Judge: Carolyn M. Caietti, Case: 37-2020-00008446-CU-PO-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2020-00008446-CU-PO-CTL MITCHELL VS CHULA VISTA PAROLE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Paul Bennett and the California Department of Corrections and Rehabilitation, specially appearing for Defendant 'Chula Vista Parole,' Demurrer to Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading 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.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Plaintiff's Second Amended Complaint (SAC) alleges, on May 28, 2016, Defendants did not enforce a required protection order and, while under 'parole agents supervision, the individuals named in that order violated that order multiple times.' Plaintiff sustained injury after 'being assaulted by that individual due to their lack of discretion and wilful misconduct.' Defendants' first demur on grounds Plaintiff fails to state a claim because Defendants are immune from liability under California Government Code section 845.8, which provides '[n]either a public entity nor a public employee is liable for: (a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release; (b) Any injury caused by: (1) An escaping or escaped prisoner; (2) An escaping or escaped arrested person; or (3) A person resisting arrest. Immunity under Government Code section 845.8 is absolute and broad, immunizing, 'all acts within the ambit of release procedures...from tort liability.' (State of California v. Superior Court (1974) 37 Cal.App.3d 1023, 1027-28; see also, Brenneman v. State of California (1989) 208 Cal.App.3d 812, 820-821 (ruling Gov.

Code § 845.8(a), 'bars any state liability for negligent supervision of a released prisoner').) In opposition, Plaintiff does not address section 845.8 nor maintain section 845.8 is inapplicable to the facts here. Based on the argument and authority provided, Defendants are immune from liability, thus, the SAC fails to state sufficient facts.

Calendar No.: Event ID:  TENTATIVE RULINGS

2974477  47 CASE NUMBER: CASE TITLE:  MITCHELL VS CHULA VISTA PAROLE [IMAGED]  37-2020-00008446-CU-PO-CTL Plaintiff also does not request leave to amend nor identify how this defect can be cured. (Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150 (explaining the plaintiff has the burden of proving an amendment would cure the legal defect); Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 608 (holding trial court did not abuse its discretion by sustaining the county's demurrer without leave to amend as the plaintiff could not overcome the governmental immunity bar on the facts of the case).) On this ground, the demur is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants second grounds for demurrer is that Plaintiff fails to state a claim under the Bane Act because Plaintiff does not allege threats, intimidation, or coercion necessary to support a claim. Both causes of action are based on the Bane Act, which provides for liability for the interference or attempted interference with a person's constitutional rights 'by threat, intimidation, or coercion.' (Civ. Code, § 52.1(b).) To plead a cause of action under the Bane Act, the plaintiff must show '(1) intentional interference or attempted interference with a state or federal constitutional or legal right, and (2) the interference or attempted interference was by threats, intimidation or coercion.' (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67.) Here, there are no facts reflecting threats, intimidation, or coercion by Defendants and Plaintiff's opposition on this point is unclear. Plaintiff does not request leave to amend, nor identify how this defect can be cured. On this ground, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

These grounds alone are sufficient to sustain the demurrer without leave to amend, making the other grounds identified by Defendants moot.

Concluding Orders Defendants are ordered to prepare and submit a judgment of dismissal by December 22, 2023.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Defendant is also ordered to serve notice of the Court's final order on all appearing parties by December 12, 2023.

Calendar No.: Event ID:  TENTATIVE RULINGS

2974477  47