NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

INTRODUCTION

Plaintiff and appellant James L. Miller appeals a judgment of dismissal in favor of defendant and respondent City of Hawthorne and an order of dismissal in favor of defendant and respondent Raul Espinoza. The judgment and order were entered after the trial court sustained defendants' demurrer to Miller's second amended complaint. We affirm.

This case arises from an incident which occurred on December 19, 2009. Miller contends that Espinoza, a police officer employed by the City of Hawthorne, committed various civil wrongs which caused Miller to sustain personal injuries.

The trial court never reached the merits of the case because it concluded that Miller failed to allege that he complied with the requisite claims statutes prior to commencing this action. We find no error in the proceedings below.

BACKGROUND

1. Procedural History

This action commenced on July 23, 2009, when Miller filed his complaint. Defendants responded by filing a demurrer. Miller filed a first amended complaint before the hearing on defendants' demurer. Defendants took their demurrer off calendar and filed a motion for judgment on the pleadings attacking the first amended complaint. Miller then filed a second amended complaint, the operative pleading.

On February 16, 2010, defendants filed a demurrer to the second amended complaint on the ground that the pleading failed to state facts sufficient to constitute a cause of action. Defendants argued that Miller's action was barred because he failed to comply with the claims statutes.

On April 12, 2010, the trial court sustained the demurrer to the second amended complaint without leave to amend as to the City of Hawthorne. In its minute order the court stated it sustained the demurrer "on the grounds that: (1) Plaintiff failed to comply with the claim presentment statute; and (2) Plaintiff states in oral argument that he does not want to seek any claim against the City."1 With respect to Espinoza, the trial court sustained the demurrer with 20 days leave to amend "on the grounds Plaintiff states he is seeking damages against Officer Espinoza for violation of the Federal Civil Rights Act of 1871, codified as 42 U.S.C. Section 1983, to which compliance with the claims statutes is not required."

On April 19, 2010, the court entered a judgment of dismissal in favor of the City of Hawthorne.

On May 12, 2010, Espinoza filed a motion to dismiss pursuant to Code of Civil Procedure section 581, subdivision (f)(2), on the ground that Miller failed to amend his second amended complaint within 20 days of April 12, 2010.

On June 9, 2010, the court entered an order signed by Judge William G. Willett, granting Espinoza's motion to dismiss. The order also stated: "This case is ordered dismissed as to Defendant Raul Espinoza."

On June 9, 2010, Miller appealed the April 19, 2010, judgment of dismissal and June 9, 2010, order of dismissal.2

2. Allegations in the Second Amended Complaint

The second amended complaint consists of a Judicial Council form complaint for personal injury actions. It alleges causes of action for "professional malpractice, excessive force, assault with a deadly weapon." These claims are based on a December 19, 2008, incident, which is described in three hand-written pages.

The gravamen of the second amended complaint is that police officers entered the apartment of Miller's daughter and used a taser on Miller, causing him to sustain personal injuries. The second amended complaint also alleges that Miller and his son-in-law were arrested. Miller was charged with violating Penal Code section 148, subdivision (a)(1) (resisting arrest or obstructing an officer).

Miller checked a box on the form complaint indicating that "Plaintiff is required to comply with a claims statute[.]" He also checked the box indicating he is "excused from complying" with the claims statute.

With respect to Miller's excuse, the second amended complaint provides: "Under West's Annotated California Codes, Government Code incorporate [sic], actual incorporation of, § 950.4. Exception to bar of [sic] cause of action; A cause of action against a public employee or former public employee is not barred by Section 950.2 if the plaintiff pleads and proves that he did not know or have reason to know, within the period for the presentation of a claim to the employing public entity as a condition to maintaining an action for such injury against the employing public entity, as that period is prescribed by Section 911.2, or by such other claim procedure as may be applicable, that the injury was cause [sic] by an act or omission of the public entity or by an act or omission of an employee of the public entity in the scope of his employment as a public employee." This statement is taken from Government Code section 950.4, which we shall discuss post.

The second amended complaint alleges that Miller sustained damages as a result of defendants' conduct. It also prays for recovery of exemplary damages.

ISSUES

There are two issues on appeal:

1. Does the second amended complaint state facts sufficient to constitute a cause of action?

2. If not, did Miller meet his burden of showing there is a reasonable possibility that the defects in the second amended complaint can be cured by amendment?

DISCUSSION

1. Standard of Review

On appeal from a judgment or order of dismissal following a ruling sustaining a general demurrer, we determine de novo whether the complaint alleges facts sufficient to constitute a cause of action. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 82 (SC Manufactured Homes); Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 633, fn. 3.) "`We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and facts of which judicial notice can be taken. [Citation.] We construe the pleading in a reasonable manner and read the allegations in context. [Citation.]'" (SC Manufactured Homes, at p. 82.) However, we need not accept as true plaintiff's "`"contentions, deductions or conclusions of fact or law."'" (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)

2. The Second Amended Complaint Fails to State Facts Sufficient To Constitute a Cause of Action

"A person must present a timely claim for money or damages to a local public entity before suing the local public entity for money or damages, except in specified circumstances that are not relevant here. (Gov. Code, §§ 905, 905.2, 915, subd. (a), 945.4.)" (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 62-63 (Ovando).) "The purpose of this rule is to afford the public entity an opportunity to investigate the claim and determine the facts, as well as to settle the matter without incurring the expense of litigation." (Janis v. California State Lottery Com. (1998) 68 Cal.App.4th 824, 832.)

The same rule applies to employees of public entities. A cause of action against such an employee is barred if the plaintiff fails to comply with the claims presentation requirements against the public entity employer. (Gov. Code, § 950.2)

A plaintiff suing a local public entity or an employee of a local public entity must allege facts demonstrating either compliance with the claim presentation requirement or an excuse for noncompliance. This is "an essential element of the cause of action." (Ovando, supra, 159 Cal.App.4th at p. 65; accord State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)

Here, the second amended complaint alleges that Miller is required to comply with the claims presentation requirements of Government Code section 900 et seq. It does not allege, however, that Miller filed a claim or otherwise satisfied the requirements.

Miller ostensibly contends that he was excused from the claims presentation requirements pursuant to Government Code section 950.4, which provides: "A cause of action against a public employee or former public employee is not barred by Section 950.2 if the plaintiff pleads and proves that he did not know or have reason to know, within the period for the presentation of a claim to the employing public entity as a condition to maintaining an action for such injury against the employing public entity, as that period is prescribed by Section 911.2 or by such other claims procedure as may be applicable, that the injury was caused by an act or omission of the public entity or by an act or omission of an employee of the public entity in the scope of his employment as a public employee."

Although the second amended complaint repeats much of the language of Government Code section 950.4, it does not allege any facts indicating that Miller did not know, or had no reason to know, that Espinoza or the other individuals who allegedly caused him to suffer injuries, were working as police officers for a public entity at the time of the incident. Moreover, the second amended complaint affirmatively alleges that Miller sustained injuries as a result of the conduct of police officers employed by the Hawthorne Police Department, including Espinoza.3 It further alleges that the police officers announced that they were police officers before entering the apartment of Miller's daughter, and that Miller was placed in a police car. Miller thus knew, or had reason to know, that the police officers who caused him injury were employed by a public entity and were acting within the scope of their employment.

In sum, the second amended complaint does not state facts indicating that Miller complied with the claims presentation requirements or was excused from doing so. The trial court thus correctly sustained defendants' demurrer to the second amended complaint on the ground that it fails to state facts sufficient to constitute a cause of action.

3. Miller Did Not Meet His Burden of Showing There is a Reasonable Possibility of Curing the Defects in the Second Amended Complaint By Amendment

When a general demurrer is sustained the plaintiff must be given leave to amend his or her complaint when there is a reasonable possibility that the defect can be cured by amendment. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) "The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

"To satisfy that burden on appeal, a plaintiff `must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.' [Citation.] The assertion of an abstract right to amend does not satisfy this burden." (Rakestraw, supra, 81 Cal.App.4th at p. 43.) The plaintiff must clearly and specifically state "the legal basis for amendment, i.e., the elements of the cause of action," as well as the "factual allegations that sufficiently state all required elements of that cause of action." (Ibid.)

Here, there is nothing in the record indicating that Miller attempted to amend the second amended complaint in the trial court, though the trial court gave him an opportunity to do so. Miller also failed to explain to this court how he could cure the defects in the second amended complaint, if given leave to amend. Miller thus did not meet his burden of showing that there is a reasonable possibility he can cure the defects in the second amended complaint by further amendment.

DISPOSITION

The judgment of dismissal, dated April 19, 2010, regarding City of Hawthorne, and the order of dismissal dated June 9, 2010, regarding Raul Espinoza, are affirmed. Respondents are awarded costs on appeal.

CROSKEY, Acting P. J. and ALDRICH, J., concurs.