Case Number: BC720691 Hearing Date: November 28, 2018 Dept: 4

MOVING PARTY: Defendant, City of Los Angeles

RESPONDING PARTY: None

The court has considered the moving papers.

BACKGROUND

Plaintiff Ralph Gambina (“Plaintiff”) filed a complaint on September 7, 2018, alleging two causes of action for general negligence and intentional tort. On August 22, 2018, Defendant City of Los Angeles (“Defendant”) filed a demurrer to the complaint. No opposition or reply was submitted.

Plaintiff’s complaint arises from his arrest and the death subsequent death of his son. On March 17, 2017, Plaintiff was at his premises, when he was tased and taken into custody by LAPD. Immediately following Plaintiff’s arrest, his son was allowed to enter Plaintiff’s trailer, which contained prescription opioid pain killers and sleeping pills. Plaintiff’s son overdosed and died from the medication. Subsequent to his incarceration, on March 25, 2017, Plaintiff learned that his son died. Plaintiff alleges LAPD had a duty to secure Plaintiff’s residence.

Defendant demurs on the grounds that the Complaint is time barred by the Government Claims Act. Defendant asserts that judicially noticeable documents establish that Plaintiff failed to file an action within 6 months of the denial of Plaintiff’s government claim.

LEGAL STANDARD

Meet and Confer Requirement

CCP section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, 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.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (CCP § 430.41(a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (CCP § 430.41(a).) A similar meet and confer process and declaration is required for motions to strike. (See CCP § 435.5.)

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.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

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 Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “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, supra, 147 Cal.App.4th at 747.)

A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

DISCUSSION

Meet and Confer Requirement

Counsel’s declaration satisfies CCP sections 430.41(a)(3)(B)’s declaration requirements. (Mcaleer Decl. ¶¶ 2-5.)

Request for Judicial Notice

Defendant requests judicial notice of the claim for damages filed by Plaintiff on September 15, 2018, and a rejection letter dated October 24, 2017. (RJN Exs. 1-2.) Defendant’s requests are GRANTED. (Evid. Code § 452(c), (g), (h); see Fowler v. Howell (1996) 42 Cal.App.4th 1746; see also Commercial Union Assurance Company v. City of San Jose (1982) 127 Cal.App.3d 730, 740; Pan Pacific Properties, Inc. v. County of Santa Cruz (1978) 81 Cal.App.3d 244, 255 fn. 2; Harney v. State of California (1963) 217 Cal.App.2d 77, 86.)

Demurrer Analysis

Under the Government Claims Act, the general rule is that any party with a claim for money or damages against a public entity must first file claim directly with that entity; only if that claim is denied or rejected may the claimant file a lawsuit. (Gov. Code §§ 905, 945.4; City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894.) This provides the public entity with an opportunity to evaluate the claim and decide as to whether it will pay on the claim. (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474.) Failure to allege facts in the complaint demonstrating compliance with the pre-litigation governmental claims presentation requirements subjects the complaint to a general demurrer. (State of Calif. v. Superior Court (2004) 32 Cal.4th 1234, 1239; see also V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509 [affirming trial court decision to sustain demurrer without leave to amend on the ground that V.C.’s failure to timely comply with the requirements of the Tort Claims Act barred her action].) A plaintiff must comply with the claim presentation requirements even if the entity has actual knowledge of the circumstances surrounding the claim. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455.)

Government Code section 911.2 requires that a claim for damages be filed “not later than six months after the accrual of the cause of action.” Upon presentation of the claim, the entity may: 1) approve the claim, (2) reject the claim, (3) give notice the claim is insufficient, or (4) do nothing. (Gov. Code § 912.6.) If the public entity sends proper written notice of the rejection, plaintiff has six months thereafter to file suit against the entity. (Gov. Code § 945.6(a)(1); see Gov. Code §§ 912.6, 912.8.)

According to the judicially noticed documents, Plaintiff submitted a claim with Defendant on September 15, 2017, which was rejected on October 24, 2018. (RJN Exs. 1-2.) Thus, Plaintiff’s claim should have been brought by April 24, 2018. Plaintiff offers no explanation as to his failure to file this suit within the 6-month time limit.

Accordingly, Defendant’s demurrer is SUSTAINED. Leave to amend will only be granted if Plaintiff provides sufficient facts that demonstrate a reasonable probability of successful amendment given the deficiencies discussed above. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 347.)

The court orders:

Defendant’s demurrer is SUSTAINED without leave to amend.

The moving party is ordered to provide notice of this order and file proof of service of such.

IT IS SO ORDERED.

DATED: November 28, 2018

___________________________

Christopher K. Lui
Judge of the Superior Court