Judge: William A. Crowfoot, Case: 22STCV28056, Date: 2022-12-13 Tentative Ruling

Case Number: 22STCV28056    Hearing Date: December 13, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On August 26, 2022, plaintiff Robert Danbom (“Plaintiff”) filed this action against defendants City of Los Angeles (“Defendant”) (erroneously sued also as “Los Angeles Fire Department”), and Vincent Douglas Leong arising from a September 2, 2021, collision between a fire tiller and a motorcycle.  

          On November 2, 2022, Defendant filed this demurrer on the grounds that Plaintiff’s Complaint was filed more than 6 months after Defendant gave written notice that his prelitigation claim was rejected. 

          On November 30, 2022, Plaintiff filed an opposition brief.

          No reply brief is on file.   

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”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)  The party filing the demurrer must include a supporting memorandum of points and authorities.  (Cal. Rules of Court, rule 3.1113(a).)

          Carol Attarian declares that she met and conferred with Plaintiff’s counsel over the telephone and over email from September to November 2022 to address the issues raised in the demurrer, but that the issues could not be resolved.  The meet and confer requirement is satisfied.

Prior to filing a suit against a public entity, a plaintiff must comply with the Government Tort Claims Act, which states, in part: “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 board, or has been deemed to have been rejected by the board . . .”  (Gov. Code, § 945.4.)  A claim for death or injury to person or personal property shall be presented not later than six months after the accrual of the cause of action.  (Gov. Code, § 911.2, subd. (a).)  A lawsuit based on this claim must be commenced not later than six months after written notice denying the claim is deposited in the mail.  (Gov. Code, §§ 913, 945.6, subd. (a).)   

Cavey v. Tualla (2021) 69 Cal.App.5th 310 addresses the submission of an unauthorized initial tort claim followed by the submission of a second, authorized tort claim within six months of the accident.  There are three factors considered in scenarios like this one: (i) whether the first claim was in fact authorized by the plaintiff, (ii) whether it was subsequently ratified by the plaintiff, and (iii) whether the plaintiff repudiated it.  (Id. at pp. 341-344.)  The Cavey court found that the second government claim submitted controlled the statute of limitations because the plaintiff did not intend for the first one to be filed by her medical provider.  Even though the plaintiff in Cavey had signed the claim, the plaintiff averred that she thought she was signing lien forms from her medical provider instead of a government claim.  Accordingly, the Cavey court concluded that the public entity's notice of rejection of an unauthorized, unratified claim has no legal effect and, thus, the notice of rejection did not trigger the six-month statute of limitations. 

Defendant explains that Plaintiff submitted two claims arising from this collision.  One claim was filed on December 21, 2021, by Brown, Koro & Romag (“BKR”) and is referred to in Defendant’s brief as the “First Government Claim.”  The other claim was filed on February 24, 2022, by Plaintiff’s current attorney, Filippo Marchino of The X-Law Group PC and referred to in Defendant’s brief as the “Second Government Claim.”   Defendant argues that Plaintiff’s complaint is time-barred because it sent written notice of its rejection of Plaintiff’s First Government Claim on January 6, 2022, but this complaint was not filed until August 26, 2022.  Defendant distinguishes Cavey by arguing that Plaintiff could have only retained BKR for the purpose of initiating a lawsuit, whereas the plaintiff in Cavey was signing forms from her medical provider, not her lawsuit.

In opposition, Plaintiff argues that he did not authorize BKR to submit the First Government Claim because he did not personally contact or retain BKR.  Plaintiff declares that following his accident, and while he was hospitalized, his former partner contacted BKR to discuss the viability of a lawsuit.  (Danbom Decl., ¶ 6.)  However, following his discharge from the hospital, he interviewed a few lawyers and decided to retain The X-Law Group PC.  (Danbom Decl., ¶ 7.)  Plaintiff declares that he never authorized or ratified the submission of the First Government Claim by BKR and only approved of the Second Government Claim that was submitted by The X-Law Group PC on February 24, 2022.  (Danbom Decl., ¶ 8.)  He also declares that he repudiates the BKR claim.  (Danbom Decl., ¶ 9.)  Plaintiff concludes by arguing that his complaint is timely because Defendant did not give Plaintiff any notice that his Second Government Claim was rejected and he filed this complaint within two years from the accrual of the cause of action.  (Gov. Code, § 945.6(a)(2).)  

Defendant did not file a reply and the Court finds that even if it did, the issues of authorization and ratification is one beyond the pleadings and inappropriate for consideration on a demurrer.  Accordingly, the demurrer is overruled. 

IV.     CONCLUSION

In light of the foregoing, the Court OVERRULES Defendant’s demurrer.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@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.