Judge Curtis A. Kin, Case 22STCV26973 2023-01-19 Tentative Ruling

Judge: Curtis A. Kin, Case: 22STCV26973, Date: 2023-01-19 Tentative Ruling

Case Number: 22STCV26973 Hearing Date: January 19, 2023 Dept: 72

DEMURRER

Date: 1/19/23 (9:30 AM)

Case: Leatherman v. Sheriff Alex Villanueva & LA Cty. Sherrifs Dept. (22STCV26973)

TENTATIVE RULING:

Defendant Sheriff Alex Villanueva’s Demurrer to Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant’s requests for judicial notice are GRANTED, pursuant to Evidence Code § 452(g).

As a preliminary matter, the Court requests clarification as to whether “LA County Sherrifs Deptment” is a defendant separate and apart from Villanueva.

Defendant maintains that plaintiff Emily Diane Leatherman attempted to report the alleged crimes to a police station in Valley Village, which is in the City of Los Angeles. Defendant argues that there is no showing that Villanueva undertook the policing of the City of Los Angeles, or any of the states other than California that were mentioned in plaintiff’s allegations.

However, in the Claim for Damages to Person or Property (“Claim for Damages”) attached as the second page of the Complaint, plaintiff alleges that Villanueva himself, in addition to other police officers, refused to take a report or investigate when plaintiff attempted to report that she had been sexually trafficked or raped. Plaintiff also alleges that the sexual trafficking occurred again in the last two years, which would not have happened had Villanueva made a full report and investigated her allegations.

There is no allegation in the Claim for Damages that plaintiff reported the claims to a police station in Valley Village. Nor is there any allegation in the Claim for Damages regarding where the sexual trafficking or rape occurred. “[A] demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.” (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.) On the face of the Complaint, the crimes could have occurred in a place policed by the Los Angeles County Sheriff’s Department. Because plaintiff alleges that Villanueva himself refused the taking of reports, plaintiff sufficiently alleges direct liability against Villanueva.

Even if the crimes that plaintiff wanted to report occurred in places under Villanueva’s control, “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code § 820.2.) “The statutes declaring immunity for damages caused by law enforcement failures encompass only discretionary law enforcement activity [Citation]. They have not barred liability when breach of a mandatory law enforcement duty was discerned.” (Roseville Community Hosp. v. State of California (1977) 74 Cal.App.3d 583, 587.)

“[T]here is no duty owed by police to individual members of the general public because ‘a law enforcement officer's duty to protect the citizenry is a general duty owed to the public as a whole.’ [Citation.] Therefore, absent a special relationship or a statute creating a special duty, the police may not be held liable for their failure to provide protection.” [Citation.]” (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1185, disapproved of on other grounds by B.H. v. County of San Bernardino (2015) 62 Cal.4th 168; see also Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 266 [“[A peace] officer has discretionary immunity against a third party’s claim for his failure to arrest an offender”].)

Despite proper service, plaintiff did not oppose the demurrer. Plaintiff has not explained any specific relationship or statutory duty obligating Villanueva to investigate or take a report on her allegations. Because plaintiff has failed to show the existence of a mandatory, as opposed to a discretionary duty, on the part of Villanueva, the demurrer is SUSTAINED.

By failing to file an opposition, plaintiff did not meet her burden in demonstrating how she would amend the Complaint. (Silva v. Block (1996) 49 Cal.App.4th 345, 349, citing Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal. App. 4th 799, 808 [“When a demurrer is sustained without leave to amend, the burden of proving a reasonable possibility that the defect can be cured by amendment is on the plaintiff”].) To carry her burden, plaintiff must show in what manner she can amend her Complaint and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348-49.)

Accordingly, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Within five (5) court days hereof, defendant Sheriff Alex Villanueva is ordered to submit a proposed judgment of dismissal.