Judge Cherol J. Nellon, Case 19STCV44330 2023-04-10 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.    If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.

            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court.

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Defendant LA County Jail Sheriff’s Demurrer

Having considered the moving papers, the Court rules as follows.

On December 11, 2019, Plaintiff Victor Achisim (“Plaintiff”) filed this action against Defendant LA County Jail Sheriff (“Defendant”) for intentional tort.

On July 13, 2021, Plaintiff filed the FAC.

On March 6, 2023, Defendant filed a Demurrer to be heard on April 10, 2023.

There is no currently scheduled trial date.

Defendant requests the Court sustain the demurrer as the complaint fails to comply with the requirements of the California Tort Claims Act, is barred by the statute of limitations, fails to state facts sufficient to constitute a cause of action, and on the basis that Defendant is immune from liability.

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

“Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employee or any other person.” (Gov. Code § 815.) A public entity’s direct liability must be statutorily based, not based on common law. (Gov. Code § 815; Munoz v. City of Palmdale (1999) 75 Cal.App.4th 367, 369- 370.) In asserting a cause of action against a public entity, “every fact material to the existence of its statutory liability must be pleaded with particularity.” (Gates v. Superior Court (1995) 32 Cal.App.4th 481, 494.)

Plaintiff alleges that he was arrested by Defendant on September 17, 2017, and subsequently taken to a LA County jail. The following day, Defendant’s employees allegedly tased, strangled, pepper-sprayed and otherwise physically attacked. He alleges that he was “left in the LA County Jail for more than one year without any official charge against [Plaintiff].”

The Court first addresses the issue of the statute of limitations. Under CCP § 335.1, the statute of limitations for personal injury is 2 years from the date of injury; Plaintiff filed this action approximately 2 months after the alleged injury. However, Plaintiff’s complaint appears to allege that he was incarcerated at the time of the incident and for 1 year following the accrual of the claim. Under CCP § 352.1, an imprisoned person, serving a sentence less than a term of life, has their action tolled for a period not to exceed 2 years. With Plaintiff’s allegation of incarceration, Plaintiff’s action may not be barred by statute. However, as currently written, the complaint is unclear as to the timeline and charges, among other issues.

Plaintiff has not actually listed the applicable causes of action and the Court is unsure as to what causes are being asserted against Defendant. In the initial complaint, Plaintiff checked the box for “intentional tort,” which encapsulates multiple different causes of action such as battery, assault, false imprisonment, and others. Plaintiff did not clarify which intentional tort. Plaintiff offered no further explanation in the FAC, providing only a set of factual allegations with no causes of action or prayer for relief. It is unclear from the factual allegations which intentional torts are applicable as there are potentially multiple being alleged.

Plaintiff also has failed to articulate proper causes of action against Defendant as a government entity. Except as articulated by statute, a government entity is not liable for any injury arising from the act or omission of an employee. Plaintiff here has not cited any statutory basis for any claims against Defendant and thus has failed to bring forward claims subject to litigation. Plaintiff also failed to assert that he complied with the requirement of the Tort Claims Act, a requirement in bringing a claim against a government entity.