Judge: Curtis A. Kin, Case: 20STCV18935, Date: 2023-05-09 Tentative Ruling
Case Number: 20STCV18935 Hearing Date: May 9, 2023 Dept: 72
DEMURRER
Date: 5/9/23 (9:30 AM)
Case: Doris Peniche v. California
Highway Patrol et al. (20STCV18935)
Defendants California Highway Patrol, Melissa Hammond, Matt
Lentz, and Robert Ruiz’s Demurrer to Second Amended Complaint is SUSTAINED IN
PART.
I.
SECOND CAUSE OF ACTION – PUBLIC DISCLOSURE OF
PRIVATE FACTS
Defendant California Highway Patrol (“CHP”) demurs to the
second cause of action for public disclosure of private facts.
“Under the Government Claims Act (Gov.Code, § 810 et seq.),
there is no common law tort liability for public entities in California;
instead, such liability must be based on statute.” (Guzman v. County of
Monterey (2009) 46 Cal.4th 887, 897, citing Gov. Code § 815(a) [““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....”].)
A public entity can only be liable for a common law tort based on vicarious
liability for the acts of its employees. (Ross v. San Francisco Bay Area
Rapid Transit Dist. (2007) 146 Cal.App.4th 1507, 1514, citing Gov. Code §
815.2(a).)
Plaintiff Doris Peniche does not cite any statute pursuant
to which CHP could be held liable. Plaintiff also does not allege any liability
based on vicarious liability. To the extent that plaintiff asserts the second
cause of action against CHP based on the acts of individual defendants Melissa
Hammond, Matt Lentz, and Robert Ruiz, the Court granted judgment on the
pleadings in favor of the individual defendants with respect to public
disclosure of private facts. (1/26/23 Minute Order.) No leave to amend was
granted.
Consistent with foregoing, plaintiff agrees to dismissal of
the second cause of action without prejudice. (Opp. at 4, fn. 1.)
Accordingly, the demurrer to the second cause of action is
SUSTAINED WITHOUT LEAVE TO AMEND.
II.
FOURTH CAUSE OF ACTION – NEGLIGENCE, FIFTH CAUSE
OF ACTION – NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, AND NINTH CAUSE OF
ACTION – NEGLIGENCE PER SE
Defendants contend that the fourth cause of action for
negligence, the fifth cause of action for negligent infliction of emotional
distress, and ninth cause of action for negligence per se fail because
plaintiff did not allege that defendants owed her a duty.
A duty of care can arise through statute or common law. (Sheen
v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 920.) With respect to all
the negligence-based claims, plaintiff maintains that defendants owed her a
duty under CHP’s Privacy Policy. (SAC ¶¶ 38, 43, 60.)
As alleged, the Privacy Policy is neither a statute nor
common law. (See Evid. Code § 669.1 [“A rule, policy, manual, or
guideline of state or local government . . . shall not be considered a statute,
ordinance, or regulation of that public entity . . . unless the rule, manual,
policy, or guideline has been formally adopted as a statute, as an ordinance of
a local governmental entity in this state empowered to adopt ordinances, or as
a regulation by an agency of the state pursuant to the Administrative Procedure
Act. . . .”].) Plaintiff does not allege any facts indicating that the Privacy
Policy was formally adopted as a statute, ordinance, or regulation. Consequently,
the Second Amended Complaint does not allege any facts indicating that the
policy itself had the force of statute or common law.
Plaintiff also alleges that the statutes referenced in the
Privacy Policy also impose a statutory duty not to disseminate plaintiff’s
private sexual information. (SAC ¶¶ 39, 44, 61.) The Information Practices Act
of 1977 (“IPA”), cited in the Privacy Policy, imposes a duty that defendants allegedly
violated. (See Gov. Code § 1798.24(d) [“An agency shall not disclose any
personal information in a manner that would link the information disclosed to
the individual to whom it pertains unless the information is disclosed, as
follows: [¶] (d) To those officers, employees, attorneys, agents, or volunteers
of the agency that have custody of the information if the disclosure is
relevant and necessary in the ordinary course of the performance of their
official duties and is related to the purpose for which the information was
acquired”].) Individuals may bring a civil action against a state agency that
fails to comply with a provision of the IPA. (Id. § 1798.45(c).)
Moreover, although the IPA was not cited until the Second Amended Complaint,
the negligence-based causes of action were asserted in the First Amended
Complaint filed on July 24, 2020, within two years of May 23, 2019 when
plaintiff’s employment was allegedly terminated. (SAC ¶¶ 4, 11.) Based on the
two-year statute of limitations for negligence-based causes of action, the
causes of action were timely asserted. (CCP § 335.1 [two-year statute of
limitations for injury caused by wrongful act of another].)
Based on the foregoing, plaintiff sufficiently alleges that
defendants owed her a duty of care. The demurrer to the fourth, fifth, and
ninth causes of action is OVERRULED.
Ten (10) days to answer.