Judge: Steven A. Ellis, Case: 22STCV31873, Date: 2024-01-05 Tentative Ruling
Case Number: 22STCV31873 Hearing Date: January 5, 2024 Dept: 29
Demurrer filed by Defendant Los Angeles Unified School
District.
Motion to Strike filed by Defendant Los Angeles Unified
School District.
Tentative
The
Demurrer is SUSTAINED without leave to amend.
The
Motion to Strike is GRANTED without leave to amend.
Background
This case arises out of a tragic set of
circumstances in which (as is alleged) a minor child, Giancarlo Calvo, died on
November 17, 2021, following one or more fights with other students at school that
had occurred in the prior period of approximately three weeks.
On or about March 29, 2022, Giancarlo’s
parents (Elvia Celis-Salas and Carlos Calvo) and Giancarlo’s sister (Lesley
Karina Calvo) submitted claims for damages to the Los Angeles Unified School
District under the provisions of the Government Claims Act. (First Amended Complaint [“FAC”], Exh.
A.) Those claims were denied.
On September 29, 2022, Plaintiffs Elvia Celis-Salas
and Carlos Calvo (“Plaintiffs”) filed the initial Complaint in this action against
Los Angeles Unified School District (“Defendant”), and Does 1 through 100, asserting
causes of action for (1) Negligence, (2) Negligent Hiring, Retention,
Supervision and Training, and (3) Wrongful Death arising out of the injuries to
and death of Giancarlo. Defendant filed
its Answer on November 7, 2022.
On October 9, 2023, the Court granted Defendant’s
Motion for Judgment on the Pleadings as to the first and second causes of
action in the Complaint, on the ground that Defendant owed no duty of care to
Plaintiffs (the parents of a student).
The Court granted Plaintiffs leave to amend.
On November 7, 2023, the FAC was filed. The FAC states that the plaintiffs are “ELVIA
CELIS-SALAS, individually and as successor-in-interest to GIANCARLO CALVO,
deceased; CARLOS CALVO, individually; and GIANCARLO CALVO, deceased.” The FAC asserts causes of action for (1)
Survival Action (negligence); (2) Survival Action (negligent hiring, retention,
supervision, and training); and (3) Wrongful Death. The first two causes of action are brought by
Ms. Elvia Celis-Salas as successor-in-interest to Giancarlo. (FAC, ¶¶ 21-22, 33-34.) The third cause of action is brought on
behalf of Ms. Celis-Salas and Mr. Carlos Calvo on their own behalf. (Id., ¶ 47.)
On December 11, 2023, Defendant filed a demurrer
and a motion to strike portions of the FAC.
On December 21, 2023, Plaintiffs filed their
opposition to the demurrer, and on December 28 Defendant filed its reply.
Plaintiffs did not file any opposition to the
motion to strike.
Legal
Standard
A demurrer is a pleading used to test
the legal sufficiency of other pleadings. It raises issues of law, not
fact, regarding the form or content of the opposing party's pleading
(complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the
function of the demurrer to challenge the truthfulness of the complaint; and
for purposes of ruling on the demurrer, all facts pleaded in the complaint are
assumed to be true. (Id.)
A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116
Cal.App.4th at p. 994.) No other extrinsic evidence can be
considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868,
881 [error for court to consider facts asserted in memorandum supporting
demurrer]; see also Afuso v. United States Fid. & Guar. Co.
(1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal
v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider
contents of release not part of court record].)
A demurrer can be utilized where the
“face of the complaint” itself is incomplete or discloses some defense that
would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001)
94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes
material contained in attached exhibits that are incorporated by reference into
the complaint; or in a superseded complaint in the same action. (Frantz v.
Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v.
Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and
accept as true the contents of the exhibits and treat as surplusage the
pleader’s allegations as to the legal effect of the exhibits.”]).
A demurrer can be sustained only when
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.)
Code Civ. Proc. Section 436 permits trial
courts to strike out any irrelevant, false, or improper matter inserted in a
pleading:
“The
court may, upon a motion made pursuant to Section 435, or at any time in its
discretion, and upon terms it deems proper:
(a) Strike out any irrelevant, false, or
improper matter inserted in any pleading.
(b) Strike out all or any part of any
pleading not drawn or filed in conformity with the laws of this state, a court
rule, or an order of the court.” (Code Civ. Proc. § 436.)
In ruling on a motion to strike, the court must assume the
truth of the properly pleaded facts in the complaint or other pleading. (Turman v. Turning Point of Central California,
Inc. (2010) 191 Cal.App.4th 53, 63.)
Before the filing a demurrer or
motion to strike, the parties are required to meet and confer. (Code Civ. Proc., §§ 430.41, subd. (a); 435.5,
subd. (a).)
Meet and Confer Requirement
The statutory meet-and-confer
requirement is satisfied here. (Mullane Decl.,
¶¶ 3-4.)
Discussion
Demurrer
Defendant argues that the first and second
causes of action are barred based upon the failure to present a timely claim
under the Government Claims Act.
Government Code section 945.4 provides that
no suit for money damages may be brought against a public entity before it has
been presented with a written claim. “Compliance
with the claims provisions is mandatory. …
Fulfilling the requirements of the tort claims presentation procedure is
a condition precedent to filing suit; it is not an affirmative defense.” (Castaneda
v. Dep't of Corr. & Rehab. (2013) 212 Cal.App.4th 1051, 1061.) “Generally,
each claimant must file his or her own tort claim. When people suffer separate
and distinct injuries from the same act or omission, they must each submit a
claim. One claimant cannot rely on a claim presented by another.” (Id.,
at p. 1062.)
Here, there is no doubt that each of the Plaintiffs
submitted a claim to Defendant under the Government Claims Act to Defendant. (FAC, Exh. A.) The question, however, is whether anyone
submitted a claim on behalf of, or as successor-in-interest to, Giancarlo, the
deceased child.
On this record, the Court is forced to answer
that question in the negative. Three
claims are attached to the FAC – one from each of the Plaintiffs and a third
from Giancarlo’s sister Lesley Calvo. (FAC,
Exh. A.) None of those three claims
indicates that it is brought on behalf of, or as successor-in-interest to,
Giancarlo. To the contrary, the
claimants on the three forms are listed as Lesley Karina Calvo, Elvia
Celis-Salas, and Carlos Calvo-Castanon.
(Ibid.)
Wrongful death claims are distinct from
survival claims. The filing of a claim
under the Government Claims Act by a parent (or other relative) on their own
behalf is not sufficient to comply with (or to establish substantial compliance
with) the claim-presentment requirement for a survival cause of action on
behalf of a decedent. (Nelson v. County
of Los Angeles (2003) 111 Cal.App.4th 783, 796-797.)
As no claim was presented to Defendant under the
Government Claims Act with regard to decedent’s survival causes of action, and
as the time period to file such a claim has expired, the Court SUSTAINS Defendant’s
demurrer to the First and Second Causes of Action in the FAC WITHOUT LEAVE TO
AMEND.
Motion to Strike
Defendant moves to strike the request for prejudgment
interest in the FAC on the ground that Civil Code section 3291 provides that prejudgment
interest is not available in a personal injury action against a public entity. Plaintiffs
did not file any opposition to the motion to strike.
The Court GRANTS Defendant’s Motion to Strike
is GRANTED WITHOUT LEAVE TO AMEND.
Conclusion
The Court
SUSTAINS Defendant’s Demurrer as to the First and Second Causes of Action in
the First Amended Complaint WITHOUT LEAVE TO AMEND.
The Court GRANTS
Defendant’s Motion to Strike the prayer for pre-judgment interest in the First
Amended Complaint WITHOUT LEAVE TO AMEND.
Moving party is
ordered to give notice.