Judge: David B. Gelfound, Case: 23CHCV01625, Date: 2024-09-20 Tentative Ruling

Case Number: 23CHCV01625    Hearing Date: September 20, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER WITH MOTION TO STRIKE

Motion filed: 7/1/24

MOVING PARTY: Defendant City of Los Angeles (as to the Demurrer) and Defendants City of Los Angeles, Officer Sgrano 44738, and Officer Stebbins 41090 (as to the Motion to Strike)

RESPONDING PARTY: Plaintiff Guadalupe Rodriguez

NOTICE: OK.

RELIEF REQUESTED: An order to grant Defendant’s demurrer to Causes of Action against City of Los Angeles in Plaintiff’s Complaint, and to strike portions of the Complaint pertaining to punitive damages.

TENTATIVE RULING: The demurrer is OVERRULED. The motion to strike is GRANTED.

BACKGROUND

On June 5, 2023, Plaintiff Guadalupe Rodriguez (“Plaintiff” or “Rodriguez”) filed the Complaint against Defendants City of Los Angeles (“City of LA”), City of San Fernando, County of Los Angeles, Los Angeles County Sheriff’s Department, State of California, California Highway Patrol, Southern California Regional Rail Authority D.B.A. Metrolink, Officer Sgrano 44738 (“Sgrano”), Officer Stebbins 41090 (hereafter “Stebbins,” erroneously sued as Sjebbins), and Does 1 to 50, alleging the following causes of action: (1) Battery (Civ. Code, § 43) (against all Defendants), (2) Negligence (Cal. Gov. Code §§ 815.2(a), 820(a)) (against all Defendants), (3) Negligent Hiring, Training and Supervision (Cal. Gov. Code §§ 815.2(a), 820(a)) (against Defendants City of LA, City of San Fernando, County of Los Angeles, Los Angeles County Sheriff’s Department, State of California, California Highway Patrol, Southern California Regional Rail Authority D.B.A. Metrolink, and Does 1 to 50), and (4) Intentional Infliction of Emotional Distress (against Sgrano, Stebbins, and Does 1 to 50.) Subsequently, the Court dismissed Defendants County of Los Angeles and Los Angeles County’s Sheriff’s Department on March 27, 2024, Defendants City of San Fernando on April 8, 2024, Defendants State of California and California Highway Patrol on April 22, 2024, and Southern California Regional Rail Authority on May 6, 2024. The only remaining named Defendants are City of LA, Sgrano, and Stebbins.

On July 1, 2024, Defendants City of LA filed the instant Demurrer to the Second and Third Causes of Action (the “Demurrer”). Concurrently, Defendants City of LA, Sgrano, and Stebbins (collectively, the “Moving Defendants”) filed the instant Motion to Strike (the “Motion”). Subsequently, Plaintiff Rodriguez filed his Opposition to the Demurrer and the Motion on September 11, 2024. City of LA replied on September 12, 2024. Moving Defendants also filed their Reply to the Opposition to the Motion on September 12, 2024.     

ANALYSIS

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.) No other extrinsic evidence can be considered.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747 (Hahn).)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) 

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.) 

A.    Meet and Confer Requirement

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

            Here, Moving Defendants’ counsel attests that “[p]rior to filing this motion, I emailed Plaintiff’s counsel about the City’s concerns with the Complaint. Counsel and I spoke briefly on the telephone on April 23, 2024, concerning the responsive pleading deadline and the City’s intention to file a demurrer to the complaint and a motion to strike the punitive damages claim. Plaintiff’s counsel stated that he needed more time to review the Complaint in light of the City’s concerns and agreed to an extension for the City and Officers Sgrano and Stebbins to respond to the Complaint until such time as counsel was able to meet and confer. Plaintiff’s counsel and I agreed to touch base in mid-May and schedule a time to meet and confer. Since that time, I have emailed Plaintiff’s counsel multiple times about the demurrer and motion to strike; however, Plaintiff’s counsel has not been able to meet and confer further about the issues raised in the City’s motion.” (Smith Decl. ¶ 3.)

            Based on the above declaration, the Court finds that the meet and confer requirements are satisfied.

B.     Second Cause of Action – Negligence

1)      Government Direct Tort Immunity

The Government Claims Act states that “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 or a public employee or any other person.”  (Gov. Code, § 815.)  As the Senate Legislative Committee explained in the comment to Government Code Section 815, “the practical effect of this section is to eliminate any common law governmental liability for damages arising out of torts.”

“[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating a specific duty of care, and not on the general tort provisions of Civil Code section 1714.” (Munoz v. City of Union City, (2004) 120 Cal.App.4th 1077, 1112.) “The cases do make plain, however, that a verdict against a county must be overturned if it is erroneously based on a negligence theory.” (Hilts v. Solano County (1968) 265 Cal.App.2d 161, 171.)

            In the Opposition, Plaintiff argues that the Complaint pleads statutory basis – specifically, Government Code sections 815.2 and 820.

            Government Code section 815.2 provides:

“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

As such, a governmental entity may be vicariously liable for its employee’s negligent acts or omissions within the scope of employment, unless the employee is immune from liability from such injuries. 

Here, Plaintiff fails to identify a specific statute duty that would impose direct liability on the City of LA for a Negligence claim. Without a specific statute, Plaintiff’s reliance on Government Code sections 815.2 only supports a theory of vicarious liability, not direct liability.

However, in reviewing the sufficiency of a complaint against a demurrer, the Court is not limited to the pleader’s theory of recovery and must determine whether the allegations of the complaint state a cause of action on any available legal theory. If it does, the demurrer must be overruled. (Adelman v. Associated Intern. Ins. Co. (2001) 90 Cal.App.4th 352, 353.)

Therefore, the Court will proceed to examine the vicarious liability claim against City of LA to determine whether the Complaint sufficiently alleges a cause of action under this legal theory.

2)      Vicarious Liability

With respect to negligence by a public employee, such an employee is generally liable for injury caused by his act or omission to the same extent as a private person. (Gov. Code, § 820, subd. (a).) However, “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.) (Underlines added.)

Cases analyzing whether there has been an “exercise of discretion” under section 820.2 “‘draw[ ] the line between “planning” [or] “operational” functions of government’” and “‘lower-level, or “ministerial,” decisions that merely implement a basic policy already formulated.’” (City of Los Angeles v. Superior Court (2021)62 Cal.App.5th 129, 147 (Wong).)

In Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 794 (Lopez), the court held that “an individual bus driver's decision [not to intervene in one passenger’s violent assault against another] concerning what form of protective action to take in a particular case” was “the kind of ministerial, ‘operational’ action ... that is not immunized by ... section 820.2[.] [italics omitted]” In McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261-262 (McCorkle), the court rejected claims of immunity for a police officer’s negligent conduct of a traffic investigation.

Conversely, courts have concluded that the discretionary act statute does immunize officials and agencies against claims that they unreasonably delayed regulations under which a murdered security guard might have qualified himself to carry a defensive firearm. (Nunn v. State of California (1984) 35 Cal.3d 616, 622-623.) Thus, an exercise of discretion under section 820.2 requires “a policy decision [by a public employee], consciously balancing risks and advantages”; put differently, that the employee has “render[ed] a considered decision.” (Johnson v. State (1968) 69 Cal.2d 782, 793-795.)

Here, the Complaint alleges that “Defendants ... negligently failing to determining [sic] the fact that Plaintiff posed no threat of physical harm to any person when she was detained and/or handcuffed, negligently inflicting physical injury upon Plaintiff as described, and negligently employing excessive force against Plaintiff when the same was unnecessary and unlawful.” (Compl. ¶ 26.) “The subject incident was additionally caused by the negligent deployment of the Defendants and their failure to develop a tactically sound plan for addressing Plaintiff’s identity.” (Id. ¶ 27.)

            Similar to the defendants’ conduct in McCorkle and Lopez, the Court finds that the allegations sufficiently plead that Defendants Sgrano and Stebbins’s decision to detain and handcuff Plaintiff constituted an operational act performed in carrying out mandatory duties, rather than a policy decision. Consequently, such a decision or action was not discretionary, but rather ministerial in nature.

Therefore, section 820.2 does not confer immunity upon Officers Sgrano and Stebbins, as employees of Defendant City of LA, thereby excluding their employer City of LA from the exception to vicarious liability under this section.

            Based on the above, the Court OVERRULES the Demurrer as to the Second Cause of Action.

C.    Third Cause of Action – Negligent Hiring, Training and Supervision

In California, an employer may be liable to a third party for negligently hiring or retaining an unfit employee. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836.)

“[A] direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained.” (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 255-256(de Villers).)

However, our Supreme Court carefully reiterated the distinction between the direct liability and the vicarious liability of a public entity. As is discussed previously under the Second Cause of Action analysis, direct liability of a public entity must be founded on a specific statute either declaring the entity to be liable or creating a specific duty of care. (Gov. Code, § 815, subd. (a), Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1180 [“section 1714 is an insufficient statutory basis for imposing direct liability on public agencies.”]) In contrast, the vicarious liability of a public entity for torts committed by its employees within the course and scope of their employment with the agency. (Gov. Code, § 820, de Villers, supra, 156 Cal.App.4th at p. 251.)

In Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, the appellate court held the district could be liable for plaintiff’s injuries under a theory of vicarious liability for school personnel’s negligent hiring and supervision of the molester, reasoning that “[i]n our case, while Ferguson's conduct in molesting Virginia G. will not be imputed to the District, if individual District employees responsible for hiring and/or supervising teachers knew or should have known of Ferguson's prior sexual misconduct toward students, and thus, that he posed a reasonably foreseeable risk of harm to students under his supervision, including Virginia G., the employees owed a duty to protect the students from such harm.” (Id. at p. 1855.)

In C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, our Supreme Court clarified that a plaintiff need not to specifically plead, before undertaking discovery, “the identity of a government employee whose alleged negligence is made the basis for vicarious liability under section 815.2[.]” (Id. at p. 872, italics in original.)

            Here, City of LA concedes that C.A. opinion addresses the vicarious liability of an employer for its employees’ alleged conduct, and stating “[t]he City is not challenging the Complaint to the extent it is based on vicarious liability as to the City.” However, it contends that any argument asserted in Plaintiff’s Opposition that are premised on vicarious liability are moot and do not defeat the Demurrer.

The Court disagrees with City of LA’s contention for the fundamental reason that a demurrer must be overruled if the allegations of the complaint state a cause of action on any available legal theory. (Adelman, supra, 90 Cal.App.4th at p. 353.) It is immaterial that Plaintiff argues that one legal theory, namely direct tort liability against it, must fail, while conceding that an alternative legal theory of vicarious liability is potentially available based on the allegations.

Therefore, the Court OVERRULES the Demurrer as to the Third Cause of Action.

D.    First and Fourth Cause of Action – Intentional Tort Claims

The First Cause of Action – Battery – and the Fourth Cause of Action – Intentional Infliction of Emotional Distress – are both common intentional tort claims.

In its Motion, City of LA merely states that “the intentional tort claims alleged directly against [it] essentially alleges that the City stopped and detained Plaintiff.” (Mot. at p. 5.) It further asserts, “However, the City cannot take these actions on its own ... the City acts through its employees.” (Ibid.)

It is evident that the First and Fourth Cause of Action rely on the theory of vicarious liability. City of LA does not provide legal analysis to support its Demurrer as to these two causes of action – it neither argues that insufficient relationships were alleged to establish vicarious liability nor substantiates that vicarious liability is excepted under Government Code section 820.2. By contrast, the Court finds that the Complaint sufficiently alleges the employer-employee relationship giving rise to such liability. (Compl. ¶¶ 7, 19.)

Accordingly, as the analysis previously discussed applies to these two causes of action, the Court OVERRULES the Demurrer as to the First and Fourth Cause of Action.

E.     Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

In its Motion to Strike, Moving Defendants seeks to strike the following portions from the Complaint:

(1)   Paragraph 27: “The aforementioned acts of the individual defendants were willful,

wanton, malicious and oppressive, and justify the awarding of exemplary and punitive damages as against the individual defendants named herein.”

(2)   Paragraph 39: “Defendants' OFFICER SGRANO 44738 and OFFICER SJEBBINS 41090 and DOES 1 through 50, inclusive, conduct was so outrageous as to exceed all bounds of that usually tolerated by a civilized community.”

(3)   Paragraph 43: “The above-described acts of Defendants OFFICER SGRANO 44738 and OFFICER SJEBBINS 41090 and DOES 1 through 50, and each of them, were outrageous, intentional, unlawful, malicious, and committed for the express purpose of causing Plaintiff to suffer increased humiliation, mental anguish and emotional and physical distress, and represented conduct which goes beyond all possible bounds of decency so as to be regarded as utterly intolerable in a civilized community. The conduct of the above-mentioned Defendants, and each of them, in confirming and ratifying this conduct was done with the knowledge that Plaintiff would certainly suffer great physical and emotional distress, and was undertaken with a wanton and reckless disregard of the consequences to the Plaintiff.”

(4)   Paragraph 47:“he[sic] aforementioned acts and omissions alleged herein were intended by each Defendant to cause injury to Plaintiff, and were undertaken with a conscious disregard for the rights and safety of the Plaintiff as the acts and omissions were willful, wanton, malicious and oppressive, thereby justifying the awarding of exemplary and punitive damages against Defendants in an amount to be determined according to proof at trial.”

(5)   Item 4 of Prayer: “4. For punitive damages against the individual defendants in their individual capacities in an amount to be determined according to proof at trial[.]”

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

Here, Plaintiff alleges “malicious” or “oppressive” conduct in three conclusory paragraphs. (Compl. ¶¶ 24, 43, and 47.) The allegations lack the necessary factual support to establish requisite evidence for punitive damages. Specifically, the pleadings are devoid of any detailed factual showing that supports a finding of malice, oppression, or fraud. Without such factual underpinning, Plaintiff fails to meet the threshold required to sustain a claim for punitive damages.

Accordingly, the Court finds that Plaintiff has failed to sufficiently plead facts supporting relief for punitive damages, concluding that Moving Defendants’ Motion to Strike is justified.

Based on the above, the Court GRANTS with LEAVE TO AMEND the Motion to Strike.

CONCLUSION

Defendant City of Los Angeles’s Demurrer to the Complaint is OVERRULED.

Defendants City of Los Angeles, Officer Sgrano 44738, and Officer Stebbins 41090’s Motion to Strike is GRANTED.

Plaintiff Guadalupe Rodriguez is GRANTED LEAVE TO AMEND the paragraphs subject to the Motion to Strike within 20 days.

Moving party to give notice.