Judge: William A. Crowfoot, Case: 22AHCV01370, Date: 2024-10-03 Tentative Ruling

Case Number: 22AHCV01370    Hearing Date: October 3, 2024    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.      INTRODUCTION

         On December 22, 2022, plaintiff Greg Lewis (“Plaintiff”) filed this action against defendant County of Los Angeles (“Defendant”), which includes Los Angeles County Department of Children and Family Services (“DCFS”) (DCFS was erroneously sued as a separate entity). Plaintiff also named Alma Flores (“Flores”) and Christine Ramirez (“Ramirez”) as defendants. Plaintiff asserts causes of action for violation of 42 U.S.C. § 1983, negligence per se, negligence, and violation of Civil Code section 52.1 (“Bane Act”).

          On May 15, 2023, Defendant filed a notice of removal to federal court. While the action was pending in federal court, Plaintiff filed a first amended complaint (“FAC”), a copy of which is not available in the Court’s records. On April 16, 2024, the district court dismissed Plaintiff’s first and second causes of action and remanded the remaining third and fourth state law causes of action.

On May 22, 2024, Defendant filed this demurrer on the grounds that Plaintiff failed to comply with the claim presentation requirements of Government Code section 911.2, et seq. Defendant further demurs to the third and fourth causes of action because Plaintiff fails to state facts sufficient to constitute a cause of action for negligence per se and negligence.

On September 18, 2024, Plaintiff file an opposition brief.

On September 25, 2024, Defendant filed a reply brief.

II.     LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

III.    DISCUSSION

Defendant demurs to the FAC on the grounds that Plaintiff failed to comply with the Government Tort Claims Act and cites to Paragraph 16, which purportedly alleges that Plaintiff filed his prelitigation claim on March 24, 2022. (Demurrer, p. 6, citing FAC, ¶ 16.) Defendant also demurs to the FAC on the grounds that Plaintiff fails to set forth a statutory basis for his negligence and negligence per se claims.

As a demurrer tests the allegations of the complaint, the Court cannot determine if the FAC’s allegations are sufficient if the FAC is not on file with the Court. Also, no copy of the FAC was attached to the demurrer; only a copy of the district court’s order on Defendant’s motion to dismiss is included. Accordingly, the Court continues the hearing to ________ so that Plaintiff may file a copy of the FAC for the Court’s records.

IV.    CONCLUSION

The hearing is continued to _______ at 8:30 a.m. in Department 3 of the Alhambra Courthouse. Plaintiff must file a copy of the FAC at least 5 court days before the date of the next hearing. No further briefing is allowed.

Moving party to give notice.

Dated this 3rd day of October 2024

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.