Judge Daniel M. Crowley, Case Number: 24STCV11507, Date: 2024-08-23 Tentative Ruling

Defendant Los Angeles County’s Demurrer to the Complaint is Sustained with Leave to Amend. Plaintiff is granted twenty (20) days to file an amended complaint outlining the statutory basis for liability.

Defendant Los Angeles County (“County”) (“Defendant”) moves demurrers to the Complaint on the grounds that 1) the Complaint fails to allege a viable cause of action against the County; 2) the Complaint fails to allege any statutory liability against the County under Gov. Code § 815(a); and 3) the County is entitled to absolute privilege under Civil Code § 47. (Notice of Mot. p. 2.; C.C.P. § 430.10(e).)

On May 7, 2024, the Plaintiff filed the operative complaint against Los Angeles County Sheriffs’ Department and Kevin Jang, a Law Corporation alleging 1) Negligence, 2) Assault, 3) Negligent infliction of Emotional Distress, 4) Negligence, and 5) Intentional Tort.

On July 11, 2024, the Couty filed the instant demurrer to the Complaint. Plaintiff filed her opposition on August 12, 2024. To date no reply has been filed.

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

The County demurrers to the entire complaint, as alleged against them, because it fails to state a cause of action by not alleging any statutory liability under Gov. Code § 815. (Mot. pp. 3-4.) The County further argues that the conduct alleged is covered under the litigation privilege as provided under Civil Code § 47(b). (Id. pp. 4-5.) In opposition, Plaintiff contends that the County’s immunity claim is not a complete defense as the Complaint claims excessive force. (Opp’n p. 2.)

California Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Govt. Code § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)

Here, the Complaint alleges acts of public employees because the Complaint alleges that the LA County Sheriff's Department dispatched a group of officers to 1313 S. Bronson Ave., Los Angeles, CA, 90019, to execute a writ. (Compl. p. 4.) Defendants demanded that Plaintiff and her adult son leave the premises, brandishing pistols and threatening arrest without showing any legal documents. (Id.) These actions are covered under § 815 because the alleged injury arises from the actions of the LA County Sheriff, who are public employees, while they were engaged in executing a writ. As pleaded, the plaintiff does not provide a statute subjecting the sheriff officers' conduct to liability. Therefore, the Court sustains the demurrer under this basis.

However, the Court does not agree with the County’s contention that 47(b) applies to the sheriff officers' conduct. Civil Code section 47(b) provides an absolute privilege for communications made in any legislative proceeding, in any judicial proceeding, in any other official proceeding authorized by law, or in the initiation or course of any other proceeding authorized by law. (See Civ. Code, § 47(b); Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360.) Section 47(b) bars all tort causes of action except malicious prosecution. (See Hagberg, supra, 32 Cal.4th at 360.) A report made to the police is subject to the privilege of section 47(b). (See Buchanan v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418, 424.) Section 47(b) only applies to communicative acts, not tortious conduct. (Id. at 423.) “The threshold issue in determining whether the litigation privilege applies is whether the defendant’s conduct was communicative or noncommunicative.” (Id.) Here, sheriff officers' conduct was non-communicative because they were executing a writ on Plaintiff. Thus, the privilege under Civil Code § 47(b) would not apply here.

Hon. Daniel M. Crowley

Judge of the Superior Court