THOMAS vs KUPPINGER, et al.

23CV006712: THOMAS vs KUPPINGER, et al. 04/19/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 53

list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

NOTICE:

Oral Argument will take place on Friday, May 10, 2024, at 10:00 a.m. in Department 31. Appearances are required at the hearing so that Plaintiff need not request oral argument.

The clerk shall fax a copy of this tentative ruling to the litigation coordinator. The litigation coordinator shall provide the tentative ruling to Plaintiff Edward Thomas within 48 hours.

The litigation coordinator is directed to have Plaintiff Edward Thomas available at oral argument on Friday, May 10, 2024, at 10:00 a.m. Appearance will be by ZOOM. Department 31’s Zoom ID is: 16083459993. To appear on Zoom by phone, call (833) 568-8864 and enter 1608345993#.

Appearance is required.

TENTATIVE RULING:

Defendants D. Anderson, D. Heinkel, J. Peterson, T. Beeby, W. Porter, P. Kuppinger, J. Stigelmayer, C. Hogan, S. Ramirez, J. Lynch, and K. Porter (“Defendants”) demurrer to Pro Per Plaintiff Edward Thomas’ complaint is SUSTAINED with leave to amend.

The Court signed an order to file new litigation by vexatious litigant on July 20, 2023.

Background

In his complaint, Plaintiff appears to set forth causes of action for negligence and intentional tort based on allegations that on December 22, 2021, while Plaintiff was incarcerated, Defendants misappropriated and/or failed to properly document Plaintiff’s personal property, including but not limited to packaged food, hygiene items, clothing, electronics, and religious items, in connection with Plaintiff’s transfer to another facility.

Defendants demur to complaint on the grounds that (1) Plaintiff’s claims are barred for

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006712: THOMAS vs KUPPINGER, et al. 04/19/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 53

failure to file a timely government claim, (2) Defendants are statutorily immune from liability, (3) Plaintiff failed to allege sufficient facts to state a negligence claim against defendants, (4) Plaintiff failed to allege sufficient facts to state an intentional tort claim against defendants, and (5) the complaint is uncertain as to any other causes of action.

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.)

A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. §452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v.

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111- 1112.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal.3d at p. 318; William S.

Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1616, fn. 2.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v.

Anderson Union High School Dist. (1996) 50 Cal.App.4th 726.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006712: THOMAS vs KUPPINGER, et al. 04/19/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 53

Government Tort Claim

Defendants first argue that Plaintiff failed to comply with the Tort Claims Act. They are correct. Generally, no suit for money or damages may be brought against a public entity or public employee until a written claim has been presented to the entity and either acted upon or deemed rejected. (Gov. Code §§ 945.4, 950.2.) 'Compliance with the claims statute is mandatory, and failure to file a claim is fatal to the cause of action.' (Pacific Tel. & Tel. Co. v. Cnty. of Riverside (1980) 106 Cal.App.3d 183, 188.) Compliance with the Tort Claims Act is an element of a cause of action for damages against a public entity or official. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1244.)

Plaintiffs bringing suit against a public entity for money must present the claim within six months after the cause of action accrues. (Gov. Code §§ 901, 911.2, 945.4.) 'Timely claim presentation is not merely a procedural requirement, but rather, a condition precedent to a plaintiff's maintaining an action against a defendant, and thus, an element of the plaintiff's cause of action.' (K.J. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1238.) The Act requires the timely presentation of a written claim for money or damages directly to a public entity, and the rejection of that claim, as a condition precedent to a tort action against either the public entity or an individual public employee acting within the scope of his or her employment. (Gov.

Code §§ 911.2, 945.4, 950.2; State of California, supra, 32 Cal.4th at p. 1239.) Failure to plead facts showing compliance with the Act or an excuse for noncompliance subjects the complaint to demurrer. (Id. at p. 1245.)

Here, despite Plaintiff's allegation in the form complaint that he complied with all claim presentation requirements, he attaches a government claim form dated December 20, 2022. (Complaint at pp. 14-15.) Plaintiff alleged that his property was taken on December 22, 2021. He further alleges that by December 23, 2021, he began a hunger strike to in order to have the matter properly addressed and investigated. (Complaint at p. 4.) Plaintiff’s claims accrued no later than December 23, 2021. He was required to present his tort claim within six months from that date, which would have been June 23, 2022.

Plaintiff did not submit his claim until December 20, 2022. Plaintiff does not appear to have filed a petition for leave to file a late tort claim pursuant to Government Code section 946.6 or a written application to the public entity for leave to present a late claim pursuant to Government Code section 911.4.

In opposition, Plaintiff appears to acknowledges that his claims are governed by the Tort Claims Act. However, Plaintiff appears to take the position that his suit is timely because

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006712: THOMAS vs KUPPINGER, et al. 04/19/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 53

he was required to exhaust administrative remedies prior to filing his tort claim. However, this is no basis for presenting a late claim under the Tort Claims Act. The administrative remedy process for prisoners 'is independent of the obligation to comply with the Government Claims Act.' (Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1382.) While Plaintiff may be required to complete the administrative process prior to filing the instant action, that process had no bearing on timely filing a tort claim. At most, the time within which a prisoner is engaged in the internal administrative review process is excluded from the time limits in pursuing a court action, e.g., filing a court action six months after the tort claim has been rejected. (Wright v. State of California (2004) 122 Cal.App.4th 659, 671.)

Additionally, Plaintiff also appears to argue that his suit is timely because he did not receive a written notice that a decision was given in connection with his tort claim, but filed the instant action within two years of after the injury occurred. (See Gov. Code §945.6(a)(2) [“any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced: If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action”].)

Here, the authority cited by Plaintiff refers to the time in which Plaintiff was required to file his lawsuit. It has no bearing on the six-month deadline to present his tort claim. The Court further notes that the instant complaint was filed on May 22, 2024, which is more than two years after Plaintiff’s alleged injuries occurred. Plaintiff has not alleged any basis for tolling the twoyear deadline in which to file his complaint after not receiving a response from the State of California to the claim filed on December 20, 2022.

As a result, Defendants’ demurrer to the complaint is SUSTAINED on the basis that Plaintiff has failed to timely comply with the Tort Claims Act. Because the demurrer has been sustained as to the entire complaint, the Court need not address the rest of the parties’ remaining arguments.

Disposition

Defendant’s demurrer is SUSTAINED. Since this demurrer is the first challenge to the pleadings, the demurrer is sustained with leave to amend. However, the Court notes it is unclear whether, based on the allegations in the current complaint and Plaintiff's opposition, Plaintiff can properly allege facts that will sufficiently address the issue of his failure to comply with the Tort Claims Act. In any event, leave to amend will be permitted at this stage.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006712: THOMAS vs KUPPINGER, et al. 04/19/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 53

Plaintiff may file and serve a First Amended Complaint no later than May 31, 2024. Response to be filed and served within 30 days thereafter, 35 days if the FAC is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the FAC to facilitate the filing of the pleading.)

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

On the Court's own motion, the Hearing on Demurrer to Plaintiff's Complaint scheduled for 04/19/2024 is continued to 05/10/2024 at 10:00 AM in Department 31 at Gordon D. Schaber Superior Court.