2017-00208789-CU-PA

Katherine Madsen vs. Peter Daniel Taste

Nature of Proceeding: Hearing on Demurrer to 1st Amended Complaint

Filed By: Villa, Kayla C.

Defendant Fair Oaks Water District and Peter Daniel Taste’s (collectively, “Defendants”) demurrer to Plaintiffs First Amended Complaint (“FAC”) is UNOPPOSED

and is SUSTAINED without leave to amend.

Defendants’ request for judicial notice of documents filed in this Court and the Court’s minute order sustaining with leave to amend Defendants’ demurrer to Plaintiffs’ Complaint is granted.

In this personal injury action plaintiffs Katherine Madsen, Karis Madsen (a minor), and Charlotte Madsen (a minor) allege causes of action for motor vehicle negligence and general negligence in connection with a motor vehicle accident that occurred on February 22, 2016.

Previously, on January 12, 2018, the Court sustained with leave to amend Defendants’ demurrer to Plaintiffs’ complaint on the grounds that Plaintiffs failed to allege compliance with the Government Claims Act (Gov’t Code §§ 911.2, 945.4) and failed to allege a statutory basis for liability against public entity defendants. Plaintiffs filed their FAC on January 19, 2018. That demurrer was also unopposed.

Defendants now demur to the FAC on the grounds that Plaintiffs Karis Madsen and Charlotte Madsen again fail to allege compliance with the Government Claims Act, and Plaintiff Katherine Madsen is time barred from pursuing this action. Defendants also contend Plaintiffs continue to fail to allege a statutory basis for liability.

Pursuant to the Government Claims Act, a claimant must present a civil complaint for money damages to the Government Claims Board before filing a lawsuit against a public entity or public employee. (Gov’t Code §§ 810.2, 811.2, 811.4, 911.2, 945.4, and 950.2.) Indeed, Government Code section 905 requires that “all claims for money or damages against local public entities” be presented to the responsible public entity before a lawsuit is filed, with exceptions inapplicable here. Failure to present a timely claim bars suit against the entity. (Gov. Code, § 945.4.) A claim relating to a cause of action for death or injury to a person or to personal property or growing crops must be presented to the public entity no later than six months after the accrual of the cause of action, and a claim relating to any other cause of action must be presented no later than one year after the accrual of the cause of action. (Govt. Code §911.2(a).) Failure to allege compliance with the presentation requirements of the Act and that the claim has been rejected is fatal to a cause of action. (State v. Superior Court (2004) 32 Cal.4th 1234, 1240-1241.)

Plaintiffs’ FAC alleges only Katherine Masden submitted a Government Claim on March 18, 2016, relating to her injuries. (FAC ¶ 7, Ex. C to Declaration of Ellen Adelsberger filed in support of FAC (“Adelsberger Decl.”).) The FAC is void of any allegations that either Plaintiff Karis Masden or Charlotte Masden filed a Government Claim. Accordingly, Plaintiffs Karis Masden and Charlotte Masden continue to fail to allege compliance with the Government Claims Act. The demurrer on this ground is sustained. The Court construes Plaintiffs’ failure to oppose the demurrer as a concession on the merits.

As to Plaintiff Katherine Masden’s Government Claim, on May 16, 2016, Fair Oaks Water District issued its Notice of Rejection. (FAC ¶ 8, Ex. D to Adelsberger Decl.) Plaintiffs’ Complaint was not filed until March 3, 2017. The court may take judicial notice of this date. Defendants contend Ms. Masden is now time barred from bringing her claims as her Complaint was filed beyond the six-month limitation set forth in Government Code section 945.6.

Under Government Code section 945.6, subdivision (a), a civil action must be filed within six months after service of rejection of any claim. “With rare exceptions, courts have held that the six-month statute of limitations is inviolate. ‘Where the notice of rejection complies with section 913 the six-month statute of limitations cannot be extended by provisions outside the Tort Claims Act.'” (Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1200.) Attorney mistake, inadvertence, or neglect which would entitle a party to relief from default does not apply to a plaintiff who fails to comply with the six month statute. (Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th 927, 932-934.)

The demurrer is sustained on this ground. The Court construes Plaintiffs’ failure to oppose the demurrer as a concession on the merits.

In light of the foregoing, the Court need not reach the other arguments as to the alleged failure to allege a statutory basis for liability. (See, e.g. Gov. Code 950.2.)The claim-filing requirement is not merely procedural, but is instead a condition precedent to maintaining a cause of action and is therefore an element of a plaintiff’s cause of action. (K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1233.) Any action against a public employee is barred by failure to comply with this requirement.

Since Plaintiffs have failed to oppose the demurrer or provide any facts that would cure the defects, no further leave to amend is granted. A court may sustain a demurrer with or without leave to amend. (Code Civ. Proc. 472a(c).) Leave to amend a defective complaint should be denied where no liability exists under substantive law. (Rotolo v San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.) A demurrer must be sustained without leave to amend absent a showing by plaintiff that a reasonable possibility exists that the defect can be cured by amendment. (Blank v Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proving such reasonable possibility rests squarely on the plaintiff. (Torres v City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1041.) Plaintiffs have not met that burden.

Defendants’ demurrer is SUSTAINED without leave to amend.

Defendants’ counsel shall prepare a formal order and judgment of dismissal pursuant to CRC Rule 3.1312.