Judge: Cherol J. Nellon, Case: 21STCV36013, Date: 2023-10-18 Tentative Ruling


Case Number: 21STCV36013    Hearing Date: January 23, 2024    Dept: 14

Estate of Samuel Herrera v. County of Los Angeles

Case Background

 

Plaintiffs allege that various LA Sheriff’s Deputies opened fire on them and their home during the execution of a search warrant. The gunfire killed one of them.

 

On September 30, 2021, Plaintiffs filed their Complaint for (1) Civil Rights Violations; (2) Assault and Battery; (3) False Imprisonment; and (4) Negligence against Defendants County of Los Angeles (“County”) and DOES 1-40.

 

On December 9, 2021, Defendant County filed its Answer.

 

On October 4, 2022, Plaintiffs filed nine “Amendments to Complaint” substituting Defendants Noe Garcia, David Pantoja, Daisy Rosales, Michael McMorrow, Michael Lopez, Juan Bendezu, Adonay Molina, Leonel Mejia, and Pedro Valencia in lieu of DOES 1-9, respectively.

 

On December 15, 2022, Defendants Noe Garcia, Daisy Rosales, Michael McMorrow, Juan Bendezu, Adonay Molina, and Leonel Mejia filed their joint Answer.

 

On January 6, 2023, Defendant Pedro Valencia filed his Answer.

 

On February 23, 2023, Defendant David Pantoja filed his Answer.

 

On March 20, 2023, the parties filed a stipulation in which Plaintiffs agreed that (a) Brianna Gonzalez Olveira and Diana Herrera dismissed the claims brought in their capacity as successors in interest to Samuel Herrera and (b) Brianna Gonzalez Olveira and Diana Herrera dismissed their first three causes of action and (c) all Plaintiffs agreed to dismiss the first, second, and third causes of action as to Defendant Pedro Valencia.

 

That left Plaintiffs Eddie Herrera and Karen Olivares to pursue all four causes of action in the complaint, while Plaintiffs Brianna Gonzalez Olveira and Diana Herrera pursue only a negligence claim.

 

On August 11, 2023, this court construed Defendants collective motion for summary adjudication as a motion for judgment on the pleadings, which it granted with leave to amend.

 

On August 21, 2023, Plaintiffs filed their First Amended Complaint (“FAC”) for (1) Civil Rights Violations, (2) Assault and Battery – Wrongful Death, (3) Assault, and (4) Negligence against Defendants County, Noe Garcia, David Pantoja, Daisy Rosales, Michael McMorrow, Michael Lopez, Juan Bendezu, Adonay Molina, Leonel Mejia, Daniel Rodriguez, Pedro Valencia, and DOES 1-40.

 

On October 18, 2023, this court sustained Defendants’ unopposed demurrer to the FAC with leave to amend.

 

On October 23, 2023, Plaintiffs filed their Second Amended Complaint (“SAC”) for (1) Civil Rights Violations, (2) Assault and Battery - Wrongful Death, (3) Negligence – Wrongful Death, (4) Negligence, and (5) Assault against Defendants County, Noe Garcia, David Pantoja, Daisy Rosales, Michael McMorrow, Michael Lopez, Juan Bendezu, Adonay Molina, Leonel Mejia, Pedro Valencia, and DOES 1-40.

 

The first cause of action is asserted by Plaintiffs Eddie Herrera and Karen Olivares against Defendants County, Noe Garcia, and Juan Bendezu.

 

The second cause of action is asserted by Plaintiffs Breanna Oliveira and Dianna Herrera against Defendants County, Daisy Rosales, Michael McMorrow, David Pantoja, Michael Lopez, Adonay Molina, and Leonel Mejia.

 

The third cause of action is asserted by Plaintiffs Breanna Oliveira and Dianna Herrera against Defendants County, Noe Garcia, David Pantoja, Daisy Rosales, Michael McMorrow, Michael Lopez, Juan Bendezu, Adonay Molina, Leonel Mejia, and Pedro Valencia.

 

The fourth cause of action is asserted by Plaintiffs Eddie Herrera and Karen Olivares against Defendants County, Noe Garcia, Juan Bendezu, and Pedro Valencia.

 

The fifth cause of action is asserted by Plaintiffs Eddie Herrera and Karen Olivares against Defendants County, Noe Garcia, and Juan Bendezu.

 

            Jury trial is currently set for May 20, 2024.

 

Instant Pleading

 

            Defendants County, Noe Garcia, David Pantoja, Daisy Rosales, Michael McMorrow, Michael Lopez Juan Bendezu, Adonay Molina, Leonel Mejia, and Pedro Valencia now demur to the SAC on the ground that it is uncertain and fails to state facts sufficient to constitute various causes of action.

 

Decision

 

Defendants’ Request for Judicial Notice is GRANTED.

 

Defendants’ request that this court strike Plaintiffs’ Opposition as untimely filed is DENIED. The Opposition was only 10.5 hours late, and no prejudice has resulted.

 

The demurrer is OVERRULED.

 

Discussion

 

As an initial matter, Defense has improperly combined what should have been three separate demurrers. Defendant Pedro Valencia challenges the entire complaint on the grounds of immunity. (Notice p. 2:10-13). Defendant Noe Garcia challenges the entire complaint on the grounds that nothing was properly pled against him. (Demurrer p. 2:5-8).  The remaining Defendants challenge only the claims filed by Plaintiffs Eddie Herrera and Karen Olivares on the grounds that those plaintiffs have no physical injuries. (Id.). When separate parties make separate arguments about separate causes of action, they should bring separate demurrers. In this one instance, the court will overlook the defect in the interest of moving the case forward.

 

Immunity

 

            Plaintiffs allege that Defendant Pedro Valencia (“Valencia”) was the person in charge of gathering information in advance of the execution of the search warrant, and of the execution itself. (SAC ¶¶ 18-26). While Valencia did not fire his weapon that night (SAC ¶ 58), Plaintiffs contend that he was negligent in obtaining information about the premises and who else was living there, and that this in turn would have led to different tactics and a different outcome. (SAC ¶¶ 59-61, 67). The only causes of action asserted against Defendant Valencia are for negligence.

 

            Government Code § 821.6 provides that:

 

“A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”

 

This provision is intended to protect government employees from “claims of injury based on tortious or wrongful prosecution.” See Leon v. County of Riverside (2023) 14 Cal.5th 910, 921-922. The immunity is “narrow” and “applies only if the conduct that allegedly caused the plaintiff’s injuries was the institution or prosecution of an official proceeding.” Id. at 922.

 

            Defendant Valencia argues that Section 821.6 should protect him here because he was conducting a police investigation, and police investigations are an essential precondition to the institution and prosecution of judicial proceedings. (Demurrer p. 3:17-24). However, in Leon, supra, 14 Cal.5th at 923-924 and 929-931, the California Supreme Court clearly disapproved this argument. Plaintiffs’ claims against Defendant Valencia do not arise out of his institution or prosecution of an official proceeding against them – in fact, there are no official proceedings pending against them – they arise out of his conduct of an investigation. As the Court itself said, “the two things are not the same and cannot plausibly be treated as though they were.” Leon, supra, 14 Cal.5th at 923.

 

            Defendant Valencia also relies on the case of Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, which was not among the cases expressly disapproved by Leon. But Koussaya is different from this case in two significant ways: (1) it was decided at summary judgment, not demurrer, and (2) it did not involve Section 821.6, which is nowhere cited or discussed in the opinion.

 

            At this stage of the proceedings, the court cannot find that Section 821.6 immunizes Defendant Valencia for the errors alleged in the complaint. While the court remains open to persuasion on an evidentiary motion such as summary adjudication, the clear language of Leon appears fatal to that defense.

 

Lack of Physical Injury

 

            Defendants argue that, to maintain any one of their Bane Act, assault, or negligence claims, Plaintiffs Eddie Herrera and Karen Olivares must allege that they were physically injured. But physical injury is not an element of a Bane Act claim (see Civil Code § 52.1), or of assault (see So v. Shin (2013) 212 Cal.App.4th 652, 668-669) or of negligence (see Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202). Defense appears to take the position that there is a special “independent bystander to police action doctrine” which forbids citizens from suing the police unless they have a physical injury. (Demurrer p. 7:14-22).

 

            None of the cases cited support this proposition. The only one which even touches on the issue is Golick v. State of California (2022) 82 Cal.App.5th 1127, 1140, which says that there “may” be a duty toward a third party who “suffers physical injury during a deadly force incident.” As quoted by Defendant (Demurrer p. 8), Golick appears to make a distinction between physical and non-physical injuries. But in context, that is not the issue presented by that case.

 

Golick arose out of a hostage situation in which the police exchanged fire with the hostage-taker, no one was hurt, and the hostage-taker subsequently shot the hostages. Golick, supra, 82 Cal.App.5th at 1134-36. Plaintiff’s theory was that the gun battle “precipitated” the decision to shoot the hostages. Id. The “sole issue” presented on appeal was the existence of a duty for purposes of a negligence claim. Id. at 1137. The Court of Appeal found that the police could not be legally responsible in negligence for the independent choices of the hostage-taker, especially because no one was hurt during the gun battle. Id. at 1143, 1148-51. The relevant point was not whether the injuries were physical, or whether the plaintiffs were bystanders – it was that the only injuries inflicted were not inflicted by the police.

 

Defendants say that they have found no case which “authorizes” a cause of action in a similar factual scenario involving a police officer. No such case is necessary. “[P]ublic employees in California are statutorily liable to the same extent as private persons for injuries caused by their acts or omissions, [and] subject to the same defenses available to private persons...Also, public entities are generally liable for injuries caused by the negligence of their employees acting in the scope of their employment.” Hayes v. County of San Diego (2013) 57 Cal.4th 622, 628-629. There is no special tort rule of non-liability for police interactions. Id. at 629.

 

Finally, Defendants argue that none of these three claims is properly pled. The arguments they raise on that ground represent one possible interpretation of the pleadings. There are others. And the questions at play are fundamentally factual in nature, better addressed at summary judgment than on demurrer.

 

Noe Garcia

 

            Defendant Noe Garcia (“Garcia”) argues that he cannot be held liable on any theory. He may be correct. But again, the issues he raises are factual questions, not suitable for resolution on demurrer.

 

            First, Defendant Garcia argues that he cannot be liable under the Bane Act claim because he was scared and could not have acted with ill intent. But the level and direction of Defendant Garcia’s intent represents a classic factual question. And while being scared may be a “good” or “bad” fact for that analysis, it is certainly not dispositive.

 

            Next, Defendant Garcia argues that he cannot be liable for assault because he did not know Plaintiffs were present. This over-reads the allegations. The clear import of Plaintiffs’ story is that Defendant Garcia, scared and poorly positioned, was startled by the presence of a person where no one was expected, and opened fire. (SAC ¶¶ 21, 25-35). A defendant need not know the precise identity of his victim to be liable for an assault.

 

            Third and last, Defendant Garcia argues that he cannot be liable for the wrongful death of Samuel Herrera because he never fired his gun at Samuel Herrera. But the complaint alleges that he did. (SAC ¶¶ 95(o)-(p)). The questions of who fired at whom, and where, and when, and why, are better resolved by the submission of evidence, at summary judgment or trial.

 

Conclusion

 

            The parties have spent the last several months cleaning up the pleadings and focusing their theories. The work has been well done. It is now time to move on. At the present stage, it appears to the court that Leon v. County of Riverside (2023) 14 Cal.5th 910 prevents the application of Government Code § 821.6 here. The court also fails to see authority for Defense’s “bystander rule” which would bar any claim against a police officer absent a physical injury. And the remainder of the issues raised by Defendants represent factual questions that require evidence to resolve. Therefore, the demurrer is OVERRULED.