Case Number: MC024271 Hearing Date: May 13, 2014 Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

MICHAEL EDWARD GOODALE, )
) Case Number MC024271
Plaintiffs, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
STATE OF CALIFORNIA, ) May 13, 2014
DEPARTMENT OF CORRECTIONS ) Dept. A-11
REHABILITATION, et al. ) Judge Randolph A. Rogers
)
Defendants. )
____________________________________)

The demurrer of Defendant Aubrey Group, Inc. to the First Amended Complaint came on for hearing on May 13, 2014. Plaintiff Michael Goodale appeared in propria persona. Defendant Aubrey Group, Inc. appeared through its counsel of record, ___________________________.

The demurrer of Defendants California Department of Correction and Rehabilitation, F. Smith, and M. Lerma, to the First Amended Compliant came on for hearing on May 13, 2014. Plaintiff Michael Goodale appeared in propria persona. Defendants appeared through their counsel of record, ___________________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:

The demurrer of Defendant Aubrey Group, Inc. is SUSTAINED with leave to amend through June 6, 2013.

The demurrer of Defendants California Department of Correction and Rehabilitation, F. Smith, and M. Lerma is SUSTAINED without leave to amend.

SO ORDERED this the _____ day of May, 2014.

______________________
RANDOLPH ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

MICHAEL EDWARD GOODALE, )
) Case Number MC024271
Plaintiffs, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
STATE OF CALIFORNIA, ) May 13, 2014
DEPARTMENT OF CORRECTIONS ) Dept. A-11
REHABILITATION, et al. ) Judge Randolph A. Rogers
)
Defendants. )
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. On August 28, 2013, the Plaintiff filed the present suit against Defendants. Plaintiff attempted service, which was not effectuated until January 2, 2014. Plaintiff requested an entry of default four (4) times prior to this, each being rejected for defective proof of service.

2. On January 13, 2014, Defendants filed a demurrer, which was sustained after a hearing on February 18, 2014, with leave to amend until March 4, 2014.

3. Plaintiff filed his First Amended Complaint on March 4, 2014, alleging common counts against all defendants, fraud, and intentional tort.

4. Defendant Aubrey Group, Inc. (“Aubrey”) filed its demurrer on April 10, 2014. Defendants California Department of Correction and Rehabilitation (“CDCR”), F. Smith (“Smith”), and M. Lerma (“Lerma”) (collectively “Defendants”) filed their demurrer on April 11, 2014.

5. Plaintiff filed his opposition to both demurrers on April 21, 2014.

6. Standard for ruling on demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Cal. Code Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339.

7. A general demurrer admits the truth of all factual, material allegations properly pleaded in the challenged pleading, regardless of possible difficulties of proof. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. 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. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

8. An amended complaint that omits harmful factual allegations from a previous complaint, whether verified or unverified, without an adequate explanation for the discrepancy is regarded as a sham pleading. A court ruling on a demurrer may take judicial notice of facts alleged in a prior complaint that reveal a defect in an amended complaint, and may disregard any inconsistent allegations in the amended complaint. State ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412; see Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-26.

9. Pursuant to Cal. Code Civ. Proc. §§ 430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2001) 31 Cal.4th 1074, 1082. The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. Id.

10. Common Count Allegation Against Aubrey – Plaintiff alleges that Aubrey unjustly acquired intellectual property and trade secrets belonging to Plaintiff and failed to comply with California Business and Professions code.

11. As a preliminary matter, the stated purpose of Business and Professions Code §22370 et seq. is to prohibit or restrict false and misleading advertising, onerous contract terms, harmful financial practices, and other unfair, dishonest, deceptive, destructive, unscrupulous, fraudulent, and discriminatory practices by which the public is injured. Cal Bus. & Prof. Code §22370(b). Section 22386 of the same Code provides that “[a]ny person who has been injured by a violation of this chapter by an invention developer, or by any false or fraudulent statement, representation, or omission of material fact by an invention developer, or by failure of an invention developer to make all disclosures required” may bring a civil action.

12. Plaintiff’s complaint never mentions Aubrey, except to name it as a defendant and alleging that it injured Plaintiff, for which he is entitled to $61,794,666,666.66. Plaintiff has alleged no facts that relate to Aubrey, much less stated any facts to support any cause of action against it. In opposition, Plaintiff contends that he has stated enough facts under Business and Professions codes §§22371, 22381, and 22386, arguing that Aubrey is liable because of Defendant parole agent Smith’s alleged actions. None of Smith’s alleged actions as they relate to Aubrey are alleged in the FAC, and there are no facts alleged to indicate how Aubrey has offended §22386.

13. Accordingly, Defendant Aubrey Group, Inc.’s demurrer is SUSTAINED with leave to Amend through June 6, 2013.

14. Government Claims Act – A public entity and public employees acting within the scope of their employment cannot be sued unless and until the plaintiff in question has complied with §945.4 of the Government Code. Section 945.4 states that “no suit for money or damages may be brought against a public entity on a cause of action . . . 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.” Cal. Gov. Code §945.4. Such a written claim must include the name and post office address of the claimant, the post office address where claimant desires notice be sent, the date, place, and other circumstances giving rise to the claim, a general description of indebtedness, obligation or loss so far as it may be known at the time of presentation of the claim, name or names of public employees causing the loss, and the amount claimed if its total is less than $10,000 as of the date of the presentation of the claim, or an indication whether it would be a limited civil case if the claimed amount is over $10,000. Cal. Gov. Code §910.

15. As already noted above, on demurer, all properly pled and alleged facts are accepted as true. However, contentions, deductions, or conclusions of fact are not. In his FAC, Plaintiff alleges that he has complied with the applicable claims statute by sending a letter of complaint directly to the public entity and is excused from compliance by reason of being on food stamps.

16. As a preliminary matter, being the recipient of food stamps only excuses a claimant from paying the statutory $25 filing fee; it does not exempt the requirement of making a valid or substantially compliant claim with the appropriate entity. Cal. Gov. Code §905.2(c)(1)(A). Therefore, Plaintiff’s contention that receiving Food Stamps excuses compliance with the Tort Claims Act is without merit.

17. In addition, Plaintiff alleges that he complied with the statutory requirements because “[a] letter of complaint was sent directly to the public entity with no response.” FAC at 2:9. Accepting for the moment that the alleged letter complied with Government Code §910, Plaintiff has still failed to allege facts that demonstrate it is in compliance with Government Code §915. Section 915 requires that claims against a state agency must be mailed or delivered to the Victim Compensation and Government Claims Board. Id. §915(b)(1) and (b)(2). This may be excused if the claim is “actually received at an office of the Victim Compensation and Government Claims Board.” Id. subd. (e)(2). Plaintiff’s FAC has failed to demonstrate compliance with §915.

18. Further, in opposition, Plaintiff attaches a copy of the “letter of complaint” as Exhibit A5 and A7. This letter, even had it been attached to the FAC, would be unavailing to Plaintiff because it does not comply with the requirements of §910. The letter does not provide the address of the claimant, it does not state where notices should be sent, it does not give the date of the incidents from which the claim arises, it does not state any claim of indebtedness or loss, and it gives no indication whatsoever of the potential liability that the public entity may be faced with. As such, the letter neither complied with the claims requirements, nor did it substantially comply as to be a “claim as presented.”

19. The attempted claim as presented in Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, is instructive. In the Del Real case, the Court of Appeal concluded that a letter failed to substantially comply with the claim requirement where:

“it [did] not indicate that [the author] is the claimant, nor does it provide her address. While it might be presumed that notices should be sent to the return address on the letterhead, the letter does not so indicate. It does provide a date and location of an accident, but it does not describe the nature of the accident, nor does it identify the persons involved in the accident. The letter id devoid of any description of injury or loss allegedly suffered, fails to indicate that anyone involved in the accident was a public employee and fails to state any amount claimed. Thus, it bears little or no resemblance to a government tort claim.” Del Real, supra, 95 Cal.App.4th at 769.

20. Similar to the Del Real case, Plaintiff’s letter gives no address, gives no dates as to any of the incidents complained about, makes no claims as to indebtedness or what injury he has suffered, except to say his “company has been exposed to the industry and [Plaintiff] being upset relapsed again.” Most importantly, it gives no indication as to what liability CDCR, Smith, or Lerma are subject to, or that Plaintiff even intended to file a claim. The closest Plaintiff ever comes is to demand a new parole agent and threaten to take this matter to Sacramento for review. This letter, similar to that presented in Del Real, simply failed to provide sufficient notice to CDCR or any of the Defendants that they were soon to be liable to a suit for money damages, and certainly gave them no indication that they would be liable to a civil unlimited jurisdiction suit for alleged damages in the billions of dollars.

21. Because Plaintiff has not shown compliance with Government Code §915 in the FAC, Plaintiff has not stated sufficient facts to sustain a cause of action against Defendants. In addition, Plaintiff’s letter attached in his opposition, though not related to the demurrer because it is not included in the FAC, by itself would not satisfy the requirements of either §910 or 915. Plaintiff, in amending, will need to provide or allege further facts to show compliance.

22. Accordingly, Defendants’ demurrer is SUSTAINED without leave to amend.

SO ORDERED AND ADJUDGED this the ______ day of May, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE