Judge: Bruce G. Iwasaki, Case: 24STCV04415, Date: 2024-07-10 Tentative Ruling
Case Number: 24STCV04415 Hearing Date: July 10, 2024 Dept: 58
Judge
Bruce G. Iwasaki
Hearing Date: July
10, 2024
Case Name: Guy T. Reid v. California
Highway Patrol Officer Cindy Nevarez, et al.
Case No.: 24STCV04415
Motion: Demurrer
and Motion to Strike
Moving
Party: Defendant California
Highway Patrol Officer Cindy Navarez
Responding
Party: Plaintiff Guy Reid
Tentative Ruling: The
Demurrer to the Complaint is sustained. The Motion to strike is moot.
Background
This action arises from the alleged
filing of a false police report and the lack of an arrest. On February 22,
2024, Plaintiff Guy T. Reid (“Plaintiff”) filed a Complaint against Defendants
California Highway Patrol Officer Cindy Nevarez (“Defendant”) and Does 1 to 20,
alleging a single cause of action for Negligence.
On May 13, 2024, Defendant filed and
served the instant Demurrer to the Complaint, as well as a Motion to Strike. Defendant
demurs to the sole cause of action in the Complaint for negligence. Defendant
also moves to strike paragraph 44 from the Complaint and paragraph 2 of the
prayer for relief therein, which seeks mandatory injunctive relief.
On July 1, 2024, Plaintiff filed and
served an opposition to the demurrer, as well as an opposition to the motion to
strike.
Plaintiff’s respective oppositions to
the demurrer and motion to strike were filed and served late. The oppositions
should have been filed and served no later than nine court days prior to the
hearing. (Code Civ. Proc., § 1005, subd. (d).) Although filed and served late,
the Court exercises its discretion and will consider the untimely opposition
briefs. (Cal. Rules of Court, Rule 3.1300(d).)
As of July 5, 2024, no reply brief
has been filed.
Judicial Notice
The Court grants
Defendant’s request for judicial notice. (Evid. Code §§ 452, 453.)
Legal Standard for Demurrers
A demurrer is an objection to a
pleading, the grounds for which are apparent from either the face of the
complaint or a matter of which the court may take judicial notice.¿(Code Civ.
Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d
311, 318.)¿The purpose of a demurrer is to challenge the sufficiency of a
pleading “by raising questions of law.”¿(Postley v. Harvey (1984) 153
Cal.App.3d 280, 286.)¿“In the construction of a pleading, for the purpose of
determining its effect, its allegations must be liberally construed, with a
view to substantial justice between the parties.” (Code Civ. Proc., § 452.)¿The
court “ ‘ “treat[s] the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or law . . . .”
’ ”¿ (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)¿In applying
these standards, the court liberally construes the complaint to determine
whether a cause of action has been stated.¿(Picton v. Anderson Union High
School Dist. (1996) 50 Cal.App.4th 726, 733.)
Where a demurrer is sustained, leave
to amend must be allowed where there is a reasonable possibility of successful
amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The
burden is on the plaintiff to show the court that a pleading can be amended
successfully. (Ibid.) “If there is any reasonable possibility
that the plaintiff can state a good cause of action, it is error to sustain a
demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245.)
Negligence cause of action.
Defendant argues that the Complaint
fails to allege compliance with the Government Claims Act and thus fails to
state a cause of action against Defendant. Additionally, Defendant contends
that the Complaint is also barred by various government immunities.
Pertinent Allegations of the
Complaint
The Complaint alleges that the
incident took place at “36052U Sierra Hwy., Palmdale, CA 93550 where the
Defendant appeared.” (Complaint, ¶ 6.) Plaintiff was driving a Blue 2008 Ford
Escape. (Complaint, ¶ 7.) Plaintiff seeks a settlement from Defendant and
Plaintiff alleges that he has been damaged in multiple ways because Defendant
filed a false report, and negligently took advantage of him. (Complaint, ¶¶ 8,
10.) According to the Complaint, “Plaintiff has been further damaged by having
false information report [sic] and lack of arrest of Armon Grigoryan.”
(Complaint, ¶ 11.)
Plaintiff alleges that Armon
Grigoryan (“Grigoryan”), who is a tow truck driver, was driving a tow truck in
which a tire fell off of a Maserati being towed. (Complaint, ¶¶ 14-16.) Plaintiff
alleges that Defendant arrived at the scene of the incident at 11:34 pm, which
is “[a]fter . . . the tire falling off the Maserati.” (Complaint, ¶ 14.)
Defendant asked Plaintiff what happened, and Defendant began writing the
report. (Complaint, ¶ 15.) The Complaint
alleges that in the Arrest—Investigation Report (the “Report”), Defendant made
a false statement that Plaintiff walked to the back of the tow truck to take
pictures of the vehicle in tow at which point Grigoryan drove away. (Complaint,
¶ 17.) Plaintiff alleges that Mr. Grigoryan did not want to exchange
information, became belligerent, and accelerated towards Plaintiff while
Plaintiff was taking pictures of the tow truck’s front license plate.
(Complaint, ¶¶ 18-19.) Plaintiff had to jump out of the way of the tow truck
that was coming towards him and Mr. Grigoryan proceeded to leave the scene of
the incident. (Complaint, ¶ 20.)
Plaintiff alleges that Defendant
wrote in the Report that there were no independent witnesses to the incident,
which Plaintiff alleges is false. (Complaint, ¶ 21.) Plaintiff alleges that the
entire Report is false. (Complaint, ¶¶ 21-22; Ex. B.) Plaintiff then sets forth
the alleged numerous false statements in the Report concerning the incident.
(Complaint, ¶¶ 23-35; Ex. B.) Plaintiff alleges that Mr. Grigoryan’s tow truck
caused the incident and Defendant did not check the Maserati’s tire.
(Complaint, ¶ 38.) Plaintiff alleges that Defendant should have cited Mr.
Grigoryan but failed to cite Mr. Grigoryan. (Complaint, ¶ 41.)
Plaintiff’s Failure to Comply with
the Government Claims Act
“[A] cause of action against a public
employee or former public employee for injury resulting from an act or omission
in the scope of his employment as a public employee is barred if an action
against the employing public entity is barred . . . .” (Gov. Code § 950.2.) “A
cause of action for such injury may not be maintained against the public
employee or former public employee whose act or omission caused such injury
until the claim has been rejected, or has been deemed to have been rejected, in
whole or in part by the public entity.” (Gov. Code, § 950.6, subd. (a).)
“Timely claim presentation is not
merely a procedural requirement, but rather, a condition precedent to
plaintiff’s maintaining an action against defendant, and thus, an element of
the plaintiff’s cause of action.” (K.J. v. Arcadia Unified School Dist.
(2009) 172 Cal.App.4th 1229, 1238) “Complaints that do not allege facts
demonstrating either that a claim was timely presented or that compliance with
the claims statute is excused are subject to a general demurrer for not stating
facts sufficient to constitute a cause of action.” (Rubenstein v. Doe No. 1 (2017)
3 Cal.5th 903, 906.) “For the purpose of the claim statute, a public employee
is acting in the course and scope of employment when he is engaged in work he
was employed to perform or when the act is an incident to his duty and was
performed for the benefit of his employer and not to serve his own purposes or
conveniences.” (Neal v. Gatlin (1973) 35 Cal.App.3d 871, 875.)
The Court finds that Defendant is
being sued in her capacity as an officer with the California Department of
Highway Patrol. Plaintiff, however, has failed to allege that he presented a
timely claim to the California Department of Highway Patrol. In fact,
Defendant’s Request for Judicial Notice shows that Plaintiff did not present a
claim to the California Department of Highway Patrol. (Defendant’s RJN at Ex.
C.)
While Plaintiff purports to present evidence
of a claim for damages in connection with the opposition, the Court notes that
such purported claim is not authenticated via a declaration and appears to have
been filed in May 2024. (Opposition at Ex. A.) A claim for damages must be
presented to a government entity no later than six months after the cause of
action accrues. (K.J., supra, 172 Cal.App.4th 1229, 1238.) Even
if Plaintiff’s purported claim attached to the opposition had been a proper
subject of judicial notice, on its face, the Court would have found such claim
to be untimely. Here, the Report was authored in April of 2023 and Plaintiff’s
purported claim was not filed until May 2024. (Opposition at Ex. A.) As such, the
Court finds that Plaintiff has not made a showing that he presented a timely government
claim. Additionally, the Court notes that the purported claim was filed with the
County of Los Angeles even though the County of Los Angeles is not a party to
this action. (Opposition at Ex. A.)
The Court therefore finds that
Plaintiff has failed to allege compliance with the Government Claims Act and
has not stated a cause of action for negligence.
The Complaint is Barred by Various Government
Immunities
Defendant contends that the negligence
cause of action is barred by Government Code sections 820.2, 821, 822.2, 845,
and 846.
Government Code section 820.2
provides that “[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.” (McCarthy
v. Frost (1973) 33 Cal.App.3d 872, 875.) “A decision to arrest, or to take
some protective action less drastic than arrest, is an exercise of discretion
for which a peace officer may not be held liable in tort.” (Ibid.) A
failure to investigate is conduct that is immunized from liability. (Ibid.)
“Discretionary immunity under section 820.2 has been found to apply to many
areas of police work.” (Conway v. County of Tuolumne (2014) 231
Cal.App.4th 1005, 1015.) Courts have found immunity under section 820.2 for the
following acts: (1) the decision to pursue a fleeing vehicle; (2) the decision
to investigate or not investigate a vehicle accident; (3) the failure to make
an arrest or to take some protective action less drastic than arrest; (4) the decision
whether to use official authority to resolve a dispute; and (5) the decision
whether to remove a stranded vehicle. (Ibid.)
Here, the Court finds that the
negligence cause of action is not entirely barred by Government Code section
820.2. The Complaint alleges that Defendant failed to arrest or cite Mr.
Grigoryan and wrote a false incident report. (Complaint, ¶¶ 10-11, 41.) Thus,
while the failure to arrest or investigate is immunized conduct under Government
Code section 820.2, the preparation of a false incident report is not. As such,
the Court finds that section 820.2 does not defeat the entire negligence cause
of action.
The Court will now address whether
Government Code sections 821, 845, and 846 bar the negligence cause of action.
Government Code section 821 provides
that “[a] public employee is not liable for an injury caused by his adoption of
or failure to adopt an enactment or by his failure to enforce an enactment.”
(Gov. Code § 821.) “Neither a public entity nor a public employee is liable for
failure to establish a police department or otherwise provide police protection
service or, if police protection service is provided, for failure to provide
sufficient police protection service.” (Gov. Code, § 845.) According to section
846, “[n]either a public entity nor a public employee is liable for injury
caused by the failure to make an arrest or by the failure to retain an arrested
person in custody.”
Here, the Court finds that the entire
negligence cause of action is not barred by Government Code sections 821, 845,
or 846. While the Complaint does allege actions such as the failure to
investigate, failure to arrest, and failure to cite (Complaint, ¶¶ 10-11, 41),
the crux of the Complaint is Defendant writing a false investigation report. The
act of Defendant allegedly writing a false incident report is not immune from
liability under sections 821, 845, and 846.
The Court will now address whether
Government Code section 822.2 bars the negligence cause of action.
Section 822.2 provides that “[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 malice.” (Gov. Code, § 822.2.) “[T]he immunity afforded by Government Code
section 822.2 applies unless, in addition to the essentials of common law
deceit, a public employee is motivated by corruption or actual malice, i.e., a
conscious intent to deceive, vex, annoy or harm the injured party.” (Curcini
v. County of Alameda (2008) 164 Cal.App.4th 629, 649.)
Plaintiff has not alleged with
sufficient facts that Defendant was motivated by corruption or actual malice.
Accordingly, as pleaded, the Defendant is immunized from the alleged authoring
of a false investigation report under Government Code section 822.2.
As such, the Court finds that the
alleged act of Defendant of making false statements in an investigation report
is immunized from liability under Government Code section 822.2. Given that the
acts of failing to investigate, failure to arrest, and failing to cite are
immune from liability under Gov. Code §§ 820.2, 821, 845, and 846, as a whole,
the alleged wrongs in the Complaint are all immune from liability.
Plaintiff Failed to Plead the
Elements of a Negligence Cause of Action
Although not raised by Defendant, the
Court finds that Plaintiff has not pleaded the elements required to state a
cause of action for negligence.
In order to state a claim for
negligence, Plaintiff must allege the elements of (1) “the existence of a legal
duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in
an injury.” (McIntyre v.
Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “[T]o state a cause
of action against a public entity, every fact material to the existence of its
statutory liability must be pleaded with particularity.” (Lopez v. Southern
Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)
Here, Plaintiff has failed to allege
the elements of duty or breach. (Complaint, ¶¶ 12-43.) Thus, on this
independent ground, the cause of action for negligence fails.
Thus, based on Plaintiff’s failure to plead the filing of
a timely government claim, the applicability of various government immunities,
and failure to state a legally sufficient cause of action for negligence, the
demurrer to the first cause of action is sustained.
Legal Standard for Motions to
Strike
“The court may, upon a motion made pursuant to Section
435, or at any time in its discretion, and upon terms it deems proper: (a)
Strike out any irrelevant, false, or improper matter inserted in any pleading.
(b) Strike out all or any part of any pleading not drawn or filed in conformity
with the laws of this state, a court rule, or an order of the court.”¿(Code
Civ. Proc. § 436.) “Immaterial” or “irrelevant” matters include allegations not
essential to the claim, allegations neither pertinent to nor supported by an
otherwise sufficient claim or a demand for judgment requesting relief not
supported by the allegations of the complaint. (Code Civ. Proc. § 431.10,
subds. (b)(1)-(3).)
Based on the Court’s ruling as to the negligence cause of
action, which is the only cause of action alleged in the Complaint, the motion
to strike is moot. There is no longer a negligence cause of action to make
allegations of malicious, knowing, oppressive intentional, and reckless
conduct. Moreover, there is no operative cause of action upon which to seek
mandatory injunctive relief.
Conclusion