Judge: Cherol J. Nellon, Case: 21STCV38673, Date: 2023-10-18 Tentative Ruling
Case Number: 21STCV38673 Hearing Date: January 23, 2024 Dept: 14
Case Background
Plaintiffs allege that various LA
Sheriff’s Deputies opened fire on them and their home during the execution of a
search warrant, killing one of them. This case is brought by the relatives of
the decedent, as successors in interest and administrators of his estate, as
well as in their own capacities. Plaintiffs in this case were also present at the
home when and where the incident occurred.
On March 3, 2023, Plaintiffs filed their
First Amended Complaint (“FAC”) for (1) Civil Rights Violations, (2) Assault
and Battery, (3) False Imprisonment, (4) Negligence, (5) Wrongful Death, and
(6) Survival Action against Defendants County of Los Angeles (“County”), Noe
Garcia, David Pantoja, Daisy Rosales, Michael McMorrow, Michael Lopez, Juan
Bendezu, Adonay Molina, Leonel Mejia, Pedro Valencia, Daniel Rodriguez and DOES
10-20, 22-50.
On March 16, 2023, Defendants County,
Noe Garcia, Daisy Rosales, Michael Lopez, Juan Bendezu, Adonay Molina, Leonel Mejia,
Pedro Valencia, filed their joint Answer to the original Complaint.
On April
21, 2023, Plaintiff Miguel Herrera voluntarily dismissed his claims, with
prejudice.
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
25, 2023, Plaintiffs filed their Second Amended Complaint (“SAC”) for (1) Violation
of the Tom Bane Civil Rights Act, (2) Assault, (3) Battery, (4) Negligence, (5)
Wrongful Death – Negligence, and (6) Wrongful Death – Battery against Defendants
County, Noe Garcia, David Pantoja, Daisy Rosales, Michael McMorrow, Michael
Lopez, Juan Bendezu, Adonay Molina, Leonel Mejia, Pedro Valencia, Daniel
Rodriguez and DOES 10-20, 22-50.
On October 18, 2023, this court
sustained Defendants’ unopposed demurrer to the FAC with leave to amend.
On October 25, 2023, Plaintiffs
filed their Third Amended Complaint (“TAC”) for (1)-(2) Violation of the Tom
Bane Civil Rights Act, (3)-(4) Assault, (5)-(6) Battery, (7)-(8) Negligence, and
(9) Wrongful Death against Defendants County, Noe Garcia, David Pantoja, Daisy
Rosales, Michael McMorrow, Michael Lopez, Juan Bendezu, Adonay Molina, Leonel
Mejia, Pedro Valencia, Daniel Rodriguez and DOES 10-20, 22-50.
The first, third, and fifth causes
of action are asserted by Plaintiff Arthur Herrera (acting as administrator of
the Estate of Samuel Herrera Jr.) against Defendants County, David Pantoja,
Daisy Rosales, Michael McMorrow, Michael Lopez, Juan Bendezu, Adonay Molina, and
Leonel Mejia.
The second, fourth, and sixth causes
of action is asserted by Plaintiff Jesus Herrera against Defendants County and
Noe Garcia.
The seventh cause of action is
asserted by Plaintiff Arthur Herrera (acting as administrator of the Estate of
Samuel Herrera Jr.) against Defendants County, David Pantoja, Daisy Rosales,
Michael McMorrow, Michael Lopez, Juan Bendezu, Adonay Molina, Leonel Mejia, Pedro
Valencia, and Daniel Rodriguez.
The eighth cause of action is
asserted by Plaintiff Jesus Herrera against Defendants County, David Pantoja,
Daisy Rosales, Michael McMorrow, Michael Lopez, Juan Bendezu, Adonay Molina, Leonel
Mejia, Pedro Valencia, Daniel Rodriguez, and Noe Garcia.
The ninth cause of action is
asserted by Plaintiffs Jayden Herrera, Samuel Herrera III, and Aylene Roman
(acting as administrator of the Estate of Samuel Herrera Jr.) against
Defendants County, David Pantoja, Daisy Rosales, Michael McMorrow, Michael
Lopez, Juan Bendezu, Adonay Molina, Leonel Mejia, Pedro Valencia, and Daniel
Rodriguez.
Jury trial
is currently set for May 20, 2024.
Instant Request
Defendants County, Noe Garcia, David Pantoja, Daisy
Rosales, Daniel Rodriguez, Michael McMorrow, Michael Lopez Juan Bendezu, Adonay
Molina, Leonel Mejia, and Pedro Valencia, now demur to the TAC on the ground
that it is uncertain and fails to state facts sufficient to constitute causes
of action.
Decision
Defendants’
Request for Judicial Notice is GRANTED.
The
demurrer is OVERRULED.
Discussion
As an
initial matter, Defense has improperly combined what should have been multiple
separate demurrers. The notice of demurrer challenges the entire complaint on
behalf of Defendants Pedro Valencia and Daniel Rodriguez, on the grounds of
immunity. (Notice p. 2:5-8). The notice challenges the entire complaint on
behalf of Defendant Noe Garcia on the grounds that nothing was properly pled
against him. (Id. p. 2:9-10). And the notice challenges the third and fourth
causes of action on behalf of all remaining defendants, on the grounds that
those claims are not properly pled against anyone. (Id. p. 2:11-12).
The supporting
memorandum at first abandons the challenge to the assault claim (Demurrer p.
2:10-11) and then revives the challenge (Demurrer p. 8:26-9:9). The court will
address the argument below. However, 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. (TAC ¶¶ 21-28). Plaintiffs contend that while Valencia did not
fire his weapon at the scene (TAC ¶ 62) 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 ¶¶ 63,
71). The only causes of action asserted against Defendant Valencia are for
negligence.
The TAC
claims that Defendant Daniel Rodriguez (“Rodriguez”) was part of the team that
executed the warrant but did not fire his weapon. (TAC ¶ 62). The only
causes of action asserted against Defendant Rodriguez 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.
Defendants Valencia and Rodriguez argue that Section
821.6 should protect them here because they were 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 do
not arise out of his institution or prosecution of an official proceeding
against them, they arise out of the execution of a warrant during the course 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.
Defendants Valencia and Rodriguez also rely 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 Defendants Valencia and Rodriguez 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.
Noe Garcia
Defendant Noe Garcia (“Garcia”) argues that he cannot be
held liable for shooting Plaintiff Jesus Herrera. He may be correct. But again,
the issues he raises are factual questions, not suitable for resolution on
demurrer.
First, Defendant Garcia argues that his use of force was “objectively
reasonable.” (Demurrer p. 7:1-3). That is a quintessential question of fact.
The court cannot decide this issue at this point. Even the case on which
Defendant Garcia chiefly relies, Brown v. Ransweiler (2009) 171
Cal.App.4th 516, was decided at summary judgment, not demurrer.
Assault
Defendants argue that Plaintiffs cannot plead assault
because they have also pled battery, and assault merges into battery. While the
premise is true, the conclusion doesn’t follow. This is classic alternative
pleading. Plaintiffs have pled that at eight individual defendants collectively
fired no fewer than 40 shots. (TAC ¶ 62). It is not their contention that every
defendant hit the mark. Plaintiffs will maintain the battery claims against the
defendants who may be shown to have shot either Plaintiff Jesus Herrera or the
decedent Samuel Herrera. They will maintain the assault claims against those
who merely tried to shoot them.
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. And the remainder of the
issues raised by Defendants represent factual questions that require evidence
to resolve. Therefore, the demurrer is OVERRULED.