Judge Steven A. Ellis, Case Number: 23STCV29440, Date: 2024-03-06 Tentative Ruling

Judge: Steven A. Ellis, Case: 23STCV29440, Date: 2024-03-06 Tentative Ruling

Case Number: 23STCV29440 Hearing Date: March 6, 2024 Dept: 29

Demurrer filed by Defendant Los Angeles Unified School District.

Tentative

The demurrer is sustained with leave to amend.

Background

Plaintiff Penny Lavitt alleges that she was seriously injured on June 9, 2023, when a student at Mt. Washington Elementary School “ran full speed off the yard and collided with her.” (Complaint, ¶ 8.) Plaintiffs Penny Lavitt and Martin Lavitt (“Plaintiffs”) filed their complaint on November 30, 2023, against Los Angeles Unified School District (“LAUSD”) and Does 1 through 25 asserting causes of action for negligence, failure to perform mandatory duty, and loss of consortium.

On February 2, 2024, LAUSD filed this demurrer.

Plaintiffs have not filed any opposition to the demurrer. On February 20, 2024, however, Plaintiffs filed a First Amended Complaint (the “FAC”). In the FAC, Plaintiffs assert statutory causes of action under the Government Code for dangerous condition and failure to supervise, as well as a common law cause of action for loss of consortium. It appears that Plaintiffs did not serve the FAC until February 26.

LAUSD filed a reply in support of the demurrer on February 28, 2024.

Plaintiff’s counsel filed a declaration on March 4, 2024. The Court would normally disregard such an authorized sur-reply, but the Court will consider (subject to any response of LAUSD) the factual representations of counsel that Plaintiff did not serve LAUSD with the FAC on February 20; that this was “due to a miscommunication in our office””; and that the FAC was not served until February 26. (Bostwick Decl., ¶¶ 7, 10.)

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 only be sustained 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.)

"Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).)

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.” (Code of Civ. Proc., § 472, subd. (a).)

Meet and Confer

LAUSD satisfied the statutory meet and confer requirement. (Noeil Decl., ¶ 4.)

Discussion

Plaintiffs filed the FAC timely on February 20, but they did not serve LAUSD until February 26, after their opposition was due. A party has a right to amend its pleading once without leave to amend if it files and serves by the time an opposition to a demurrer is due. Plaintiff was untimely with serving Defendant, and did not obtain either leave from the Court or a stipulation from LAUSD.

As such, the FAC was not timely filed, and the Court will evaluate Defendant’s demurrer to the Complaint.

LAUSD contends that Plaintiff has failed to plead facts demonstrating that they presented a claim to LAUDS in accordance with the Claims Act. (Motion, 4:7-9.) LAUSD argues it is a “local public entity,” under Government Code section 900.4, and as such, a claim is barred until a written claim has been presented to the public entity and have been acted upon or rejected by that entity in accordance with Government Code section 945.4.

The Court finds that Plaintiff has not pled sufficient facts in their complaint to show it filed an administrative claim against LAUSD.

Therefore, LAUSD’s demurrer is SUSTAINED.

The Court grants Plaintiffs leave to amend within 21 days.

Conclusion

The Court SUSTAINS the demurrer with leave to amend.

The Court GRANTS Plaintiffs leave to amend their complaint within 21 days of notice.

Moving Party is to give notice.