Judge Curtis A. Kin, Case 22STCV26973 2023-05-04 Tentative Ruling

Judge: Curtis A. Kin, Case: 22STCV26973, Date: 2023-05-04 Tentative Ruling

Case Number: 22STCV26973 Hearing Date: May 4, 2023 Dept: 72

DEMURRER

Date: 5/4/23 (9:30 AM)

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

TENTATIVE RULING:

Defendant Los Angeles County Sheriff’s Department’s UNOPPOSED Demurrer to Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant Los Angeles County Sheriff’s Department’s (“LASD”) requests for judicial notice are DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)

Defendant LASD, a public entity, contends that plaintiff Emily Diane Leatherman fails to plead a statutory basis for liability. In a caption page contained within the Complaint, plaintiff purports to assert causes of action for mental harassment, physical harassment, emotional and psychological harassment, stalking, extortion, forcing action by illegal means, cyber bullying, and online harassment. However, “[u]nder 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....”].) Plaintiff does not allege any statute under which LASD could be held liable.

Defendant also presents three statutes which apparently render it immune from plaintiff’s lawsuit. With respect to all three statutory bases for liability, the Complaint is based on defendants’ alleged failure to make a report concerning or investigate plaintiff’s claims, including claims that she had been sexually trafficked or raped. (See Complaint, “Claim for Damages to Person or Property.”)

First, “[a] public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” (Gov. Code § 818.2.) “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.) Law enforcement agencies have discretion in deciding whether to arrest or prosecute an offender. (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”].) Under Government Code § 818.2, LASD cannot be held liable for exercising its discretion concerning the enforcement of any law. Plaintiff fails to allege the breach of any mandatory duty for which LASD could be held liable.

Second, under Government Code § 845, “[n]either a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” Under this statute, LASD cannot be held liable for failure to adequately protect plaintiff. (See Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 590 [under Government Code § 845, “[A] public entity is not required to provide police protection….”].)

Third, under Government Code § 846, “[n]either a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody.” Under this statute, LASD cannot be held liable for its purported failure to make a report or investigate plaintiff’s claims regarding criminal activity.

Despite proper service of the demurrer and notice of continuance of the motion, plaintiff did not oppose the demurrer. Plaintiff has not explained any statutory basis for liability against LASD or why the statutory bases for immunity asserted by LASD are inapplicable. 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 Los Angeles County Sheriff’s Department shall submit a proposed judgment of dismissal.