Judge: Douglas W. Stern, Case: 22STCP02330, Date: 2023-04-17 Tentative Ruling
Case Number: 22STCP02330 Hearing Date: April 17, 2023 Dept: 68
Vonneisha McMurray vs.
Officer Nicholas Hernandez, et al., 22STCP02330
MOVING PARTIES: Defendants County of Los
Angeles, Deputy Nicholas Hernandez, and Deputy James Scanlan
MOTION: Demurrer to First Amended Complaint with
Motion to Strike
I.
BACKGROUND
The Court begins with an observation regarding
demurrers. It is never a good idea to
argue the defendants’ version of the facts when presenting a demurrer. Doing so merely invites the Court to
improperly base its decision not upon the facts that the Court must assume can
be proven by Plaintiff, but instead upon the version put forth by Defendants.
“The function of a demurrer is
to test whether, as a matter of law, the facts alleged in the complaint state a
cause of action under any legal theory. (Intengan v. BAC Home Loans
Servicing, LP (2013) 214 Cal.App.4th 1047, 1052, 154 Cal.Rptr.3d 727.)
We assume the truth of all facts properly pleaded, as well as facts of which
the trial court properly took judicial notice. (Ibid.) But we do not
assume the truth of contentions, deductions, or conclusions of law. (Ibid.)
Our review of the trial court's decision is de novo. (Ibid.)” C. W. Johnson & Sons, Inc. v.
Carpenter (2020) 53 Cal.App.5th 165, 168 [265 Cal.Rptr.3d 895, 897, 53
Cal.App.5th 165, 168]
Therefore, the Court ignores the Defendants’ additional
factual assertions (“… although she was not wearing [a face mask] herself…;”
(pg. 1:7) “She continued to bait [the deputies] into conduct to control her
movements while they waited for another unit.” (pg. 1:11-12). “Plaintiff escalated the incident… and
intentionally disregarded instructions from deputies…” (pg. 3:21-22.)) The Court also ignores the Defendants’
slanted interpretation of the facts pleaded by Plaintiff.
Instead, the Court shall review the Plaintiffs’ allegations
(liberally interpreted) to determine if Plaintiffs were able to prove those
alleged facts, would Plaintiffs be entitled to recover judgment against the particular
demurring Defendants.
A. Factual
Plaintiffs Vonneisha McMurray, Cheyenne Bradford, and Robert McMurray are
pro per litigants suing Defendants alleging multiple causes of action. The claims are (1) false imprisonment, (2) illegal
search, (3) fraudulent deceit, (4) negligent misrepresentation, (5) intentional
infliction of emotional distress, (6) assault, and (7) battery by a police
officer. All the claims arise out of a traffic stop of Plaintiff Vonneisha
McMurray on October 20, 2020.
Plaintiff Vonneisha McMurray was the driver of the vehicle. (Complaint ¶ 9.) Plaintiff Robert McMurray is alleged to be
Plaintiff Vonneisha McMurray’s father and was present in the vehicle when the traffic
stop took place. No other allegations
are made relating to him. Plaintiff
Cheyenne Bradford is alleged to be Plaintiff Vonneisha McMurray’s son. (Complaint ¶ 16, 19.) He was not in the vehicle, but was called by
Plaintiff Vonneisha McMurray and came to the traffic stop location in order to
take a video of the situation.
(Complaint ¶ 16.) He was
handcuffed by Defendants. (Complaint ¶
19.)
B. Procedural
This
action was originally filed by Plaintiff Vonneisha McMurray on June 21, 2022. This Court previously sustained demurrers with
leave to amend filed by the Cities of Palmdale and Lancaster due to Plaintiff
not including language demonstrating that she had filed a pre-litigation
government claim. On February 21, 2023,
Plaintiff filed a First Amended Complaint (FAC) in which Cheyenne Bradford and
Robert McMurray were added as Plaintiffs. These extra Plaintiffs may have been
improperly added, considering that their addition was outside the Court’s grant
of leave to amend the complaint. Defendants
County of Los Angeles, Deputy Hernandez, and Deputy Scanlan filed a demurrer
with motion to strike on March 17, 2023.
No
opposition to the demurrer or motion to strike by Defendants County of Los
Angeles, Deputy Nicholas Hernandez, and Deputy James Scanlan, has been filed by
Plaintiffs.
II. ANALYSIS
A. The Demurrer
As a
general matter, 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 pleading alone, and not the evidence or facts alleged.” (E-Fab,
Inc. v. Accountants, Inc. Servs.
(2007) 153 Cal.App.4th 1308, 1315.) As
such, the court assumes the truth of the complaint’s properly pleaded or
implied factual allegations. (Id.) The only issue a demurrer is concerned with is
whether the complaint, as it stands, states a cause of action. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740,
747.)
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, 226.) 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).
1. Failure
to file Government Claim
While there are several issues raised in the
demurrers regarding the defects in the Plaintiffs’ FAC, the main issue upon
which all of the Defendants demur is the fact that Plaintiffs have still not alleged
that they filed a claim with the defendant entities within six months of the
date of the incident.
Government Code Sections 900 to 915 require that in
order for a plaintiff to proceed with an action for the recovery of damages
based upon tort theories against a public entity, a claim must be filed with
the defendant entity within six months of the date of the incident. Government Code Section 905 requires that the
plaintiff’s complaint allege that a government claim has been filed. Further, if a cause of action against a public
entity is a type as to which a claim must be presented to the entity, no action
may be commenced on the cause of action until a claim has been presented and
the entity has acted on the claim or the claim has been deemed rejected. (See Gov. Code §945.4.)
Despite this Court having sustained a previous
demurrer to Plaintiffs’ complaint for this reason, there is still no language
in Plaintiffs’ FAC indicating that Plaintiffs have complied with Government
Code Sections 900 to 915 and filed a claim with the County of Los Angeles or
the Los Angeles County Sheriff’s Department. As such, Plaintiffs cannot
maintain any causes of action against the Defendants. Plaintiffs have not filed
an opposition to the demurrer. Since
they have known of this defect and amended the complaint without addressing it,
and have chosen not to oppose the demurrer, the Court concludes that Plaintiffs
can never cure this defect.
Accordingly, Defendants’ Demurrer to Plaintiffs’ FAC
is sustained without leave to amend.
Defendants also contend that the Complaint is
uncertain. The Court shall not base its
ruling on that issue, as the failure to have filed the mandatory claim is dispositive.
B. Motion to Strike
Defendants Deputy Hernandez and Deputy James Scanlan
request that language related to Plaintiffs’ claims for punitive damages and
attorneys’ fees be stricken from the FAC.
Under CCP §436, the Court may, upon terms it deems
proper: “(a) strike out any irrelevant, false or improper matter inserted in
the pleadings; (b) strike out all or any part of any pleading not drawn or
filed in conformity with the laws of this State, a court rule, or order of the
court.” A motion to strike improper
allegations for punitive damages is appropriately granted where the claim sued
upon would not support such awards as a matter of law. (Commodore Home Systems, Inc. v. Superior
Court (1982) 32 Cal.3d 211.) Civil Code §3294 sets forth a strict standard
for maintaining a claim for punitive damages. The plaintiff must establish the defendant is
himself or itself guilty of “oppression, fraud or malice” or approved or
ratified such conduct. (Civil Code
§3294(a-b).)
Defendants object to the requests for attorneys’
fees and costs and punitive damages because Plaintiffs have provided no basis
for these requests in their FAC. Plaintiffs have not indicated in the complaint
what statute would allow them to request attorneys’ fees. Nor have Plaintiffs pled sufficient facts to
show that Defendants are guilty of oppression, fraud, or malice. Plaintiffs
have simply made conclusory allegations.
The Motion to Strike is GRANTED without leave to
amend.
III. Order
1.
Defendants County of Los Angeles, Deputy
Nicholas Hernandez, and Deputy James Scanlan demurrers to Plaintiffs’ First
Amended Complaint are SUSTAINED WITHOUT LEAVE TO AMEND.
2.
Defendants Deputy Hernandez and Deputy
Scanlan’s Motion to Strike is GRANTED
without leave to amend.