Judge: Colin Leis, Case: 21STCV41376, Date: 2022-09-19 Tentative Ruling

Case Number: 21STCV41376    Hearing Date: September 19, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendants County of Los Angeles, George Gascon, Karen Thorp, Peter Cagney and Cesar Rodriguez

RESPONDING PARTY:       Plaintiffs Gerald Wachel and Gina Wachel

Defendants County of Los Angeles, George Gascon, Karen Thorp, Peter Cagney and Cesar Rodriguez’s Demurrer to Plaintiffs’ Second Amended Complaint

The court considered the moving papers, opposition, and reply filed in connection with this motion.

BACKGROUND

            Plaintiffs Gerald Wachel and Gina Wachel filed this action on November 19, 2021 against, among others, the County of Los Angeles (the “County”) and George Gascon, the District Attorney of the County of Los Angeles (“Gascon”). The operative Second Amended Complaint (“SAC”) was filed on July 18, 2022, and asserts causes of action for (1) malicious prosecution, (2) abuse of process, (3) negligence, and (4) intentional infliction of emotional distress. This lawsuit arises out of an incident that occurred on or about January 8, 2021, involving Plaintiffs’ pet cat and a dog belonging to Plaintiffs’ neighbor, Ty Labbe. Plaintiffs allege that Mr. Labbe’s dog attacked their cat, and in response, Mr. Wachel grabbed, kicked, and tossed the dog back into Mr. Labbe’s yard. Mr. Labbe then filed a police report against Mr. Wachel for animal cruelty. Although the La Verne Police Department investigated the matter, Mr. Labbe took his case directly to the District Attorney’s office, which resulted in the DA’s office filing criminal charges against Plaintiffs on March 12, 2021.

The County, Gascon, and the individual Deputy District Attorney defendants (Karen Thorp, Peter Cagney, and Cesar Rodriguez) (collectively, the “DA Defendants”) now demur to each cause of action of the SAC.

LEGAL STANDARD

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.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

DISCUSSION

The court previously sustained the DA Defendants’ demurrer to the First Amended Complaint on the basis of uncertainty. The court finds the defects as to Gascon, Cagney, and Thorp remain. There are no allegations of wrongful conduct undertaken by any of these individual defendants, nor are there facts showing a connection between Gascon, Cagney, or Thorp to Rodriguez’s allegedly wrongful conduct.

The court previously sustained the DA Defendants’ demurrer to the First Amended Complaint on the basis of government immunity. The court found that Plaintiffs’ claims against Gascon and the other individual DA defendants were based on their initiation of criminal proceedings against Plaintiffs. Because public employees are not liable for injuries caused by “instituting or prosecuting any judicial or administrative proceeding within the scope of [their] employment, even if [they] act[] maliciously and without probable cause,” Plaintiffs’ claims were barred. (Gov. Code, § 821.6.) The court further found that the County was also immune from liability because there was no dispute that (1) the individual defendants are County employees, (2) Plaintiffs’ alleged injuries were caused by  the institution or prosecution of a judicial or administrative proceeding, and (3) the conduct of the employees at issue was within the scope of their employment. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209; Gov. Code, § 815.2.)

            Now, Plaintiffs have amended their complaint to allege that Defendant Cesar Rodriguez (“Rodriguez”) was the individual at the DA’s office who made the decision to file the criminal charges against Mr. Wachel, and that he is not immune from liability because he was not acting within the scope of his employment when he filed those charges. (E.g., SAC, ¶¶ 34, 44.) Specifically, Plaintiffs allege that Rodriguez initiated the criminal charges as a personal favor to Mr. Labbe despite evidence exculpating Mr. Wachel and despite a special directive emanating from the DA’s office prohibiting the filing of charges for disturbing the peace absent unusual circumstances like a repeat offender. (SAC, ¶¶ 41, 47.) The court finds that these allegations do not establish that Rodriguez was acting outside the scope of his employment by filing criminal charges against Mr. Wachel. As argued by the DA Defendants, “an employee’s tortious act may be within the scope of employment even if it contravenes an express company rule and confers no benefit to the employer.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004.) The test is typically whether an employee “substantially deviates from the employment duties for personal purposes.” (Id. at p. 1005 [emphasis in original].) Here, Rodriguez’s conduct of filing criminal charges is not a substantial deviation from his employment duties, even if there was some personal motivation behind the charges and even if filing the charges violated an internal office directive. Plaintiffs’ attempt to hold the remaining defendants vicariously liable for Rodriguez’s conduct also cuts against the argument that he substantially deviated from his employment duties. In any event, because the court finds that Rodriguez is immune from liability, and because the only basis on which Plaintiffs seek to impose liability against the remaining DA Defendants flows from Rodriguez’s conduct, the court also finds that the DA Defendants are immune from liability.

Plaintiffs request leave to amend. The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allege in the SAC that Rodriguez asked Detective David Chavira and Lieutenant Cory Leeper of the La Verne Police Department “to do things that were illegal” and that they refused the “illegal requests.” (SAC, ¶ 36.) Plaintiffs either have, or soon will, be deposing Chavira and Leeper whom Plaintiffs believe may provide testimony to overcome prosecutorial immunity. Accordingly, Plaintiffs’ request for leave to amend passes muster.

CONCLUSION

Based on the foregoing, the court sustains the DA Defendants’ demurrer to the SAC, with leave to amend.

The court orders Plaintiffs to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the court orders the DA Defendants to file and serve a proposed judgment of dismissal within 30 days of the date of this order.

The DA Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  September 19, 2022

_____________________________

Colin Leis

Judge of the Superior Court