THOMAS vs KUPPINGER, et al.

23CV006712: THOMAS vs KUPPINGER, et al. 10/20/2025 Hearing on Demurrer to plf's Second Amended Complaint in Department 53

Tentative Ruling

NOTICE: PLEASE TAKE NOTICE that pursuant to “Public Notice – Civil Division – Wednesday Law and Motion Calendar” any oral arguments regarding this tentative ruling will be heard in Department 25, located at 720 9th Street, Sacramento, CA, the Hon. Julie G. Yap presiding. Should argument be requested by either party, the requesting party must call the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the hearing, request the hearing, and notify the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

The Court encourages parties to appear remotely for the hearing on the tentative ruling through the Court’s Zoom Application. But, any party wishing to appear in person may do so, provided that party notifies the Court by 4:00 the Court day before the hearing. The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link: https://saccourt-ca-gov.zoomgov.com/my/sscdept25 SIP Address: 16113421868@sip.zoomgov.com (833) 568-8864 ID: 16113421868 Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956.

Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore 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.

23CV006712: THOMAS vs KUPPINGER, et al. 10/20/2025 Hearing on Demurrer to plf's Second Amended Complaint in Department 53

NOTICE:

Oral Argument will take place on November 3, 2025, at 1:30 p.m. in this Department.

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 November 3, 2025, at 1:30 pm. Appearance will be by ZOOM. Department 25’s Zoom ID is: 16113421868. To appear on Zoom by phone, call (833) 568-8864 and enter 16113421868#.

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 (collectively “Defendants”) demurrer to incarcerated pro per Plaintiff Edward Thomas’ (“Plaintiff”) second amended complaint (“2AC”) is unopposed and ruled upon as follows.

Background

Following the Presiding Judge’s July 20, 2023, order, Plaintiff’s original complaint was deemed filed on May 22, 2023, and in it, Plaintiff purported to assert causes of action for negligence and intentional tort based on events alleged to have occurred on December 22, 2021. In brief, Plaintiff claims that while he was incarcerated, Defendants misappropriated and/or failed to properly document Plaintiff’s personal property (i.e., packaged food, hygiene items, clothing, electronics, religious items) in connection with Plaintiff’s transfer to different facility.

On November 27, 2023, Defendants filed a demurrer to the complaint on the grounds that, (1) Plaintiff’s claims are barred for 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006712: THOMAS vs KUPPINGER, et al. 10/20/2025 Hearing on Demurrer to plf's Second Amended Complaint in Department 53

intentional tort claim against defendants, and (5) the complaint is fatally uncertain. Plaintiff opposed the demurrer. Following a hearing on May 11, 2024, the Court sustained Defendants’ demurrer on the ground Plaintiff had failed to timely comply with the Government Claims Act and declined to rule on any of the other grounds advanced by Defendants. The Court granted leave to amend, and on June 24, 2024, Plaintiff filed his first amended complaint (“1AC”).

On September 30, 2024, Defendants filed their demurrer to the 1AC which, like the prior one, contended that, (1) Plaintiff’s claims are barred for 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 1AC is also fatally uncertain. In support of the demurrer, Defendants filed a Request for Judicial Notice, asking the Court to take judicial notice of a declaration provided by Nick Wagner, Staff Services Manager of the Government Claims Program for the Department of General Services, which in part identified the government claims presented by or on behalf of Plaintiff in 2022, as well as an application he submitted in December 2022 for leave to present a late claim (which was not approved).

Plaintiff opposed the demurrer. Following a hearing on January 28, 2025, the Court sustained Defendants’ demurrer on the grounds that Plaintiff’s claims were barred due to his failure to file a government claim, that Plaintiff failed to plead sufficient facts to state causes of action for either negligence or intentional tort, and that the Defendants were immune from liability pursuant to Government Code section 820.8. (1/28/25 Order.) The Court noted that it was unable to conclude that Plaintiff had no reasonable possibility of pleading a valid cause of action against any of the Defendants, so leave to amend was granted, and Plaintiff filed his 2AC on March 10, 2025. (Ibid.)

The 2AC now consists of approximately 76 pages, the bulk of which purports to be “exhibits” supporting Plaintiff’s allegations. Nevertheless, it appears that Plaintiff continues to assert only two causes of action for negligence and intentional tort, along with a claim for punitive damages.

Legal Standard

A demurrer tests the legal sufficiency of the pleadings, raising issues of law, not fact, regarding the form or content of the opposing party’s pleading. (Code Civ. Proc., §§ 422.10, 589.) A demurrer may only challenge defects on the face of the complaint or from matters that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) However, the face of the complaint includes facts contained in exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) A demurrer can be utilized where a complaint itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (Myers) (2001) 94 Cal.App.4th 963, 971-972.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006712: THOMAS vs KUPPINGER, et al. 10/20/2025 Hearing on Demurrer to plf's Second Amended Complaint in Department 53

In reviewing the sufficiency of a complaint against a general demurrer, courts treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. Matters which may be judicially noticed may also be considered. The complaint is to be given a reasonable interpretation, reading it as a whole and its parts in their context. (Farmers v. Zerin (1997) 53 CaI.App.4th 445, 451.) Consideration of extrinsic evidence or facts asserted in the memorandum supporting or opposing the demurrer is improper. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

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, 733.) Still, the plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action. (See, e.g., Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031; Sui v. Price (2011) 196 Cal.App.4th 933, 938.) The allegations must be factual and specific, not vague or conclusionary. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43–44.)

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.) Finally, a demurrer may only be sustained where it disposes of an entire cause of action. (See, e.g., Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.

Discussion

Defendants’ request for judicial notice is unopposed and granted. Similar to Defendants’ demurrer to the 1AC, Defendants again request that the Court judicially notice the Wagner Declaration (and the exhibits attached thereto). Defendants again properly cite to Fowler v. Howell (1996) 42 Cal.App.4th 1746, as expressly authorizing a public entity to request and a trial court to grant, pursuant to Evidence Code section 452(c), judicial notice of public records which are claimed to show non-compliance with the Government Claims Act.

On April 2, 2025, Defendants filed this instant demurrer to the 2AC, again, on the grounds that, (1) Plaintiff’s claims are barred for 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006712: THOMAS vs KUPPINGER, et al. 10/20/2025 Hearing on Demurrer to plf's Second Amended Complaint in Department 53

intentional tort claim against defendants, and (5) the 2AC is fatally uncertain.

Notably, Plaintiff does not oppose the motion. The Court construes Plaintiff’s failure to oppose the demurrer as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].) Accordingly, the demurrer is sustained.

Since the Court is presently unable to conclude that plaintiff has no reasonable possibility of pleading a valid cause of action against any of Defendants, leave to amend is GRANTED.

The Court notes that Code of Civil Procedure section 430.41(e)(1) provides:

In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.

In this case, Defendants have filed three demurrers, all of which have been sustained with leave to amend. As such, this will be Plaintiff’s third opportunity to amend the Complaint.

Disposition

Defendants’ demurrer to the 2AC is SUSTAINED with leave to amend.

Plaintiff may file and serve an amended complaint no later than December 3, 2025. Although not required by Court rule or statute, Plaintiff is directed to present a copy of this order when the amended complaint is presented for filing.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules Court, rule 3.1312.)