MORDCHAI BRAFMAN v. SEAN BENAROYA, et al.

Legal Standard

Leave to Amend California Code of Civil Procedure section¿473, subdivision¿(a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party¿to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.¿ The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”¿ Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿

The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿¿(See¿ California Casualty General Ins. Co. v. Superior Court¿ (1985) 173 Cal.App.3d 274, 281¿(overruled on other grounds by¿ Kransco¿v. American Empire Surplus Lines Ins. Co. ¿(2000) 23 Cal.4th 390).)¿ Under¿California Rules of Court¿Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any,¿and where, by page, paragraph, and line number, the additional allegations are located.¿ Under¿California Rule of Court¿Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4)¿the reasons why the request for amendment was not made earlier.¿

Judgment on the Pleadings Either prior to trial, but after the time to answer or demur has passed, or at the trial, the plaintiff or the defendant may move for judgment on the pleadings and that the appropriate ground for such a motion is the same as that arguable by general demurrer, namely, the failure to state a cause of action or defense. (Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 791; See also Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586 [The non-statutory motion for judgment on the pleadings can be made at any time, even during trial, since the grounds for a general demurrer are never waived.], see also Code Civ.

Proc., §438(f).) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (See, e.g., Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (TRG 1998) §§ 7:275, 7:322; Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Id.; Cloud v.

Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Both a demurrer and a motion for judgment on the pleadings accept as true all material factual allegations of the challenged pleading, unless contrary to law or to facts of which a court may take judicial notice. (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677; Edwards v. Centex Real Estate Corp, (1997) 53 Cal.App.4th 15, 27.)

Request for Judicial Notice Defendants request judicial notice of: (1) Plaintiff’s Government Tort Claim dated 6/12/23; (2) LADWP?s Late Claim Rejection Letter dated 6/29/23; and (3) LADWP?s Claim Unit Chronology Notes of Plaintiff’s Tort Claim. In addition to the three requests above, Rubi also seeks judicial notice of: (4) Plaintiff’s Complaint against Rubi; (5) LADWP?s Electric Service Requirements; and (6) Electric Service Specification 104. The requests are unopposed and granted. (See Evid. Code § 452(c)-(d).) The court notes it is not taking judicial notice of any testimony, but rather is taking judicial notice of the filing and contents of the government claim. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369-70 n. 1; see also Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-53.)

Evidentiary Objections Plaintiff’s Objections to Defense Counsel’s Declaration are OVERRULED.

Discussio n A. Plaintiff’s Motion for Leave to Amend Plaintiff moves for leave to file a second amended complaint against Defendants DWP and Rubi (among others) to add causes of action for fraud, fraudulent concealment, intentional misrepresentation, abuse of process, malicious prosecution, intentional interference with contractual relations, intentional interference with prospective economic advantage, civil conspiracy, aiding and abetting, negligent supervision, negligent infliction of emotional distress, and declaratory and injunctive relief. Plaintiff contends he has obtained newly discovered evidence including fabricated and antedated DWP correction notices, concealed and altered DWP ledger entries, and email communications between Defendants and government agencies’that did not exist in Plaintiff’s possession at the time he filed his Complaint or First Amended Complaint.

Plaintiff has not complied with CRC Rule 3.1324 as the proposed pleading does not state what allegations are proposed to be added to the previous pleading,¿and where, by page, paragraph, and line number, the additional allegations are located.¿ Further, the allegations in the proposed pleading regarding the false reports appear in the original complaint. Thus, it is unclear why Plaintiff did not move to amend the pleading earlier to allege these additional causes of action. More importantly, the proposed pleading does not allege that Plaintiff has complied with the claim presentation requirements against a public entity and its employee. Thus, amendment would be futile.

Equally important, Defendant points out there are certain immunities that bar Plaintiff’s proposed causes of action. “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.” (Gov. Code, § 818.8.) “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” (Gov.

Code, § 822.2.) Government Code section 810 et seq. “immunizes both public entities (§ 818.8) and their employees (§ 822.2) from damages resulting from either negligent or intentional misrepresentations made by the employees.” (Tokeshi v. State of California (1990) 217 Cal.App.3d 999, 1003.) Section 818.8 provides absolute immunity to the public entity. (See Universal By-Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 153-54.)¿¿

Plaintiff’s proposed pleading alleges that Defendants knowingly made false statements about the existence, timing, and content of DWP correction notices. (Proposed SAC, ¶ 111.) For purposes of these applying sections, “misrepresentation’ narrowly refers to causes of action that are forms of the common law tort of deceit (codified in Civ. Code, § 1709) and involve interferences with financial or commercial interests. [Citations.] California law generally recognizes four forms of deceit: intentional misrepresentation, negligent misrepresentation, concealment, and failure to perform a promise. [Citations.]

Courts have assumed the immunities in sections 818.8 and 822.2 apply to all four forms of deceit. [Citations.] (Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1252-53; See also Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 866 (“The Government Code does not define “misrepresentation,” but?[t]he courts have assumed that the immunity includes all types of fraud and deceit cases including fraudulent concealment.”)) “The immunity is absolute for the public entity.” (Tokeshi, supra, 217 Cal.App.3d at 1003, internal citations omitted.)

Plaintiff seeks to recover financial losses arising out of the alleged misrepresentations of Defendants. Thus, all of the proposed causes of action would be barred pursuant to Government Code section 818.8.

Plaintiff argues that actual fraud is not barred. A public employee may be liable for actual fraud, but the public entity is wholly immune. (Citation.)? (Harshbarger v. City of Colton¿ (1988) 197 Cal.App.3d 1335, 1340?1341.) As such, Defendant DWP is immune from actual fraud as well, even if Rubi would not be.

Further, Defendants are immune from liability for malicious prosecution/abuse of process. “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” (Gov. Code § 821.6.) “California courts construe section 821.6 broadly in furtherance of its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits.” (Gillan v. City of San Marino (2007) 147 Ca1.App.4th 1033, 1048; accord Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292.) Moreover, “a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Gov. Code § 815.2(b).)

Plaintiff alleges that Defendant Benaroya initiated a CSLB complaint on October 6, 2022, using fabricated and altered DWP correction notices, a fabricated DWP document, and an LADBS Order to Comply. Plaintiff alleges that Defendant Rubi knowingly provided or allowed the use of fabricated and antedated correction notices to support the CSLB complaint. These alleged acts fall within the scope of the performance of the Defendant’s duties. Immunity would therefore apply. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209-10 [“Because investigation is “an essential step’ toward the institution of formal proceedings, it “is also cloaked with immunity.””].) Furthermore, because Defendant Rubi would be immune from liability under Government Code § 821.6, Defendant DWP is immune as well. (Gov. Code § 815.2(b).)

Additionally, the court notes that Government Code section 820.2 provides,?[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” A discretionary act is one which requires the exercise of judgment or choice. (Johnson v. State of California (1968) 69 Ca1.2d 782, 788.) Further, Government Code § 820.2 immunity also applies to investigatory acts. (Newton v.

Cnty. of Napa (1990) 217 Cal.App.3d 1551, 1561.) Thus, because Government Code section 821.6 is applicable to this matter, so is Government Code section 820.2. (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292 [“It follows that if section 821.6 applies, so also does section 820.2.”].) Therefore, Government Code section 820.2 applies and provides further immunity from Plaintiff’s lawsuit.

Next, Government Code section 815 provides that?[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person’ except as provided by statute. (Govt. Code § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) Government Code section 815.2 provides that a public entity is vicariously liable for the torts of their employees committed within the scope of employment if the employee is liable. (See Govt.

Code § 815.2(a); Chambi v. Regents of Univ. of Cal. (2002) 95 Cal.App.4th 822, 827; Hoff, supra, 19 Cal.4th at 932.) “Since the duty of a governmental agency can only be created by statute or “enactment,” the statute or “enactment’ claimed to establish the duty must at the very least be identified.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802.) The proposed pleading does not cite to any statute that would provide liability against Defendants.

Lastly, as discussed more fully below, Plaintiff’s claim against Defendant Rubi was not filed within six months after Defendant DWP rejected his claim. The Court is therefore without jurisdiction to grant relief, and dismissal of the action against Rubi is required. For all these reasons, amendment would be futile. The motion for leave to amend is therefore DENIED.

B. Defendant DWP?s Motion for Judgment on the Pleadings Immunities Defendant DWP moves for judgment on the pleadings, and among other things, contends several Government Code sections immunize Defendant from liability for Plaintiff’s claims. Defendant relies on immunities directly applicable it that cover (1) “injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue’ any permit, license, certificate, approval, [or] order? (§ 818.4), (2) “injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property’ for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety? (§ 818.6), and (3) “injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional? (§ 818.8).

Defendant also relies on immunities vicariously applicable to it. (§ 815.2(b) (immunities applicable to public entity’s employee are applicable to the public entity).) These immunities cover (1) “injury resulting from [a public employee’s] act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused? (§ 820.2), and (2) “injury caused by [a public employee’s] issuance’ of, or by his failure or refusal to issue’ any permit, license, certificate, approval, [or] order? (§ 821.2).

As noted above,”[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.” (Gov. Code, § 818.8.) “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” (Gov. Code, § 822.2.) Government Code section 810 et seq. “immunizes both public entities (§ 818.8) and their employees (§ 822.2) from damages resulting from either negligent or intentional misrepresentations made by the employees.” (Tokeshi, supra, 217 Cal.App.3d at 1003.) Section 818.8 provides absolute immunity to the public entity. (See Universal By-Products, Inc., supra, 43 Cal.App.3d at 153-54.)

For purposes of these applying sections, “misrepresentation’ narrowly refers to causes of action that are forms of the common law tort of deceit (codified in Civ. Code, § 1709) and involve interferences with financial or commercial interests. [Citations.] California law generally recognizes four forms of deceit: intentional misrepresentation, negligent misrepresentation, concealment, and failure to perform a promise. [Citations.] Courts have assumed the immunities in sections 818.8 and 822.2 apply to all four forms of deceit. [Citations.] (Finch Aerospace Corp., supra, 8 Cal.App.5th at 1252-53; See also Michael J., supra, 201 Cal.App.3d at 866 (“The Government Code does not define “misrepresentation,” but?[t]he courts have assumed that the immunity includes all types of fraud and deceit cases including fraudulent concealment.”)) “The immunity is absolute for the public entity.” (Tokeshi, supra, 217 Cal.App.3d at 1003, internal citations omitted.)

Determining whether these statutory immunities apply requires (1) defining the injury and (2) determining the cause of the injury. Plaintiff’s injury was that he advanced over $120,000 in costs for the repairs in the correction notices. Plaintiff’s alleged cause of the injury was that Rubi, the inspector for DWP, created false reports and repair notices for conditions that no longer existed per the request of the property owner, who was attempting to force work to be completed beyond the scope of the original contract. Plaintiff’s complaint alleged that LADWP Inspector Rubi issued "false reports," "back-dated notices," and "misinformation? (Compl., ¶¶ 27, 30, 40 & 42.) As such, Plaintiff’s claims fall within the scope of Government Code section 818.8.

Plaintiff argues that actual fraud is not barred. Again, a public employee may be liable for actual fraud, but the public entity is wholly immune. (Citation.)? (Harshbarger, supra, 197 Cal.App.3d at 1340?1341.) As such, Defendant DWP is immune from actual fraud as well. Accordingly, Defendant DWP?s motion for judgment on the pleadings is GRANTED WITHOUT LEAVE TO AMEND.

C. Defendant Rubi’s Motion for Judgment on the Pleadings Untimely Filing of Lawsuit After Rejection of Claim?[T]he California Tort Claims Act’ establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. [Citation.] The failure to do so bars the plaintiff from bringing suit against that entity.” (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.)?[F]ailure to allege facts demonstrating or excusing compliance with this claim presentation requirement subjects a complaint to a general demurrer.” (Ibid.)

Government Code section 945.5 provides, “No suit for damages may be maintained against a public entity unless the claim has been presented to it.” Government Code section 911.2(a) states,”[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.”

Government Code section 945.6 provides in relevant part: (a) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), 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: (1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.? “Government Code § 945.6 is a statute of limitation.” (Cole v.

Los Angeles Unified School Dist. (1986) 177 Cal.App.3d 1, 3; see also Dowell v. Contra Costa County (2013) 928 F.Supp.2d 1137, 1152 [“Under § 945.6, if the board delivers written notice of its decision to the complainant, the complainant has six months to file a civil suit? This functions as a statute of limitations.”].) “It is well established by case law that the six-month limitation period in Government Code section 945.6 starts to run when the notice of rejection has been either personally served or deposited in the mail.” (Cole, 177 Cal.App.3d at 4.)

The requirement that a claim must be presented to the public entity before commencing an action also applies to actions against public employees acting within the scope of their employment, unless the plaintiff can plead and prove that he did not know or have reason to know that a public employee was the cause of his injury and damages. (See Williams v. Braslow (1986) 179 Cal.App.3d 762, 772-73 (citing Government Code sections 950, 950.2, and 950.4).)?[T]he proper filing of a claim against the public entity is a condition precedent to action against the employees.” (Moyer v. Hook (1970) 10 Cal.App.3d 491, 492 (citing Gov. Code, § 950.2, and Law Revision Commission comments thereon).)

The judicially noticeable evidence establishes that Plaintiff presented a claim for injuries concerning the underlying incident to Defendant on June 12, 2023, and that Defendant mailed a notice of rejection on June 29, 2023. (Request for Judicial Notice Exhs. 1-2.) Consequently, Plaintiff was required to file this action not later than six months after the notice of rejection was deposited in the mail. (Gov. Code § 945.6(a)(1); see also Cole v. Los Angeles Unified School Dist. (1986) 177 Cal.App.3d 1, 4 [“It is well established by case law that the six-month limitation period in Government Code section 945.6 starts to run when the notice of rejection has been either personally served or deposited in the mail and the time is not extended five additional days by Code of Civil Procedure Section 1013.”].)

The six-month limitation period of Government Code § 945.6 means six calendar months, or 182 days, whichever is longer. (Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, 603.) In this case, 182 days or six months after June 29, 2023, was around December 29, 2023. However, Plaintiff filed this complaint against Defendant Rubi in August of 2024, well past the sixth-month limitation.

The statute of limitations imposed by section 945.6 is mandatory and must be strictly complied with. (Cole v. Los Angeles Unified School District (1986) 177 Cal. App. 3d 1, 5.) If the claimant fails to commence an action within the 6-month time period prescribed by section 945.6, the court is without jurisdiction to grant relief, and dismissal of the action is required. (Id.) As such, the Court is without jurisdiction to grant Plaintiff relief. Plaintiff fails to address this point in his opposition. Therefore, Defendant Rubi’s motion for judgment on the pleadings is GRANTED WITHOUT LEAVE TO AMEND.

D. Plaintiff’s Motion for Trial Preference Plaintiff also seeks a trial preference. This motion for trial preference was filed in 23STCV13274, which is Plaintiff’s case against Defendant DWP. The Court notes this is not the lead case. The proof of service indicates that only Defendant DWP and Rubi’s counsel was served with notice of this motion. To the extent Plaintiff sought trial preference against DWP and Rubi, the motion is moot as they have been dismissed. To the extent Plaintiff seeks a trial preference as to the remaining parties, notice of this motion should have been served upon them. The motion for trial preference is DENIED without prejudice.

Case Number: 25STCV14726 Hearing Date: May 19, 2026 Dept: 731 P&P BROADWAY, LLC, Plaintiff, v. ABODE LA, LLC, et al. Defendants.