Sales v. City and County of San Francisco CA1/1

Filed 5/12/21 Sales v. City and County of San Francisco CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
JAMES SALES,
Plaintiff and Appellant,
A156772
v.
CITY AND COUNTY OF SAN (San Francisco County
FRANCISCO, Super. Ct. No. CGC-18-570127)
Defendant and Respondent.
Appellant James Sales appeals from the judgment issued after the trial
court sustained a demurrer filed by respondent, the City and County of San
Francisco (City). Appellant asserts the trial court abused its discretion when
it sustained the City’s demurrer without giving him an opportunity to amend
his original complaint. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2018, appellant, acting in pro per, filed a complaint
against the City. The complaint was prepared using a Judicial Council of
California form provided for optional use in contract cases. The part of the
form that describes the cause of action contains check boxes for “Breach of
Contract,” “Common Counts,” and “Other (specify).” For the checked “Other”
box, appellant wrote “not investigation [sic] my complaint.” Under “Other
allegations” he wrote, “[d]id not show in court cover up.” On the civil case
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information statement filed concurrently with the complaint, he checked the
box designating the matter as a civil rights case.
Appellant attached two documents to his complaint: a copy of a
December 2017 ruling from the City’s Housing Authority addressing the
suspension of his Section 8 housing benefits following allegations of drug-
related criminal activity and forgery, and a copy of a December 2017
application for leave to present a late claim that references the Housing
Authority’s decision and asserts he had been unfairly punished.
In October 2018, the City filed a demurrer to the complaint asserting
that appellant had failed to plead sufficient facts to state a cause of action,
and that the pleading was uncertain and unintelligible. (Code Civ. Proc., §
430.10, subds. (e) & (f).) The City also argued that appellant should not be
afforded leave to amend because he had recently filed three “largely
unintelligible” complaints against the City that were later voluntarily
dismissed. Appellant did not file an opposition to the City’s demurrer.
On November 30, 2018, the trial court sustained the demurrer without
leave to amend. The court’s order does not state the basis for its ruling.
Judgment in favor of the City was entered on January 18, 2019. This appeal
followed.1
1 Appellant filed an earlier appeal in this case from the trial court’s
order sustaining the demurrer before the trial court had entered judgment.
(Sales v. City and County of San Francisco Appeal No. A156157). That
appeal was dismissed for failure to file an opening brief on December 11,
2019. This procedural dismissal is not a bar to our review of a timely appeal
from the final judgment in this matter.
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DISCUSSION
A. Applicable Legal Principles
The standard of review governing an order sustaining a demurrer
without leave to amend is long settled. (Blank v. Kirwan (1985) 39 Cal.3d
311, 318 (Blank).) “ ‘We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or
law. [Citation.] We also consider matters which may be judicially noticed.’
[Citation.] Further, we give the complaint a reasonable interpretation,
reading it as a whole and its parts in their context. [Citation.] When a
demurrer is sustained, we determine whether the complaint states facts
sufficient to constitute a cause of action.’ ” (Ibid.) We “ ‘determine de novo
whether the complaint alleges facts sufficient to state a cause of action or
discloses a complete defense.’ ” (McBride v. Smith (2018) 18 Cal.App.5th
1160, 1172–1173.)
“[W]hen [a demurrer] is sustained without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.] The burden of proving such reasonable possibility is squarely on
the plaintiff.” (Blank, supra, 39 Cal.3d at p. 318.) Here, appellant does not
contend that the trial court erred in sustaining the City’s demurrer. Instead,
he argues that the court should have granted him leave to amend his
complaint.2
2Although appellant did not ask the trial court for leave to amend his
complaint, this does not prevent him from raising the issue for the first time
on appeal. When a trial court sustains a demurrer without leave to amend,
“the question as to whether or not such court abused its discretion in making
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Of particular importance to this appeal is the long-standing rule that
leave to amend an original complaint is normally granted. “Ordinarily, an
appellant who seeks leave to amend attempts to show that the trial court’s
denial of leave to amend was error by showing on appeal what facts could be
pleaded to cure defects in the complaint and how they state a cause of action.
[Citation.] But for an original complaint, regardless whether the plaintiff has
requested leave to amend, it has long been the rule that a trial court’s denial
of leave to amend constitutes an abuse of discretion unless the complaint
‘shows on its face that it is incapable of amendment.’ [Citations.]” (Eghtesad
v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411 (Eghtesad).)
The trial court’s ruling on the demurrer was to appellant’s initial complaint.
B. Analysis
Appellant argues that the trial court erred in denying him leave to
amend. He emphasizes that, apart from the documents attached to the
complaint, the pleading itself “is so devoid of facts that it is absurd to argue
that amendment cannot cure at least the defect of ambiguity and
unintelligibility.” He also claims that there is a reasonable possibility that he
can amend his complaint to state facts sufficient to allege at least two causes
of action, one for negligence and one for violation of his right to due process
under both federal and state law We consider his proposed causes of action
in turn.
i. Negligence
The elements for a negligence cause of actions are “ ‘ “(a) a legal duty to
use due care; (b) a breach of such legal duty; [and] (c) the breach as the
proximate or legal cause of the resulting injury.” ’ ” (Ladd v. County of San
such an order is open on appeal even though no request to amend such
pleading was made.” (Code Civ. Proc., § 472c, subd. (a).)
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Mateo (1996) 12 Cal.4th 913, 917, italics omitted.) It has long been
understood that “a cause of action may be stated in which negligence is
alleged in general terms, without detailing the specific manner in which the
injury occurred. [Citations.] There are, of course, limits to the generality
with which a plaintiff is permitted to state his cause of action, and it is
ordinarily said that while negligence may be pleaded in general terms, the
plaintiff must indicate the acts or omissions which are said to have been
negligently performed. He may not recover upon the bare statement that the
defendant’s negligence has caused him injury.” (Guilliams v. Hollywood
Hospital (1941) 18 Cal.2d. 97, 101; accord Quelimane Co. v. Stewart Title
Guaranty Co. (1998) 19 Cal.4th 26, 60; Berkley v. Dowds (2007) 152
Cal.App.4th 518, 527.)
Appellant maintains that he can state a negligence claim based on
information contained in the summary of the administrative hearing as set
forth in the copy of the administrative decision that he attached to the
complaint. The decision relates that appellant testified he was instructed by
an intake worker at the Housing Authority to sign his landlord’s name on the
proof of residency form that he is required to submit every six months in
order to retain his eligibility for Section 8 housing benefits. When his
landlord later accused him of forgery, his benefits were suspended for 30
days.
As the basis for his negligence claim, appellant asserts that the City,
through its Housing Authority, owed him a general duty of care as the
provider of his Section 8 housing. Alternatively, he states that he can allege
that the City’s employee “voluntarily assumed a duty when they instructed
[him] to sign his landlord’s name on a form submitted to the San Francisco
Housing Authority.” He proposes to allege that the employee breached that
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duty of care by soliciting appellant to commit the crime of forgery, resulting
in a 30-day suspension of his Section 8 benefits. These allegations suffice to
show a reasonable possibility that he will be able state a claim for negligence
under the standards applicable here. We express no opinion as to the merits
of this claim.
ii. Violation of Due Process
Appellant also argues that he can amend the complaint to allege facts
sufficient to plead a civil rights cause of action based on the City’s failure to
provide him with due process under federal and state constitutions before
cancellation of his Section 8 benefits.
To state a due process, claim under federal law, appellant must allege
(1) a deprivation of a constitutionally protected liberty or property interest,
and (2) a denial of adequate procedural protections. (Brewster v. Bd. of Educ.
of Lynwood Unified Sch. Dist. (9th Cir. 1998) 149 F.3d 971, 982.) Here,
appellant contends that he can amend the complaint to allege that the City
deprived him of his federal and state right to due process by terminating his
Section 8 benefits without investigating the truth of the alleged violations,
restoring his benefits only after an administrative review. As appellant
notes, due process requires that a recipient of Section 8 benefits receive
notice and a hearing prior to termination of those benefits. (Johnson v.
Housing Authority of City of Oakland (2019) 38 Cal.App.5th 603, 607-608.)
Appellant has demonstrated a reasonable possibility that he can state a claim
for violation of due process, although we again express no opinion as to the
claim’s merits.
iii. Appellant Must Be Afforded Leave to Amend
The City contends that appellant has provided no facts to indicate that
his state law claims were raised in a government claim prior to filing the
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complaint, as is required by the Government Claims Act (see Gov. Code, §§
905, 945.4; Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374
[compliance with the Government Claims Act is a “condition precedent” to
filing a lawsuit and is treated as “an element of a valid cause of action
against a public entity.”].) While noting that the original complaint includes
a copy of an application for leave to present a late claim, the City asserts the
notice does not properly allege any negligence or civil rights violations. The
City also contends that appellant’s due process claim fails as a matter of law,
urging that the hearing decision attached to his complaint “clearly
demonstrate[s] that Appellant had notice regarding the recommended
termination of his Section 8 benefits and the reasons why”, and show that his
claim was investigated and he was provided with a hearing. The City also
points to the three dismissed complaints appellant previously filed as
evidence that further amendment would be futile. The City’s contentions are
not persuasive.
As reflected in our discussion above, “when confronted with an original
complaint we focus not on what facts the plaintiff shows he can allege in an
amended complaint, but rather on whether anything in the original
complaint forecloses amendment. [Citation.]” (Eghtesad, supra, at pp. 413-
414, italics added.) Given the complaint’s vague and bare allegations, it is
not possible to conclusively determine whether he failed to comply with the
Government Claims Act or whether his due process claim fails as a matter of
law, as the City contends.
“[A] plaintiff may allege compliance with the claims presentation
requirements in the Government Claims Act by including a general
allegation that he or she timely complied with the claims statute.” (Perez v.
Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1237.) Nothing in
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the original complaint, including the attached application for leave to present
a late claim, conclusively establishes that appellant is categorically barred
from adding such an allegation in an amended complaint. Accordingly, he
must be afforded the opportunity to allege compliance with the claims
presentation requirement. The City will of course be free to challenge the
allegation should an amended complaint be filed.
As to appellant’s proposed due process claim, the documents attached
to appellant’s complaint do not expressly state that he received notice and
was afforded a hearing prior to the suspension of his housing benefits. We
cannot say from a review of the original complaint and its attachments that
appellant is unable to assert a due process claim as a matter of law. Finally,
the voluntary dismissals of appellant’s other complaints against the City
prior to the instant matter are legally irrelevant to our determination
whether appellant is incapable of amending his complaint to state a viable
claim.
Accordingly, we shall direct the trial court to allow appellant to amend
his complaint to attempt to allege causes of action against the City for
negligence, violation of his civil rights, or any other related claim, if he is able
to do so in good faith.
DISPOSITION
The judgment is reversed. The matter is remanded with instructions to
vacate the order sustaining the demurrer without leave to amend and to
enter a new order sustaining the demurrer with leave to amend. Appellant is
entitled to his costs on appeal.
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SANCHEZ, J.
We concur.
HUMES, P.J.
MARGULIES, J.
(A156772)
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