Judge William A. Crowfoot, Case Number: 23AHCV02702, Date: 2024-11-19 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV02702, Date: 2024-11-19 Tentative Ruling

On November 17, 2023, plaintiff Marti Mackey (“Plaintiff”) filed this action against defendants City of Pasadena (“City”) and Jim Wong (“Wong”) for elder abuse and negligent and intentional infliction of emotional distress. Plaintiff alleges that she was wrongfully evicted from 540 N. Marengo Ave. #3, Pasadena, CA 91101 (“Property”) after City accepted $150,000 from a junior lienholder to reconvey its first lien deed of trust, which allowed the Property to be foreclosed upon. (Compl., ¶ 13.) Plaintiff alleges she was not required to make any monthly payments to the City because the Property “was designated for low to moderate income by the [City].” (Compl., ¶ 3.) Plaintiff claims she paid property taxes and maintained the Property for 6 years as required under the terms of the City’s lien. (Compl., ¶. 3.) Plaintiff further alleges that the payoff of the lien was concealed and that City failed to provide alternative housing to her even though she is a handicapped senior. (Comp., ¶¶ 15, 17.)

On April 25, 2024, Plaintiff filed the operative First Amended Complaint, asserting causes of action for breach of implied contract, negligent misrepresentation, intentional infliction of emotional distress (“IIED”) and negligent infliction of emotional distress (“NIED”). The FAC, which consists of over 70 pages of exhibits, alleges that City impliedly agreed that Plaintiff could stay in the Property subject to the City’s lien and breached this agreement when it reconveyed its lien. (FAC, ¶¶ 52-54.) Plaintiff alleges Wong, as City’s employee, made misleading statements about the City’s intent to preserve affordable housing units, causing her to pay significant amounts in back taxes, homeowners’ association fees, and maintenance. (FAC, ¶¶ 56-57.) Plaintiff also alleges she suffered emotional distress due to the foreclosure and eviction and that Defendants acted with reckless disregard when she was legally blind and unable to obtain alternate housing. (FAC, ¶¶ 59, 62.)

On June 27, 2024, Defendants filed this demurrer arguing that Plaintiff fails to state facts sufficient to constitute a cause of action. Defendants also filed a request for judicial notice.

On October 8, 2024, Plaintiff filed an amendment naming “City of Pasadena Successor-in-Interest to Pasadena Community Development Commission” as Doe 1.

On November 4, 2024, Plaintiff filed an opposition brief. On November 5, 2025, Plaintiff filed exhibits in support of her opposition brief and objections to Defendants’ request for judicial notice.

Defendants filed a reply brief on November 12, 2024, responding to Plaintiff’s opposition brief and objection.

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.)

Defendants request the Court take judicial notice of: (1) Claim No. 2023-0280 (“First Claim”) filed on April 14, 2023, by Plaintiff with the City, (2) a notice of rejection of Plaintiff’s First Claim (“First Notice of Rejection”), (3) Claim No. 2024-0201, filed on February 26, 2024 (“February 2024 Claim”), and (4) Claim No. 2024-0294 filed by Plaintiff on June 7, 2024 (“June 2024” Claim). Defendants also request judicial notice of Article X of the Charter of the City of Pasadena.

Plaintiff objects to the First Notice of Rejection and Article X, but the Notice of Rejection is judicially noticeable as an “official act” and record maintained by City (Evid. Code § 452(c)) and Article X of the City’s charter is law (Evid. Code, § 452(a).) Accordingly, Defendants’ request for judicial notice is GRANTED.

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.) Once a governmental entity has sent proper written notice rejecting a claim, the plaintiff has six months thereafter to file suit against the entity. (Gov. Code, § 945.6, subd. (a)(1).) The six-month period commences as soon as the notice is properly personally delivered or deposited in the mail even if not actually received by the claimant. (Ibid.) If written notice is not given, a claimant shall have 2 years from the accrual of the cause of action to file suit. (Gov. Code, § 945.6, subd. (a)(2).)

Here, Plaintiff presented her First Claim on April 14, 2023. The First Claim reflects the date of loss as April 14, 2023, and states, in part, the following:

- “City did not inform claimant or probate court of selling/or reconveying Jenkins DoT-1^st lien. 2^nd lien of R. May not valid as per Alhambra Court Case # 22AHCV00602.

(Serkisian Decl., Ex. A.) As for Plaintiff’s February or June Claims, those appear to concern other events not related to this action because Plaintiff identifies the date of loss on those as “January 31, 2024, and ongoing” (Serkisian Decl., Ex. C) and May 12 and May 28, 2024; therefore, they do not relate back to the First Claim.

City sent a notice of rejection on May 4, 2023, to Plaintiff’s P.O. Box 91722 in Pasadena, CA. Plaintiff then filed suit on November 17, 2023. Defendants point out that Plaintiff’s First Claim states “loss of housing”, “emotional distress”, and “legal fees” as her injuries arising from City’s reconveyance of its deed; therefore, Plaintiff’s FAC alleges claims which were reflected in her First Claim and rejected on May 4, 2023.

In Opposition, Plaintiff argues that her suit is timely filed because she filed a claim on April 14, 2023, and then re-submitted it because she forgot to date the first one. Plaintiff claims the City received this amended claim (attached as Exhibit 1) sometime between April 20 and April 24, 2023, but never sent a second notice of rejection. Plaintiff contends that because City did not act on her resubmitted claim, she had two years from the accrual of her causes of action to file the lawsuit. (Gov. Code, § 945.6, subd. (a)(2).)

Defendants argue that Plaintiff “cannot revise or reset the statute of limitations by re-filing a second claim with some of the same allegations.” (Demurrer, p. 8.) The Court agrees. Government Code section 910.6(a) states: A claim may be amended at any time before the expiration of the period designated in Section 911.2 [6 months after cause of action accrues] or before final action thereon is taken by the board, whichever is later, if the claim as amended relates to the same transaction or occurrence which gave rise to the original claim. The amendment shall be considered a part of the original claim for all purposes. (Gov. Code, § 910.6, subd. (a).)

Based on this statute, the City was not required to send a second notice of rejection to Plaintiff’s re-submitted claim sent in April 2023 because the re-submitted claim related to the same transaction or occurrence underlying the First Claim. (Compare Opp., Ex. 1 with Serkisian Decl., Ex. A.) Although Plaintiff does not include all pages of her re-submitted claim, Plaintiff admits that her First Claim was not dated, therefore she re-submitted it to include the date. Amending the claim to add a date by her signature is not grounds for construing the re-submitted claim as an entirely new claim.

Last, Plaintiff challenges the date that the Notice of Rejection was served. Plaintiff attaches subsequent correspondence and envelopes from the City that display variances between the date on the proof of service and the postage meter stamp on the envelope. (Code Civ. Proc.,§ 1013a(3) [service is presumed invalid if there is more than a one-day difference between the postmark or postage meter date and the date of service shown on the proof of service].) Here, the proof of service for the Notice of Rejection states it was deposited in the mail on May 4, 2023.

Plaintiff does not include a copy of the envelope for the Notice of Rejection even though she never denies receiving this Notice of Rejection; she merely contends that she is entitled to a second notice of rejection in response to her resubmitted claim – a proposition that is unsupported by law. (See Opp., p. 1.)

Furthermore, the Court cannot infer from Plaintiff’s submitted exhibits that City’s pattern and practice for mail service would allow a discrepancy of 14 days between the date on a proof of service and a meter stamp, which would be required for the Court to conclude that Plaintiff’s lawsuit was filed within the 6-month statute of limitations. Even if they were to be considered as evidence of anything relevant to this case, which the Court is not doing, the difference in the dates reflected on the meter stamps and proofs of service in other mailings provided by Plaintiff is 2 to 3 days at most. All that Plaintiff has shown is that Plaintiff understands the need to keep and provide the evidence of failure of the specific service in question if Plaintiff intends to rely on that to escape the requirements of the Government Claims Act.

William A. Crowfoot

Judge of the Superior Court

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.