Judge: Deirdre Hill, Case: 22TRCV00213, Date: 2023-03-02 Tentative Ruling

Case Number: 22TRCV00213    Hearing Date: March 2, 2023    Dept: M

Hearing Date:                         March 2, 2023

Moving Parties:                      Defendant Deputy Sheriff Marcello Curko

Responding Party:                  Plaintiff Mike Harsini

Motion for Judgment on the Pleadings

            The court considered the moving, opposition, and reply papers.

RULING

            The motion for judgment on the pleadings is GRANTED WITHOUT LEAVE TO AMEND.

BACKGROUND

On March 22, 2022, plaintiff Mike Harsini (self-represented) filed a complaint against Deputy Sheriff Marcello Curko for slander/libel and IIED. 

On August 19, 2022, the court denied plaintiff’s anti-SLAPP motion.

On August 22, 2022, plaintiff filed a motion for summary judgment.

On September 22, 2022, the court denied the motion for summary judgment without prejudice.

On September 22, 2022, plaintiff filed a motion for summary judgment.

On February 15, 2023, the court denied plaintiff’s motion for summary judgment.

LEGAL AUTHORITY

CCP § 438 states, in relevant part:  “(b)(1) A party may move for judgment on the pleadings. . . . (c)(1)  The motion provided for in this section may only be made on one of the following grounds:  (A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or cause of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.  (B) If the moving party is a defendant, that either of the following conditions exist:  . . . . (ii) The complaint does not states facts sufficient to constitute a cause of action against that defendant. . . . (d) The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. . . .”  

DISCUSSION

            Defendant Marcello Curko requests judgment on the pleadings on the complaint.

            Defendant argues that plaintiff fails to allege a viable cause of action; plaintiff failed to present a claim to the County of Los Angeles prior to bringing the action, which bars any causes of action against the County employee defendant; and Deputy Curko is entitled to immunities under Government Code §§820.2, 820.4, 821.6, and 820.8.

The complaint refers to slander/libel and IIED although they are not alleged in compliance with Cal. Rules of Court, Rule 2.112.

Plaintiff alleges that on November 9, 2021, defendant rudely called plaintiff and said that “there is an outstanding warrant for your arrest which he has filed it with Torrance District Attorney’s Office on behalf of attorney Marsh for eavesdropping and illegal tape recording conversation.”  Plaintiff asked defendant what actual tape recording evidence he had.  On November 15, 2021, plaintiff attended a criminal court hearing and the judge dismissed Deputy Sheriff Curko’s “bogus charges against me due to the lack of any actual evidence.”  Plaintiff filed a civil case against attorney Marsh for libel/slander for falsely filing a criminal case against plaintiff.  On March 21, 2022, Judge Mackey in Dept. 55 granted defendant Marsh’s anti-SLAPP motion and awarded her attorney’s fees against plaintiff.

In opposition, plaintiff does not address any of the purported causes of action.  He contends that defendant “has committed a misdemeanor crime by falsifying a bogus Criminal Case #1TR03758 against” plaintiff “for the violation of ‘Tape-Recording Conversation’ which was reported by” attorney Marsh, “which this unprofessional Defendant Curko had superficially believed and filed it with the Torrance DA & then forthwith it in Dept. 3” to obtain a bench warrant against plaintiff and which case was later dismissed. 

In reply, defendant contends that the opposition does not address any of the arguments that entitle him to judgment on the pleadings.  Defendant reiterates his arguments.

The court finds that the allegations are insufficient to constitute a cause of action against defendant.  Plaintiff has not alleged compliance with the Tort Claims Act.  The Tort Claims Act requires the timely presentation of a written claim for money or damages to a public entity as a prerequisite for litigation against that entity or its employees and the rejection of that claim.  Gov. Code §§905, 911.2, 945.4.  “Compliance with the claims statute is mandatory, and failure to file a claim is fatal to the cause of action.”  Pacific Tel. & Tel. Co. v. Cnty. of Riverside (1980) 106 Cal. App. 3d 183, 188.  “Timely claim presentation is not merely a procedural requirement, but rather, a condition precedent to a plaintiff’s maintaining an action against a defendant, and thus, an element of the plaintiff’s cause of action.”  K.J. Arcadia Unified School Dist. (2009) 172 Cal. App. 4th 1229, 1238.  Failure to plead facts showing compliance with the Act or an excuse for noncompliance subjects the complaint to demurrer.  State of California v. Superior Court (2004) 32 Cal.4th 1234, 1245.

            As for immunity, under Gov. Code §820.2, “[e]xcept 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.”  Under Gov. Code §820.4, “[a] public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. . . .”  Under Gov. Code §821.6, “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”  On their face, plaintiff’s allegations fall under these immunities.  Plaintiff has not alleged that Deputy Curko was not acting within his discretion to investigate and to provide information to the District Attorney’s office or that he was not acting within the scope of his employment.  Further, “[t]he district attorney is the public prosecutor, except as otherwise provided by law.  The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.”  Gov. Code §26500.  As a matter of law, the prosecutor has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek.  See People v. Eubanks (1996) 14 Cal. 4^th 580, 588.  The allegations show otherwise.

            Plaintiff has not shown how he can amend to allege sufficiently the elements of any cause of action.

            The motion is thus GRANTED WITHOUT LEAVE TO AMEND.

            Defendant is ordered to give notice of ruling.