Judge: Cherol J. Nellon, Case: 22STCV08113, Date: 2023-08-08 Tentative Ruling

Case Number: 22STCV08113    Hearing Date: August 8, 2023    Dept: 14

Instant Pleading

Defendant City now demurs to the 4AC on the grounds that it fails to state facts sufficient to support any cause of action and is uncertain.

Decision

            The demurrer is SUSTAINED, without leave to amend.

            The Jury Trial and Final Status Conference dates are VACATED, as the result on the demurrer leaves no served defendant in this case.

            The court sets an OSC re: Failure to File Proof of Service as to the Perrys for November 16, 2023, at 8:30 am.

Discussion

            On August 25, 2022, this court sustained a demurrer filed by the same parties in response to the First Amended Complaint. A lengthy minute order was entered and mailed out on that date containing the court’s detailed, written opinion. A reformatted and signed copy, containing the exact same language, was also filed separately on September 16, 2022.

            On September 14, 2022, Plaintiff filed his Second Amended Complaint. The only substantive change between the two was that Plaintiff added, at the end of each cause of action, a conclusory sentence alleging that Defendant City is vicariously liable for the Plaintiff’s injury. (Second Amended Complaint ¶¶ 63, 72, 78, 86, 93, 99, 105, 114). The court apparently considered this an inadequate response to its orders and again sustained Defendant City’s demurrer.

            On December 27, 2022, Plaintiff submitted his Third Amended Complaint. This version was subject to a motion for sanctions brought by Defendant City under Code of Civil Procedure § 128.7, which this court granted on February 28, 2023.

            On March 21, 2023, Plaintiff filed his Fourth Amended Complaint (“4AC”), which is actually now the fifth version of his pleading. Although the 4AC is more concise and less cluttered than the previous versions, it still retains substantially the same defects.

The cause of action for “Denial of Civil Rights” still “tosse[s] together Penal Code violations, the 5^th Amendment of the federal constitution, public contracting provisions of our state constitution, the Unruh Act, and the Ralph Act.” (Order filed September 16, 2022 p. 3; see 4AC ¶¶ 14-17 and 31-47). And the cause of action for Intentional Infliction of Emotional Distress still fails to plead its way through the governmental immunity statutes by identifying an employee who did something wrong, and for whose acts the city might be liable under Government Code § 815.2. (Order filed September 16, 2022 p. 2-3; see 4AC ¶¶ 9, 12, 42-47).

The Opposition to the demurrer makes no attempt to address the specific arguments raised by Defendant City. It simply cites to the general law governing demurrers and quotes the 4AC.

Code of Civil Procedure § 430.41(e)(1) provides that a complaint “shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.” No such offer has been made, or even attempted, here.

Conclusion

            The Fourth Amended Complaint still suffers from the same defects identified by this court in the First Amended Complaint. After three demurrers and a motion for sanctions, there is no probability that Plaintiff will be able to properly state a claim. Therefore, the demurrer is SUSTAINED without leave to amend.

            Because this removes the only served defendant from the case, which has never been at issue, the Jury Trial and Final Status Conference dates are VACATED.

            The court sets an OSC re: Failure to File Proof of Service as to the Perrys for November 16, 2023, at 8:30 am.