Case Number: BC669592 Hearing Date: May 31, 2018 Dept: 7

[TENTATIVE] ORDER RE: MOVING DEFENDANTS’ DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT

I. BACKGROUND

On July 21, 2017, plaintiffs M.T., a minor by his successors in interest Mark Tillinghast and Svetlana Reznikova (“Decedent”), Mark Tillinghast (“Tillinghast”) and Svetlana Reznikova (“Reznikova”) (collectively “Plaintiffs”) filed a complaint against defendant Los Angeles Unified School District (“LAUSD”), Palms Middle School (“Palms”), Derek Moriuchi (“Moriuchi”), John Mullaney (“Mullaney”), Amanda Millet (“Millet”), Julio Mendoza (“Mendoza”), Christopher Smith (“Smith”) and Does 1 to 20. Plaintiffs eventually filed a first amended complaint.

On March 12, 2018, the Court partially sustained and overruled the demurrer to the first amended complaint by LAUSD, Palms, Moriuchi, Mullaney, Millet and Mendoza (collectively “Moving Defendants”). On March 29, 2018, Plaintiffs filed a second amended complaint (“SAC”).

The SAC alleges causes of action for: (1) wrongful death based upon Government Code sections 820, 815.2 and 815.6 (against all defendants except Does 11 to 20); (2) wrongful death based upon negligence, Civil Code sections 1714 (against Does 11 to 20); and (3) wrongful death based upon failure to timely provide or summon medical care pursuant to Government Code section 845.6 (against LAUSD and Palms).

The SAC in relevant part alleges the following: (1) Tillinghast and Reznikova are the parents of Decedent who was a thirteen-year-old student at Palms. (SAC ¶¶ 1 and 24); (2) On April 25, 2016, Decedent suffered sudden cardiac arrest while participating in a physical education class at Palms and died on April 27, 2016 after being hospitalized from the cardiac arrest. (Id. ¶ 33-36 and 48); (3) The defendants failed to adequately supervise and render emergency care to MT by failing to properly use an automated external defibrillator (“AED”) that was located on the school premises. (Id. ¶¶ 36-40, 43, 46 and 49); (4) A timely government claim was submitted to LAUSD and the claim was rejected on July 18, 2016. (Id. ¶ 10); and (5) Through prior interactions with Plaintiffs and Decedent, the defendants knew that Reznikova was Decedent’s mother and that Tillinghast intended to include Reznikova in the government claim. (Id. ¶¶ 10-31.)

On May 3, 2018, Moving Defendants demurred to the first and third causes of action of the SAC on the ground that Reznikova lacks standing to allege such claims. On May 17, 2018, Plaintiffs filed an opposition.

II. LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at 747.)

III. DISCUSSION

a. Meet and Confer Requirement

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP § 430.41.) The Court notes that the Moving Defendants have fulfilled the meet and confer requirement prior to filing this demurrer. (See Declaration of Jacqueline M. Sparagna.)

b. Sham Pleading

Moving Defendants contend that the Court should reject the SAC as a sham pleading because it alleges inconsistent facts from those stated in Plaintiff’s opposition to the demurrer to the FAC. Specifically, Moving Defendants argue that the allegation in the SAC that Tillinghast intended to include Reznikova in his government claim is inconsistent with Plaintiffs’ opposition to the demurrer to the FAC in which it was stated that Tillinghast informed LAUSD that Reznikova did not make a claim because of her protracted post-traumatic stress disorder, not because she was relying on her husband’s claim.

The opposition argues that the sham pleading only applies where a plaintiff alleged facts in an earlier complaint that are now contradicted in a subsequently amended complaint. Thus, the opposition argues that the sham pleading doctrine does not apply here because (1) Plaintiffs did not allege in a prior complaint any facts relating to why Reznikova did not file a tort claim and (2) the Moving Defendants’ reliance on the statement that Reznikova had protracted post-traumatic stress disorder is not contradicted by any of the allegations in the SAC.

Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425–26.) If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations. (Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151.)

Here, the Court finds that the SAC and the FAC are not so inconsistent that the SAC may be properly deemed to be a sham pleading. The purported inconsistencies that Moving Defendants attempt to establish are between the SAC and an opposition that the Plaintiffs filed to the demurrer to the FAC. Thus, the sham pleading doctrine does not apply since the inconsistencies are not between an amended complaint and a previous complaint. However, even if it was alleged in the FAC that LAUSD was informed that Reznikova did not file a claim for damages because of a stress disorder syndrome, this statement is not contradicted by the allegation that Tillinghast intended to include Reznikova in the claim for damages. The new allegations that LAUSD was aware of the relationship between Reznikova and Decedent and that LAUSD knew that Tillinghast intended to include Reznikova in the government claim are not so contradictory or inconsistent from the allegations in the FAC or even the statements made in the opposition to the demurrer to the FAC, such that they would render the SAC a sham pleading. Rather, these allegations are made to support the argument that Reznikova was intended to be included in government claim.

Thus, the demurrer based on the sham pleading doctrine is OVERRULED.

c. Failure to Comply with Government Claims Act by Reznikova

The Moving Defendants argue that Reznikova lacks standing to assert a cause of action because Reznikova failed to file a government claim for damages and because she is not listed as a claimant in Tillinghast’s government claim. The opposition claims that (1) factual questions, such as whether Tillinghast intended to include Reznikova in the claim for damages or whether LAUSD was on notice of Tillinghast’s intent to include Reznikova in the claim cannot be resolved on a demurrer and (2) the Moving Defendants waived their objection to Reznikova’s standing to sue.

LAUSD and Palms are public entities. (See Government Code § 811.2.) In addition, since Moriuchi, Mullaney, Millet and Mendoza are being sued for failing to properly render aid to MT as employees of Palms and LAUSD (SAC ¶¶ 2-9), they are being sued in the capacity of their employment, and thus, they are public employees. (Government Code §§ 810.2 and 811.4.)

An action for money or damages against a public entity may not proceed unless a written claim has first been presented to the governmental entity and the claim either has been granted or rejected. (Gov’t Code, §§ 905, 945.4.) A plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement. (State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1243.) Otherwise, his/her complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action. (Id.)

The Court in its order for the demurrer to the FAC found that the government claim was filed solely by Tillinghast because that the claim for damages does not refer to Reznikova in any way. (See 3/12/18 Order on Demurrer to FAC, 6:20-24.) Thus, the Court found that the FAC failed to allege that Reznikova complied with the Government Claim presentation requirement. (Id. 7:5-8.) However, now, Plaintiffs are effectively arguing that the allegations in the SAC are sufficient to establish that Reznikova is excused from complying with the claim presentation requirement because LAUSD was aware that Tillinghast intended to include Reznikova in the claim and thus the purpose of the claim presentation requirement was accomplished.

Here, the Court finds that the SAC fails to allege sufficient facts to state a cause of action on behalf of Reznikova because she failed to comply with the claim presentation requirement and has failed to allege sufficient facts to establish an excuse from compliance.

The principal question here is whether the SAC alleges sufficient facts to establish that the defendants were afforded sufficient information regarding Tillinghast and Reznikova such that they were able to adequately investigate the claims and to settle the matter, if appropriate, without the expense of litigation. (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 797.) The relevant allegations in the SAC can be broken into two categories: (1) Reznikova’s interactions with the defendants; and (2) the examination of Tillinghast.

i. Allegations Regarding Reznikova’s Interactions with LAUSD

As to the first set of allegations, the SAC alleges that through prior interactions with Plaintiffs and Decedent, the defendants knew that Reznikova was Decedent’s mother and that Tillinghast intended to include Reznikova in the government claim. (SAC ¶¶ 10-31.) Specifically, the SAC alleges that Reznikova was highly involved in Decedent’s school activities including being the primary parent involved in such activities. (Id. ¶¶ 13 and 25.) The SAC further alleges (1) that Reznikova was listed in LAUSD school and business records as Decedent’s mother and emergency contact, (2) that the defendants were aware of Reznikova’s involvement through regular contact she had with LAUDS’s employees, and (3) after Decedent was hospitalized, LAUSD employees visited Decedent and Plaintiffs at the hospital where the employees were informed that Reznikova was Decedent’s mother and that the defendants had a duty to protect her child. (Id. ¶¶ 26-29.)

The Court finds that such allegations are insufficient to establish that Reznikova is excused from filing her own claim for damages. The Court notes that Petersen v. City of Vallejo, 259 Cal.App.2d 757 reached a similar result. There the plaintiff’s parents were fatally injured in an automobile accident. (Id. at 763.) Before the mother died she filed on her own behalf a claim against the municipality for her own injuries and for the wrongful death of her husband. (Id.) No claim was filed by plaintiff within the statutory period. (Id.) The plaintiff made essentially the same argument as Reznikova is making here, that the filing by the mother was implicitly on behalf of all heirs who might be entitled to share in any eventual recovery and was sufficient so as to allow the defendant public entities to fully exploit investigation and settlement of the claim. (Petersen, 259 Cal.App.2d at 766.) The Court of Appeal noted that it is generally recognized that the mere fact the governmental entity has some notice or knowledge of the accident and possible claim, will not excuse failure of the claimant to file a timely claim as required by the statute. (Id.) Thus, the Court of Appeal held that plaintiff was required to file a claim for wrongful death on her own behalf and the mere fact that the municipality had knowledge of the accident and possibility of other claimants did not excuse their failure to file their claims. (Id. at 766-768.)

Here, the mere fact that LAUSD knew that Reznikova was Decedent’s mother and a potential claimant is insufficient to place LAUSD on notice as is required by the claim presentation statute. Thus, Reznikova lacks standing to bring a claim as she failed to comply with the claim presentation requirement.

This finding is further supported by the holding in Lacy v. City of Monrovia (1974) 44 Cal.App.3d 152, 157 which cites to Peterson. Lacy involved an action against a city by a husband and wife and their minor children for damages arising out of the entry of their home by city police. (Lacy 44 Cal.App.3d at 155-156.) The Court of Appeal found that while the claim for damages only named the husband, since the claim alleged damages to all members of the family in varying amounts, the claim was proper since it placed the defendant public entity on the notice of the occurrence giving rise to the claim but also had the names of all persons seeking damages and the amount of damages claimed. (Lacy,44 Cal.App.3d 152, 157 [emphasis added.].) The Lacy court noted that the principal purpose of the claim statute which is to provide sufficient notice to the public entity to investigate the claims and determine the facts, was accomplished by the husband’s claim. (Lacy v. City of Monrovia (1974) 44 Cal.App.3d 152, 155.) The emphasis was on the scope and detail of the information on the claim provided the public entity.

Unlike the claim information in Lacy, here, the claim for damages that was submitted by Tillinghast made no reference to Reznikova at all. Thus, the claim for damages failed to adequately provide sufficient notice to LAUSD as to the nature and scope of Reznikova’s claims.

ii. Allegations Regarding the Examination of Tillinghast

In its previous ruling, the Court denied Plaintiffs’ request to take judicial notice of the truth of the matter asserted in Tillinghast’s examination under oath because such matter was reasonably disputable. (See 3/12/18 Order on Demurrer to FAC, 3:24-4:3.) In amending the FAC, the SAC includes portions of the examination. (See SAC ¶¶ 16-23.) Moving Defendants argue that the examination of Tillinghast is irrelevant since it was taken after the six-month limitation period to file a claim for damages expired. Plaintiff does not contest that the examination occurred after the six-month period, but rather argues that the examination was performed before the one year limitations period to file a late claim expired.

The Court reiterates that the purpose of the claim statutes is to provide sufficient information to enable the entity to adequately investigate claims and to settle, if appropriate, without the expense of litigation, meaning that the statutory requirements have not been met by the person who has not filed a claim. The doctrine of substantial compliance (which applies only when there is a defect in form but the statutory requirements have otherwise been met) does not apply here. (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 797.)

The Court also notes that a public entity must act on a claim for damages within 45 days after the claim has been presented or if the public entity fails or refuses to act on a claim within the 45 days, the claim shall be deemed to have been rejected by the board on the last day of the period within which the public entity was required to act upon the claim unless otherwise extended by an agreement. (See Gov. Code 912.4.) Here, the claim for damages was submitted to LAUSD on July 18, 2016 and it was never acted upon. (SAC ¶ 10.) Thus, the claim was deemed rejected by operation of law on September 1, 2016 pursuant to Government Code section 912.4. However, the examination of Tillinghast did not occur until January 24, 2017. (SAC ¶ 14.) Thus, Plaintiffs reliance on this examination is misguided since LAUSD was required to have acted upon the claim for damages months before the examination. Thus, any information that LAUSD received during that examination was no longer relevant for the purpose of determining whether Tillinghast’s claim for damages was to be rejected or settled.

The Court notes that the examination of Tillinghast occurred before the one year statute of limitations period expired for a claimant to file an application to present a late claim pursuant to Government Code section 911.4. However, while this information may be relevant for the purpose of filing an application to file a late claim, it is otherwise irrelevant.

iii. Waiver of Objection to Reznikova’s Standing

The Court notes that in its previous order, the Court rejected Plaintiff’s argument that the Moving Defendants waived their objection to Reznikova’s standing to sue. The Court found that the failure to include the name of a second claimant (Reznikova) was not the sort of defect of which required LAUSD to notify Plaintiffs. (See 3/12/18 Order on Demurrer to FAC, 7:10-15.) Here, Plaintiffs assert that since the SAC alleges that LAUSD knew that Reznikova was Decedent’s mother and that she was intended to be a claimant, Moving Defendants waived any objection to Reznikova’s standing by failing to notify Tillinghast that the claim should have included Reznikova.

As noted before, the purpose of the claim statutes is to provide sufficient information to enable the entity to adequately investigate claims and to settle, if appropriate, without the expense of litigation. (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 797.)

Government Code § 911.2 requires a claimant to present a claim to the public entity within a specified time after accrual of the cause of action. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 705.) This notification allows the public entity an opportunity to determine expeditiously the claim’s timeliness and sufficiency. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 706.) If the notice is untimely or lacks any of the information required by Government Code §§ 910 and 910.2, the public entity may require the claimant to justify the delay or supply the missing data. (Id.) If the public entity fails to require the claimant to cure such defects, then it waives certain defenses which are otherwise available to challenge a lawsuit based upon the claim as provided by Government Code §§ 910.8, 911 and 911.3. (Id.)

Government § 910 provides that a claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: (a) The name and post office address of the claimant.… Government § 910.2 provides that the claim shall be signed by the claimant or by some person on his behalf….

Here, as analyzed before, the mere fact that LAUSD had knowledge of Decedent’s incident and the possibility that Reznikova was a potential claimant does not excuse Reznikova’s failure to file a claim for damages. (See Petersen, 259 Cal.App.2d at 766-768.) Furthermore, as analyzed in the Court’s previous order, while the claim for damages does not reference Reznikova, it includes Tillinghast’s name, thus, the claim is not defective for failure to name a claimant. Both Peterson and Lacy stand for the proposition that the actual claim for damages is what places a public entity on notice such that it can determine how to proceed. Here, the claim for damages is not defective in any way noted in Government § 910, thus, LAUSD was not required to notify Tillinghast of the fact that Reznikova’s name did not appear on the claim for damages.

iv. Additional Arguments

The Court notes that the Court of Appeal in Peterson also rejected the very same argument that Plaintiffs assert here regarding the one action rule. The Peterson court found that the plaintiff could not rely upon the claim of her mother on the theory that there can be only one action, and therefore one claim for wrongful death. (Id. at 766.) The Court of Appeal reasoned that:

Section 377 of the Code of Civil Procedure [now section 377.60 regarding wrongful death] is a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action. Otherwise, its provisions could not be waived. Although recovery under section 377 is in the form of a ‘lump sum,’ the amount is determined in accordance with the various heirs’ separate interests in the deceased’s life and the loss suffered by each by reason of the death, and no recovery can be had by any heir who did not sustain a loss. Accordingly, each heir should be regarded as having a personal and separate cause of action.’

(Petersen, 259 Cal.App.2d at 766–767 [internal citations omitted and emphasis added.].)

For these same reasons, Plaintiffs’ argument based on the one action rule is rejected.

Additionally, the Court notes that Plaintiffs’ effectively contend that the defendants took advantage of Tillinghast by (1) waiting until after the six month claim filing deadline to take his examination, and (2) failing to inform Tillinghast that all wrongful death heirs must be joined in any claim or lawsuit because of the one action rule despite knowing that he was without counsel. Plaintiffs argue that had Tillinghast been made aware of the need to join Reznikova in the claim, he would have promptly and timely applied for a late claim to name Reznikova. However, Plaintiffs cite no authority which places such a duty or requirement on a public entity. The only case cited by Plaintiffs with regard to this issue is Lacy for the proposition that the claim statute is not intended to be a trap for the unwary. However, Lacy does not provide a timeline for when a public entity may perform a deposition or examination and Lacy does not hold that a public entity has a duty to inform a plaintiff of requirements such as joining all heirs in a wrongful death action.

V. CONCLUSION

Accordingly, the Court SUSTAINS the demurrer to the first and third causes of action as to Reznikova without leave to amend.

Moving Party is ordered to give notice.