 2024, Defendant filed its Demurrer to
the FAC and a Request for Judicial Notice. Plaintiffs filed an Opposition to
the Demurrer and an Opposition to the Request for Judicial Notice on May 23. Defendant filed a Reply in support of the
Demurrer and a Reply in support of the Request for Judicial Notice on May 30.
Legal Standard
A party may object to a pleading by demurrer
on the ground that (among other things) the pleading “does not state facts
sufficient to constitute a cause of action,” the court lacks subject matter
jurisdiction, or the person who filed the pleading “does not have the legal
capacity to sue.” (Code Civ. Proc., §
430.10, subds. (a), (b), (e).)
A demurrer tests the legal sufficiency of the
complaint or other pleading. In ruling
on a demurrer, the Court accepts as true “all material facts properly pleaded,”
along with “matters that may be judicially noticed.” (Centinela Freeman Emergency
Medical Associates v. Health Net of California (2016) 1 Cal.5th 994, 1010; Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
The Court need not, however, accept the truth of contentions or
conclusions of law contained in the pleading.
(Centinela, supra, 1 Cal.5th at p. 1010; Blank, supra, 39
Cal.3d at p. 318.)
A demurrer may address only defects that appear on the face of
the pleading; other than judicially noticeable facts, no other extrinsic
evidence may be considered. (Blank,
supra, 39 Cal.3d at p. 318; Guardian North
Bay, Inc. v. Super. Ct. (2001) 94 Cal.App.4th 963, 971-972.)
It is not the function of the demurrer to challenge the
truthfulness of the properly pleaded allegations of the complaint. The Court accepts as true “even improbable
alleged facts” as a demurrer is not the correct procedural posture to address
“plaintiff’s ability to prove the factual allegations.” (Marina Pacific Hotel and Suites v.
Fireman’s Fund Insurance Company (2022) 81 Cal.App.5th 96, 104-105; accord Hacker
v. Homeward Residential (2018) 26 Cal.App.5th 270, 280.)
Courts must “liberally construe the pleading with a view to
substantial justice between the parties” and must “give the complaint a
reasonable interpretation, reading it as a whole and its parts in
context.” (Marina Pacific, supra, 81
Cal.App.5th at p. 105.)
A demurrer may be sustained only if it
disposes of an entire cause of action. (Poizner v. Fremont General Corp.
(2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev.
Agency (2003) 108 Cal.App.4th 1028, 1046.)
“When the ground of demurrer is based on a
matter of which the court may take judicial notice …, such matter shall be
specified in the demurrer, or in the supporting points and authorities for the
purpose of invoking such notice ….”
(Code Civ. Proc., § 430.70.)
Before filing a demurrer, the demurring party
must meet and confer with the opposing party to determine “whether an agreement
can be reached that would resolve the objections to be raised in the
demurrer.” (Code Civ. Proc., § 430.41,
subd. (a).)
Request for Judicial Notice
Defendant requests judicial notice of the
following eight documents under Evidence Code section 452, subdivision (h):
Exh. A. Plaintiff
C.M.’s claim for damages sent to Los Angeles County Board of Supervisors on February
5, 2021.
Exh. B. Notice
of Rejection of Claim sent to C.M.’s counsel on July 6, 2021.
Exh. C. Plaintiff
C.A.’s claim for damages sent to Los Angeles County Board of Supervisors on
February 5, 2021.
Exh. D. Notice
of Rejection of Claim sent to C.A.’s counsel on July 6, 2021.
Exh. E. Plaintiff
I.S.’s claim for damages sent to Los Angeles County Board of Supervisors on
February 5, 2021.
Exh. F. Notice
of Rejection of Claim sent to I.S.’s counsel on July 6, 2021.
Exh. G. Estate
of Eternity Smith’s claim for damages sent to Los Angeles County Board of
Supervisors on February 5, 2021.
Exh. H. Notice
of Rejection of Claim sent to Estate of Eternity Smith’s counsel on July 6,
2021.
Plaintiff objects to the request for judicial
notice. The Court discusses the judicial
notice in the Discussion section, below.
Discussion
The meet and confer requirement for this
Demurrer is satisfied. (Foster Decl., ¶ 4.)
Defendant demurs on two grounds: (1) that each
cause of action in the FAC is time-barred; and (2) that the Second Cause of
Action in the FAC “fails to state facts sufficient to constitute a survival
cause of action for Negligence” against Defendant. The Court considers each in turn.
Government Claims Act
Defendant argues first that each of the
causes of action in the FAC is barred by the statute of limitations contained
in the Government Claims Act. On
demurrer, the Court may consider whether one or more causes of action in a
complaint are time-barred. (Cavey v.
Tualla (2021) 69 Cal.App.5th 310, 325.)
The Government Claims Act establishes
detailed procedures and specific time limit for claims against public entities.
First, there is a claim presentment
requirement. (Gov. Code, §§ 905, 910,
910.2.) Subject to certain exceptions
not applicable here, “no suit for money or damages may be brought against a
public entity on a cause of action for which a claim is required to be
presented … until a written claim therefor has been presented to the public
entity and has been acted upon by the [entity], or has been deemed to have been
rejected.” (Gov. Code, § 945.4.) Any claim against a public entity for wrongful
death or personal injuries must be presented “not later than six months after
the accrual of the cause of action.”
(Gov. Code, § 911.2.)
Second, the public entity must then either grant
or deny the claim within 45 days after the claim has been presented. (Gov. Code, § 912.4, subd. (a).) If the entity does not grant the claim within
45 days, it is deemed to have been rejected.
(Gov. Code, § 912.4, subd. (c).)
Third, if the claim is rejected (whether by
affirmative action of the entity or by operation of law), the public entity is
required to send a written notice to the claimant. (Gov. Code, § 913.) The notice may be sent by personal delivery,
mail, or electronically. (Gov. Code, § 915.4.)
Fourth, Government Code section 945.6,
subdivision (a), provides (subject to certain exceptions not at issue here):
“[A]ny suit brought against a public entity
on a cause of action for which a claim is required to be presented … must be
commenced:
(1) If written notice is given in accordance
with Section 913, not later than six months after the date such notice is
personally delivered or deposited in the mail.
(2) If written notice is not given in
accordance with Section 913, within two years from the accrual of the cause of
action.”
Here, according to the FAC, Eternity died on August
11, 2020. (FAC, ¶¶ 11, 24.) The Complaint was filed on August 10, 2022.
Plaintiffs further allege in paragraph 2 of
the FAC:
“Plaintiffs have
exhausted their administrative remedies by duly and properly and timely filing
proper notices of claim pursuant to the Government Claims Act …. Plaintiffs filed their Notices of Claim with
County of Los Angeles on February 5, 2021.
Defendant County of Los Angeles neither accepted nor rejected
plaintiffs’ notices of claims. County of
Los Angeles provided no response to Plaintiffs within the 45-day statutory
notification period. Therefore, the
notices of claim were deemed rejected by operation of law. This lawsuit was timely pursuant to the
notices of claims being rejected by operation of law.”
(FAC, ¶ 2.)
Plaintiffs argue that their causes of action are
timely. Plaintiffs’ argument is, in
summary: (1) Plaintiffs allege in paragraph 2 of the FAC that Defendant never
provided the required written notice of the rejection of their claims; (2) on demurrer,
the Court must accept the allegations in the FAC as true; (3) as a result, at
least for purposes of ruling on this Demurrer, the two-year statute of limitations
of Government Code section 945.6, subdivision (a)(2) applies, not the six-month
limitations period of subdivision (a)(1); and (4) the Complaint was filed within
two years from the accrual of the causes of action.
Defendant does not contend that the causes of action are
time-barred based upon the allegations of the FAC. Instead, Defendant contends that the Court
may and should take judicial notice of certain documents that show that
Defendant did in fact provide the required written notice of the rejection of
Plaintiffs’ claims. Based on those judicially
noticeable facts, Defendant argues, it is clear that the six-month limitations period
of section 945.6, subdivision (a)(1) applies, and all of the causes of action in
the FAC are time-barred.
Defendant asks the Court to take judicial notice of eight
documents: four claims submitted by or on behalf of Plaintiffs and four
rejection notices. Plaintiffs do not
object to the request for judicial notice of the four claims. As to the four claims, the Court finds that
the requirements for judicial notice under Evidence Code section 452,
subdivision (h), are satisfied. The
Court GRANTS Defendant’s Request for Judicial Notice of Exhibits A, C, E, and
G.
Plaintiffs do oppose Defendant’s request for judicial
notice of Exhibits B, D, F, and H, however, and this request a more detailed
discussion.
Defendant asks the Court to take judicial notice of four
claim rejection notices (Exhibits B, D, F, and H) under Evidence Code section
452, subdivision (h). Subdivision (h) authorizes
the Court to take judicial notice of “Facts and propositions that are not
reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.” In effect, Defendant is asking the Court to
take judicial notice (through Exhibits B, D, F, and H) of the asserted fact
that Defendant mailed notices of rejection of claim to Plaintiffs on July 6,
2021.
For at least two independent reasons, however, the Court must
deny this request.
First, the proofs of service attached to Exhibits B, D,
F, and H are blank (unsigned). To be
clear, Defendant’s request is not limited to a request that the Court to take judicial
notice of the fact that these four rejection notices were drafted and prepared
by the County; rather, Defendant is asking the Court to take judicial notice of
the fact that these notices were actually mailed to Plaintiff on July 6, 2021. The critical evidence on that point, however,
is lacking. To risk stating the obvious,
an unsigned proof of service is not proof of service.
The Court recognizes that Defendant did submit revised
versions of Exhibits B, D, F, and H with its reply papers, and the revised
versions do have signed proofs of service.
But the Court will not, under these circumstances, accept new evidence
with reply papers. The evidence in
support of a motion must be presented with the moving papers. A party cannot offer some evidence with a
motion, realize after reviewing the opposition that the evidence was not sufficient,
and then offer additional evidence in support of a motion in the reply. And
indeed, the Legislature has specifically provided that in precisely this
context – when a demurrer is based in part on a request for judicial notice – the
matters of which the demurring party requests judicial notice “shall be
specified in the demurrer, or in the supporting points and authorities for the
purpose of invoking such notice.” (Code
Civ. Proc., § 430.70.)
Second, and independently, the asserted fact of which Defendant
asks the Court to take judicial notice – that Defendant actually mailed the
notices of rejection to Plaintiff on July 6, 2021 – is disputed. Plaintiff says that it did not happen. (FAC, ¶ 2.)
Defendant says that it did. (Request
for Judicial Notice, at p. 3.) Where, as
here, a fact is disputed, judicial notice under Evidence Code section 452,
subdivision (h), is not proper. (Tenet
Healthsystem Desert v. Blue Cross of California (2016) 245 Cal.App.4th 821,
836); Richtek USA v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651,
659-660); Williams v. Southern California Gas Co. (2009) 176 Cal.App.4th
591, 600.)
The case
of Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131 is
particularly instructive. There, as
here, the question was whether the trial court, on demurrer, could take
judicial notice of the mailing of a notice of rejection of claim under the
Government Claims Act. (Id., at
p. 1133.) Defendant there presented evidence
of the mailing through proofs of service, just as Defendant does here (on
reply). (Ibid.) Before ruling on the demurrer, the trial
court in Cruz ordered the parties to take the deposition of the person
who signed the proof of service; after the deposition was taken, and based on the
testimony of the witness, the court sustained the demurrer without leave to
amend. (Ibid.) On appeal, however, the Court of Appeal
reversed, reasoning that a demurrer, even one supported by a request for
judicial notice, “is simply not the appropriate procedure for determining the
truth of disputed facts.” (Id. at
p. 1134.) “[B]ecause it was inappropriate
at that stage of the proceedings to resolve the factual issue involved, it was
error for the trial court to sustain respondent’s demurrer.” (Ibid.)
Accordingly, for each of
these two independent reasons, the Court DENIES Defendant’s request to take
judicial notice of Exhibits B, D, F, and H.
Reviewing the allegations in
the FAC, including paragraph 2, and assuming the factual allegations are true,
as the Court must on demurrer, Plaintiffs’ three causes of action against
Defendant are not time-barred on their face.
Thus, Defendant’s Demurrer on this basis to the three causes of action
in the FAC is OVERRULED.
Survival Cause of Action for Negligence (Second Cause of
Action)
In the Second Cause of Action in the FAC, Plaintiffs
assert a survival claim for negligence with regard to Eternity. Defendant argues in its Demurrer that
Plaintiffs have not filed the declarations required by Code of Civil Procedure
section 377.32 and that, as a result, the Second Cause of Action “fails to
state facts sufficient to constitute a survival cause of action for Negligence”
against Defendant.
The Court agrees that Plaintiffs must comply with Code of
Civil Procedure section 377.32. If Plaintiffs
fail to do so, they will not be able to proceed through litigation, and to
resolution, on their Second Cause of Action.
But a demurrer is not the proper vehicle to challenge the
failure to comply with section 377.32. The
Legislature does not require that the declaration required by section 377.32
must be included within a complaint or filed concurrently with the
complaint. A demurrer tests only the
legal sufficiency of the challenged pleading., and here Plaintiffs allege in
their FAC that each of them is the successor in interest to Eternity. (FAC, ¶¶ 3-5.) That is sufficient for pleading purposes. Enforcement of the requirements of section
377.32 (if Plaintiffs continue to fail to comply with its provisions) must
proceed through some other means, not by a demurrer for failure to state facts
sufficient to constitute a cause of action under Code of Civil Procedure section
430.10, subdivision (e).
Accordingly, Defendant’s Demurrer to the Second Cause of Action on
the ground that it fails to state facts sufficient to constitute a cause of
action is OVERRULED.
Conclusion
The Court OVERRULES Defendant’s Demurrer.