Judge: Steven A. Ellis, Case: 23STCV17812, Date: 2025-02-28 Tentative Ruling

Case Number: 23STCV17812    Hearing Date: February 28, 2025    Dept: 29

Kuzhlev v. City of Los Angeles
23STCV17812
Defendant’s Demurrer to Complaint

Tentative

The demurrer is sustained without leave to amend.

Background

On July 28, 2023, Stanislav Kuzhlev (“Plaintiff”) filed a complaint against City of Los Angeles (“City”) and Does 1 through 50 for general negligence and premises liability arising out of an incident on September 2, 2022 in which, Plaintiff alleges, he was struck by a golf ball from the Los Feliz Golf Course.

On October 2, 2024, Plaintiff amended the complaint to name Rancho Los Feliz as Doe 1.

On January 21, 2025, City filed this demurrer to Plaintiff’s complaint.

No opposition has been filed.

Legal Standard

Code of Civil Procedure section 430.10 provides:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.”

A general demurrer under Code of Civil Procedure section 430.10, subdivision (e), tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see also 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial [2024], ¶ 7:40.)

“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  We also consider matters which 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; accord Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924; Marina Pacific Hotel and Suites v. Fireman’s Fund Insurance Company (2022) 81 Cal.App.5th 96, 104.)  All reasonable inferences must be drawn in favor of the pleading.  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Marina Pacific Hotel and Suites, supra, 81 Cal.App.5th at p. 104.)  Even “improbable” facts alleged in the pleading must be accepted as true.  (Marina Pacific Hotel and Suites, supra, 81 Cal.App.5th at pp. 104-105.)

Courts must “liberally construe the pleading” and “give the complaint a reasonable interpretation, reading it as a whole and its parts in context.”  (Id. at p. 105.)

A complaint must contain a “statement of facts constituting the cause of action, in ordinary and concise language.”  (Code Civ. Proc., § 425.10, subd. (a)(1); see also C.A. v. William S. Hart High School Dist. (2012) 53 Cal.4th 861, 872 [“the complaint need only allege facts sufficient to state a cause of action”].)  Ordinarily, a complaint “is sufficient if it alleges ultimate rather than evidentiary facts.”  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  Ultimate facts are those upon which “the right to recover depends” and are “essential” to the cause of action.  (Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636, 643 fn. 2; see also 1 Weil & Brown, supra, ¶ 6:124.)

A plaintiff is required to plead only “the essential facts of [its] case” that are sufficient “to acquaint a defendant with the nature, source and extent of [the] cause of action.”  (Doe, supra, 42 Cal.4th at p. 550.)  Mere boilerplate or pleading of legal conclusions is not sufficient.  (Id. at p. 551 fn. 5.)  But a plaintiff need not allege “each evidentiary fact that might eventually form part of plaintiff’s proof” at trial.  (C.A., supra, 53 Cal.4th at p. 872.)

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.)

Leave to amend should be granted when “there is a reasonable possibility that the defect can be cured by amendment.”  (Centinela Freeman, supra, 1 Cal.5th at p. 1010; Blank, supra, 39 Cal.3d at p. 318; Shaeffer v. Califia Farms (2020) 44 Cal.App.5th 1125, 1145.)

Meet and Confer Requirement

Before filing a demurrer, the parties must meet and confer.  (Code Civ. Proc., § 430.41, subd. (a).)  City has filed a declaration that states that Plaintiff’s counsel filed to respond to City’s meet and confer request.  (Mavian Decl., ¶¶ 3-9 & Exh. A.)

Judicial Notice

City requests that the Court take judicial notice of Plaintiff’s complaint, Plaintiff’s Application for Government Claim for Damages, and City’s Rejection of Plaintiff’s Application for Late Claim.

The request is granted.  The Court takes judicial notice of the documents (but not the truth of the matters asserted in the documents).

Discussion

City demurs to Plaintiff’s complaint on the ground that Plaintiff does not plead (and cannot plead) timely compliance with the Government Claims Act.

The Government Claims Act establishes detailed procedures and specific time limits for claims against public entities.  Under Government Code section 945.4, “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.”  The purpose of the claim presentment requirement is “to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” (Stockett v. Association of California Water Agencies Joint Powers Ins. Auth. (2004) 34 Cal.4th 441, 446 [quoting City of San Jose v. Super. Ct. (1974) 12 Cal.3d 447, 455].)

The process begins, first, with the presentation of the claim to the public entity.  (Gov. Code, §§ 905, 910, 910.2.)  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.”

If a party misses the deadline for submitting a timely claim to the public entity, the party may apply for leave to present an untimely claim.  (Gov. Code § 911.4, subd. (a).)  The application must be “presented to the public entity … within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.” (Gov. Code, § 911.4, subd. (b).) 

If the public entity denies the application to present a late claim, the claimant may file a petition in court seeking a court order “relieving the petitioner from Section 945.4.” (Gov. Code § 946.6, subd. (a).)  The petition must be filed with the court within six months after the entity denied the application to file a late claim.  (Id., subd. (b).) 

Here, Plaintiff alleges that his injury occurred on September 2, 2022.  (Complaint, at pp. 4, 5.)  Plaintiff did not file a claim within six months, as required by Government Code section 911.2.

On June 22, 2023, Plaintiff submitted an application for leave to present an untimely claim to City.  (Complaint, Exh. A.)  City denied the application on July 6, 2023.  (Request for Judicial Notice, Exh. B.) 

Plaintiff then had six months to file a court petition seeking relief from the requirement of a filing a timely claim with City.  (Gov. Code, § 946.6, subd. (b).)  More than six months have passed, and no such petition has been filed.

In sum, City has shown, based on the Complaint and judicially noticeable materials, that Plaintiff has not complied with the requirements of the Government Claims Act.

Plaintiff has not shown that any exception applies or that, with leave to amend, he could cure the defect in his pleading.  Indeed, Plaintiff has not filed any opposition at all, and it does not appear to the Court that there is any reasonable possibility that the defect could be cured by amendment.

Accordingly, the demurrer is sustained without leave to amend.  (See Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.4th 237, 247.)

Conclusion

The Court SUSTAINS the demurrer of City of Los Angeles to Plaintiff’s complaint without leave to amend.

The Court DISMISSES the complaint as to Defendant City of Los Angeles with prejudice.

Moving party to give notice.