Judge Yolanda Orozco, Case 20STCV36946 2023-03-14 Tentative Ruling

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This case stems from an injury allegedly suffered by Yadira Moreno (“Plaintiff”) on September 26, 2018. (Complaint, 3:3.) Plaintiff filed a Complaint on September 28, 2020 against Force 12 Training Center and the City of Los Angeles.

Defendant City of Los Angeles (“Defendant”) filed the instant Demurrer and Motion to Dismiss (“Demurrer”) on February 7, 2023. To date, the Court has not received opposition papers from Plaintiff. Opposition papers were due on March 1, 2023. Defendant filed reply papers on March 3, 2023. The instant Demurrer is unopposed.

Pursuant to California Evidence Code § 452 and § 453, the Court grants the request for judicial notice as to the following:

“Before filing a demurrer…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.” (CCP § 430.41(a); see also CCP § 435.5 (imposing similar requirements for a motion to strike).) However, per CCP § 430.41(a)(4), “A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”

Here, Defendant has met their burden under the meet and confer requirement of CCP § 430.41(a). On December 29, 2022, Defendant spoke over the telephone with Plaintiff’s counsel, and followed up with an email later that same day. (Declaration of Margaret Shikibu, hereinafter, “Shikibu Dec.”, ¶4-5). Another email was sent on January 11, 2023, but the parties were unable to reach any agreement. (Shikibu Dec., ¶ 6-7).

Defendant reached out twice to confer with Plaintiff but was unable to reach an agreement. Here, the meet and confer requirement has been met.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

The Court will note that Plaintiff’s opposition papers were due on March 1, 2023. The Court did not receive opposition papers by March 1, 2023, and pursuant to California Rules of Court, rule 8.54(c), a failure to oppose a motion may be deemed a consent to the granting of the motion. Here, the Court will sustain the Demurrer and address the merits below.

Defendant puts forth two principal arguments on the merits: (1) the action is barred by Government Code § 945.6 and (2) that Defendant cannot be held liable because the incident in question occurred outside of the city limits of Los Angeles.

As to the first contention, Government Code § 945.6 places a firm deadline on when a Plaintiff must bring their action. Specifically, Government Code § 945.6(a)(1) provides in relevant part:

“(a) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced: (1) If written notice [of rejection of a claim] is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.”

Here, the Claim for Damages was filed with Defendant by or on behalf of the Plaintiff on March 26, 2019. (Claim for Damages). A written denial was issued and mailed to Plaintiff by Defendant on March 28, 2019. (Request for Judicial Notice, Exh. 2, hereinafter, “Denial”). Therefore, the deadline for Plaintiff to have filed her claim against Defendant, according to Government Code § 945.6(a)(1) would have been September 28, 2019. Plaintiff filed her Complaint with the Court on September 28, 2020, one full year after the deadline. Therefore, Plaintiff’s claim is barred by the statute of limitations in Government Code § 945.6(a)(1).

As the demurrer is sustained on this ground, the Court need not reach Defendant’s alternate argument.[2]

Based on the foregoing, Defendant’s demurrer to the first and only cause of action is SUSTAINED.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”].

Because there is no reasonable possibility of successful amendment proffered, the court will deny leave to amend the Complaint.

Hon. Audra Mori

Judge of the Superior Court

[1] The court takes judicial notice of the claims, but not the truth of any matters asserted therein. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369-70 n. 1; see also Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-53.)

[2] Defendant also contends that it cannot be held liable because the incident in question occurred outside of the city limits of Los Angeles. A public entity may be held liable for alleged injuries caused by a dangerous condition on its public property. (Government Code § 835). While Defendant asserts that Plaintiff alleges that the injury occurred at the intersection of Patata Street and Wilcox Avenue in Bell Gardens, California, 90201, this allegation does not exist in the Complaint. Rather, the Complaint alleges, “defendants, FORCE 12 TRAINING 22 CENTER; CITY OF LOS ANGELES; AND DOES l-50 INCLUSIVE and DOES 1 thru 23 50, and each of them, were the owners, care takers, and managers of a building located in Los Angeles” where Plaintiff was injured. Plaintiff provides no authority for supplanting the allegations of the Complaint with those in the claim.