Case Number: BC537265 Hearing Date: June 16, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

KELLY L. JOHNSON,
Plaintiff(s),
vs.

LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, ET AL.,

Defendant(s).

CASE NO: BC537265

[TENTATIVE] ORDER SUSTAINING DEMURRER WITH LEAVE TO AMEND

Dept. 92
1:30 p.m. — #41
June 16, 2014

Defendant, Los Angeles County Metropolitan Transportation Authority’s Demurrer is Sustained With Leave to Amend. Plaintiff is ordered to file an amended complaint within ten days. Defendant is ordered to file a responsive pleading within the statutory time thereafter.

1. Background Facts
Plaintiff, Kelly L. Johnson filed this action against Defendant, Los Angeles County Metropolitan Transportation Authority (“MTA”) for damages arising out of a bicycle v. bus accident that occurred on 5/12/13. Plaintiff filed her complaint on 2/25/14.

2. Demurrer
MTA demurs to the complaint, contending Plaintiff did not timely file suit after his government tort claim was rejected. The issues presented by way of this motion are the following:
• Can a plaintiff summarily allege compliance with the Government Tort Claims filing requirements in her complaint?
• Can the Court take judicial notice of the documents submitted by MTA with its demurrer?
• If the Court can take judicial notice of the documents, do those documents conclusively establish lack of compliance with the tort claim requirements?

a. Conclusory Pleading of Satisfaction of Tort Claim Requirements
The threshold issue before the Court is whether a plaintiff, when suing a governmental entity, can summarily allege compliance with the Tort Claims Act in her complaint. Plaintiff’s complaint herein is a judicial council form complaint. Plaintiff checked box 9, which indicates she was required to comply with a claims statute, and did comply with that statute. The parties discuss the holding of State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1245 in this regard. The Court has read and considered Bodde. The Supreme Court therein, several times, indicates that a plaintiff suing a governmental entity must allege “facts” to establish compliance with the tort claims act. See, for example, page 1243, wherein the Court states, “In light of this overwhelming case law and history, we conclude that a plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement.” See also page 1245, wherein the Court states, “Finally, requiring plaintiffs to allege facts sufficient to demonstrate or excuse compliance does not deprive them of their due process rights or unfairly bar just claims.”

Thus, the Court finds that Plaintiff’s conclusory pleading that she complied with the tort claims filing requirements is insufficient. The demurrer must be sustained.

b. Judicial Notice
In determining whether or not to grant leave to amend, the Court must determine whether the documents submitted by Defendant in connection with its demurrer conclusively establish that leave to amend would be futile. The first step in making that decision requires a determination of whether or not the documents submitted with the demurrer are subject to judicial notice.

Defendant submitted four documents with its RJN – Plaintiff’s claim for damages, filed on 6/11/13, Defendant’s rejection of that claim, mailed on 7/02/13, Defendant’s rejection of the claim, mailed on 7/02/13, with the proof of service of same, and a copy of Plaintiff’s complaint, dated 2/25/14.

The problem with the request for judicial notice is that the documents do not speak for themselves. Indeed, in apparent recognition of this problem, Defendant submitted the Declarations of Brigitte Carroll-Anderson and Frank Moran, employees of Defendant’s claims adjuster, to support the request. The Court cannot consider declarations when ruling on a demurrer. 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. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.

The declarations of Carroll-Anderson and Moran are necessary in order to explain the documents submitted with the RJN. The declarations, however, cannot be considered. The Court therefore finds the RJN does not establish, as a matter of law, that the defects in the complaint cannot be cured. Leave to amend is therefore granted.

The Court need not reach the final issue (whether the documents show that leave to amend must be denied), because the Court cannot consider the declarations submitted. Plaintiff is ordered to file an amended complaint within ten days, which sets forth facts establishing compliance with the Tort Claims Act.

Dated this 16th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court