Judge: Thomas Falls, Case: 22PSCV00023, Date: 2022-08-26 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Case Number: 22PSCV00023    Hearing Date: August 26, 2022    Dept: R

(1)   Defendant County of Los Angeles’ Demurrer to Plaintiffs’ Complaint

(2)   Defendant County of Los Angeles’ Motion to Strike

Responding Party (to both): Marciela Salgado and Moises Testa (collectively, “Plaintiffs”)

Tentative Ruling

(1)   Defendant County of Los Angeles’ Demurrer to Plaintiffs’ Complaint is SUSTAINED with 30 days leave to amend.

(2)   Defendant County of Los Angeles’ Motion to Strike is MOOT.

Background

Plaintiffs allege the following against Defendant County of Angeles (“Defendant County” or “County”), Defendant A&JB General Contractor’s Inc. (“Defendant A&JB”) and Does 1-10: The County contracted with two private companies, Renovate America and Renew Financial, to administer its Property Assess Clean Energy (“PACE”) program. The County’s administrators, like Renovate America, in turn worked with home improvement contractors, such as Defendant A&JB, to solicit homeowners in participation in the County’s PACE program. Plaintiffs initially made an appointment with Defendant A&JB for the installation of a central air conditioning. However, unbeknownst to Plaintiff, a $70,000 lien for a garage conversion was placed on their home, a job which was never performed. Moreover, the County placed a PACE lien on Plaintiffs’ property for an ADU—which was never built—three months before Plaintiffs entered into a contract for the ADU.[1]

On January 12, 2022, Plaintiffs, who at the time were pro per, filed suit against Defendants for:

1.      Refund Of Taxes

2.      Declaratory Relief – Unlawful Contract As A Matter Of Law

3.      Declaratory Relief – Unlawful Contract As A Matter Of Public Policy

4.      Violation Of The Home Solicitation Act

5.      Declaratory Relief – Unenforceable Contract Under Bus. & Prof. § 7153

6.      Rescission Of Contract

7.      Violation Of Fin. Code §§ 22686, 22687

8.      Violation Of Gov. Code § 815.6

9.      Cancellation Of Taxes

10.  Declaratory Relief and Demand For Jury

On March 16, 2022, Plaintiffs filed an ‘Association of Attorney.’

On April 4, 2022, Defendant County filed the instant Demurrer.

On April 5, 2022, Defendant County filed its Motion to Strike.

On May 20, 2022, Plaintiffs filed their Opposition to the Demurrer and the Motion to Strike.

On May 26, 2022, Defendant County filed its Reply.

On June 3, 2022, the court heard oral argument on the matter.

Legal Standard

A demurrer may be asserted 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 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 (“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 CCP §411.35 or (i) by §411.36.  CCP §430.10.  Accordingly, 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.  (CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.)

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. (Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.)

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief.  (Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  (Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403.) Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.)

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  CCP §430.31(a).  As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies.  CCP §430.31(a)(1).  The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.  Id.  The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met.  CCP §430.31(a)(3).   

Request for Judicial Notice

Plaintiffs’ Request for Judicial Notice is granted.

Discussion

During the June 3, 2022 hearing, both parties extensively and effectively argued the matter. As the hearing still left uncertainty as to whether Plaintiffs were required to comply with the Government Claims Act, the court sought supplemental briefing. After reading both Parties’ papers, the court finds that Plaintiffs were to comply with the Government Claims Act. 

The Tort Claims Act (Gov. Code, § 810 et seq.) establishes the basic principles of public agency liability for damage claims, whether those claims sound in tort or contract. Compliance with these procedural rules, including those requiring the filing of an administrative claim within the applicable six-month or one-year statute of limitation, operate as prerequisites to the filing of a civil action against the public agency. (See Gov. Code, §§ 945.6 and 946.) The Tort Claims Act, however, does not treat all claims the same. Specifically, the uniform procedures for claims against local public entities are limited by Government Code section 905, -2- which exempts some damage claims from the Tort Claims Act claims-presentation requirements (Gov. Code, § 900 et seq. and § 910 et seq.). Government Code section 905 excludes twelve categories of claims, many of which have specific claims procedures provided for them in other statutes. Included among the list of excluded categories of claims are, pertinent to this instant matter,

Government Code section 905, subdivisions (a) and (h). Section 905(a) provides that claim presentation is not required for (1) claims under the Revenue and Taxation Code or other statute for the refund, rebate, exemption, cancellation, amendment, modification, or adjustment of any tax, assessment, or fee. (Gov. Code § 905 (a)) (emphasis added).

Section 905(h) provides that claim presentation is not required for claims that relate to a special assessment constituting a specific lien against the property assessed and that are payable from the proceeds of the assessment, by offset of a claim for damages against it or by delivery of any warrant or bonds representing it, the very matters at issue. (Gov. Code § 905(h)) (emphasis added).

However, the County advances a dispositive argument as to the inapplicability of section 905:

Plaintiffs are seeking damages beyond the amount of the $70,000 tax assessment because Plaintiffs allege that they suffer additional general and special damages in addition to the offset by the PACE lien. (Reply Brief p. 3.)

As Defendant County explains:

Plaintiffs’ additional monetary request for pain and suffering as a result of the PACE tax lien would have, at the very least, been investigated by County had Plaintiffs presented the government claim to County. Plaintiffs failed to provide County with that opportunity to investigate by failing to present a government claim, and is now precluded from asserting these claims against County. As such, the fact that Plaintiffs contend that they complied with the Revenue and Taxation Code’s administrative procedures for submission of a tax claim does not excuse Plaintiffs from the additional requirement that Plaintiffs file a timely government tort claim before suing County.

(Reply Brief to Opp. Brief p. 3.)

In Opposition, Plaintiffs cite to Minsky v. City of Angeles (1974) 11 Cal.3d 113 for the proposition that the Government Claims Act only applies to claims for monetary relief and not those for non-pecuniary actions. (Opp. p. 12.)

The court finds Minsky inapposite. In Minsky, the California Supreme Court was confronted with the issue of whether presentation of a government claims act was by an arrestee for the return of property (the sum of $7,720) taken by local police officers at the time of arrest and wrongfully withheld following the disposition of criminal charges. The court—in relying upon an analysis of the language, the historical setting, and the policies of the claims statutes—found that “[a]lthough the instant complaint does not expressly seek specific recovery of the money in question, it does contain a general prayer for any such relief as the court may deem just and proper, and under established California authority, the facts alleged by the complaint are sufficient to support a claim for specific recovery of the sums seized and allegedly wrongfully withheld from plaintiff.” (Id.  at 121-122.)

Here, while Plaintiffs are seeking money, it is not tangible property. Put differently, while in Minksy the court stated that “the arrestee retains his right to eventual specific recovery, whether he seeks to regain tangible property like an automobile, ring, wallet or camera, or whether he seeks to recover a specific sum of money which, under general constructive trust principles, is traceable to property within the possession of the defendant,” here, the money Plaintiffs seek (general and specific damages) are neither tangible nor specific. (Id. at 121) (emphasis added). Thus, applying the reasoning of Minsky, as the additional prayer for relief does not involve a claim for ‘money or damages' within the meaning of section 905, it would thus fall within the presentation requirements of sections 911.2 and 945.4.

Accordingly, the court need not consider the remainder of the Parties’ arguments.[2]

As Plaintiffs seek leave to amend on this issue and argue that they have presented a property government claim (Opp. p. 12), the court grants leave to amend.

Conclusion

Based on the foregoing, the Demurrer is SUSTAINED with 30 days leave to amend.