Farley vs. Hurlburt

In reviewing the propriety of the sustaining of a demurrer, the “court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]

And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379 [citing Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 967].). A court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v.

Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Government Claim

First, Defendant City argues that Plaintiff failed to comply with the Government Claims Act by failing to file a timely written claim prior to filing this lawsuit.

Gov. Code § 911.2 provides: “(a) A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.”

Plaintiff alleges the following in her Second Amended Complaint: “Plaintiff has complied with the California Government Claims Act. On October 30, 2024, Plaintiff presented a claim for damages to the City of Anaheim. The claim was submitted within one year of Plaintiff’s discovery of the full scope of Defendants' misconduct, as detailed in the Factual Allegations below, meeting the 1 year statute of limitations pursuant to Government Code § 911.2.” (SAC, ¶ 7). On November 26, 2024, the City of Anaheim issued a written denial of the claim. However, this denial was legally defective because it failed to include the mandatory warning language required by Government

Code §§ 911.8 and 913. Specifically, the City's notice did not advise Plaintiff of the six-month statute of limitations to file a court action or of the need to consult an attorney. (SAC, ¶ 8). Because the City’s denial letter was statutorily deficient, it failed to trigger the six-month statute of limitations under Government Code § 945.6(a)(1). (SAC, ¶ 9).

On December 12, 2022, Plaintiff reported housing violations to the City of Anaheim Code Enforcement Division, citing substandard and untenantable conditions in violation of state and local housing laws, including California Civil Code § 1941 and Health and Safety Code § 17920.3. (SAC, ¶ 16). Defendant Bianca Hurlburt, a Code Enforcement Officer for the City of Anaheim, was assigned to investigate Plaintiff’s complaint. (SAC, ¶ 18). On March 23, 2023, despite having direct knowledge of ongoing, un-remediated violations and having received no proof of repairs, Defendant Hurlburt prematurely and improperly closed the enforcement case. (SAC, ¶ 24).

Plaintiff also attached a copy of the email communications between her and Ms. Hulburt, which includes a 2/20/24 email from Plaintiff wherein Plaintiff states: “I did not hear back from you until 3/21/23 having received your last voicemail, and unaware you closed the case 3/23/23, I returned your call 4/4/23 and left a voicemail. I called again, 6/29/23 to inquire about the status of the case and requested it be reopened.” (SAC, Ex. F).

Finally, Plaintiff alleges that on October 3, 2023, “[a]fter learning she might have a right to the records despite Hurlburt's contrary statement, Plaintiff submitted a Public Records Act request to the City for the code enforcement file while she waited for the record on appeal to be prepared. The documents were received via email on October 20, 2023. ii. Plaintiff did not open or review the October 20, 2023, email at that time.” (SAC, ¶ 28 i, ii). She alleges: “Upon reviewing the documents on February 20, 2024, Plaintiff discovered for the first time that Defendant Hurlburt had made false statements in the official record to justify the premature closure of the case without any verification of remediation. It was on this date that Plaintiff had knowledge of facts sufficient to suspect that an injury had been suffered due to wrongdoing.” (SAC, ¶ 34).

A plaintiff “must allege facts demonstrating or excusing compliance with the claim presentation requirement.” (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1243; see also Nelson v. State of California (1982) 139 Cal.App.3d 72, 7 [“the

complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim”]).

Gov. Code § 911.3 provides:

(a) When a claim that is required by Section 911.2 to be presented not later than six months after accrual of the cause of action is presented after such time without the application provided in Section 911.4, the board or other person designated by it may, at any time within 45 days after the claim is presented, give written notice to the person presenting the claim that the claim was not filed timely and that it is being returned without further action. The notice shall be in substantially the following form: “The claim you presented to the (insert title of board or officer) on (indicate date) is being returned because it was not presented within six months after the event or occurrence as required by law.

See Sections 901 and 911.2 of the Government Code. Because the claim was not presented within the time allowed by law, no action was taken on the claim. Your only recourse at this time is to apply without delay to (name of public entity) for leave to present a late claim. See Sections 911.4 to 912.2, inclusive, and Section 946.6 of the Government Code. Under some circumstances, leave to present a late claim will be granted. See Section 911.6 of the Government Code.

You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.”

(b) Any defense as to the time limit for presenting a claim described in subdivision (a) is waived by failure to give the notice set forth in subdivision (a) within 45 days after the claim is presented, except that no notice need be given and no waiver shall result when the claim as presented fails to state either an address to which the person presenting the claim desires notices to be sent or an address of the claimant.

Gov. Code § 911.4, subd. (a) provides: “When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.”

First, Plaintiff alleges in her SAC that the statute of limitations is extended by two years because the City failed to give her the requisite notice under Section 911.3. This court previously rejected this contention in its ruling on the demurrer to the First Amended Complaint. (See 1/21/26 Order [ROA 121]).

This is particularly true given that “[f]iling a late-claim application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief petition.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779). “When the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under Government Code section 946.6.” (Id.)

Next, Plaintiff alleges in her SAC that her claim is not time barred pursuant to the delayed discovery rule.

“The accrual date for presenting a government tort claim is determined by the rules applicable to determining when any ordinary cause of action accrues. (§ 901.) That date may be postponed under the delayed discovery doctrine.” (S.M. v. Los Angeles Unified School Dist. (2010) 184 Cal.App.4th 712, 717.) “Under this doctrine, a cause of action does not accrue until the plaintiff discovers, or has reason to discover, the cause of action.” (Id.) Pursuant to the delayed discovery rule, however, “plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of information that would have been revealed by such an investigation.” (Fox v.

Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808). Furthermore, “[t]he Legislature, in codifying the discovery rule, has also required plaintiffs to pursue their claims diligently by making accrual of a cause of action contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause.” (Id. [emphasis in original]).

Plaintiff’s facts demonstrate that she was on notice of suspected wrongdoing at the very latest on October 20, 2023, when she received responsive records to her Public Records Act request (though her SAC suggests that she was aware that her matter has been closed in June of 2023).

If the court were to grant the latest date of October 20, 2023, and were to impose the one-year deadline rather than the six month deadline, Plaintiff’s claim would still be untimely, as she did not file her claim until October 30, 2024, which is more than one year pursuant to Gov. Code § 911.2. Plaintiff alleges that she did not open

the responsive documents until February of 2024 because she was busy with other litigation. However, this does not negate that she was on notice, as she had the documents in her possession, was required to conduct a reasonable investigation, and should have discovered that her alleged injury had a wrongful cause upon receiving the records. (Fox, supra, 35 Cal.4th at 808).

Accordingly, Plaintiff’s claims are barred due to her untimely claim. Because this is Defendant’s second demurrer and Plaintiff’s third version of her complaint, and because Plaintiff’s defect cannot be cured, the court sustains the demurrer without leave to amend.

Immunity

Defendant also alleges that even if Plaintiff’s claims were not time barred, each of her causes of action are barred by Gov. Code §§ 818.6 and 818.8.

Gov. Code § 818.6 provides:

“A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.”

As the court held in Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 504: “Construing the immunity of section 818.6 broadly to include the entire process of inspection and reporting (see Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 205 Cal.Rptr. 1) (Cochran), the Court of Appeal correctly held that section 818.6 immunizes the City from liability for failing, after an inspection, to take the additional step of recording with the county recorder the information so discovered.”

Plaintiff’s claims are based on the City’s failure to inspect her unit for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety, as well as the City’s failure to take additional steps afterward. (See for example, SAC, ¶¶ 1, 2, 16, 17, 52). Plaintiff has not established that this alleged conduct falls outside of the immunity afforded by Gov. Code § 818.6.

Furthermore, Plaintiff’s two fraud claims are subject to the immunity set forth in Gov. Code § 818.8, which provides: “A public entity is

not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.”

Plaintiff’s two causes of action for constructive fraud and actual fraud are based on allegedly fraudulent representations and fraudulent concealment/omissions by Ms. Hulburt, for which the City cannot be liable. (See SAC, ¶¶ 80, 87).

Accordingly, the demurrer is also sustained on this basis.

Defendant shall provide notice.

3 Tamadon vs. Choe TENTATIVE RULING:

Demurrer

Defendant Cliff Wagner demurs to the First Amended Complaint of Plaintiffs Gitty Tamadon, Ray Reza Tamadon, Matthew Greenberger, Eileen Hishino, Jun Hoshino, Jennie Ni, Heather Oglesby, Gavin Oglesby, Raj Pranav, and Raghav Sood. For the following reasons, the demurrer is SUSTAINED with 30 days leave to amend.

Defendant Wagner demurs to the 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 19th, 20th, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29th, 30th, 32nd, 33rd, 34th, 35th, 36th, 37th, 38th, 39th, 40th, 41st, 42nd, 43rd, 44th, 45th, 47th, 48th, 50th causes of action in Plaintiffs’ FAC, challenging the sufficiency of each claim.

The court record shows Plaintiffs were served with all moving papers and notice of this continued hearing. (See ROA # 1577, 1579, 1581, 1583.) Plaintiffs chose not to file any opposition to the demurrer.

The failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [deeming the plaintiffs to have abandoned an issue where the plaintiffs did not oppose the demurrer on that issue and submitted no argument on the issue in their appellate briefs].) In addition, it is axiomatic that the failure to challenge a contention in a brief results in the concession of that argument. (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [finding plaintiffs conceded an issue by failing to argue the contrary]; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [holding “failure to address the