Judge: Douglas W. Stern, Case: 22STCP02330, Date: 2023-05-15 Tentative Ruling
Case Number: 22STCP02330 Hearing Date: May 15, 2023 Dept: 68
Vonneisha McMurray vs.
Officer Nicholas Hernandez, et al., 22STCP02330
MOVING PARTY: Defendant City of Lancaster
Demurrer to First Amended Complaint with
Motion to Strike
I.
BACKGROUND
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 on the grounds that Plaintiff had not alleged that she
had filed a pre-litigation government claim. (See Government Code § 900 et
seq.) 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, as their addition was outside
the Court’s leave to amend the complaint. The Court shall not address that
issue, as the First Amended Complaint is fatally defective on other grounds.) The
City of Lancaster filed a demurrer and a motion to strike on March 22, 2023.
On
April 25, 2023, Plaintiffs filed oppositions to City of Lancaster’s demurrer and
motion to strike.
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 a Government Claim
The issue upon which Defendant demurs is the fact
that Plaintiffs have not alleged that they filed a claim with the defendant
entity 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 money or 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.
“There shall be presented in
accordance with Chapter 1 (commencing with Section 900) and Chapter 2
(commencing with Section 910) all claims for money or damages against local
public entities except any of the following:” [none of which exceptions are
applicable to Plaintiffs’ claims.]
Compliance with the Government Code Sections
requires that the plaintiffs’ 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.)
“Under the Claims Act, no suit
for “money or damages” may be brought against a public entity until a written
claim has been presented to the public entity and the claim either has been
acted upon or is deemed to have been rejected. (Gov.Code, §§ 905, 945.4.) A
suit for “money or damages” includes all actions where the plaintiff is seeking
monetary relief, regardless whether the action is founded in “ ‘tort, contract
or some other theory.’ ” (Baines Pickwick Ltd. v. City of Los Angeles,
supra, 72 Cal.App.4th at p. 307, 85 Cal.Rptr.2d 74, italics omitted; Loehr
v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1079,
195 Cal.Rptr. 576.)” Hart v. Alameda
County (2000) 76 Cal.App.4th 766, 778
“As explained by Baines
Pickwick, the Legislature intended the claims presentation statutes to broadly
apply to “ ‘ “all forms of monetary demands ...,” ’ ” and the earlier
conclusion that the Claims Act was limited to tort claims was based on the
government immunity statutes, which contain different statutory
language. (Baines Pickwick Ltd. v. City of Los Angeles, supra, 72
Cal.App.4th at pp. 305–310, 85 Cal.Rptr.2d 74.) We agree with this latter view
and adopt the rule that the Claims Act is not limited to tort actions.” Hart v. Alameda County (1999) 76
Cal.App.4th 766, 779.
Despite this Court having sustained
a previous demurrer to Plaintiffs’ complaint for this reason, there is still no
allegation in Plaintiffs’ FAC claiming that Plaintiffs have complied with
Government Code Sections 900 to 915 and filed a claim with the City of
Lancaster. As such, Plaintiffs cannot maintain any causes of action against the
Defendant. Since they have known of this defect and amended the complaint
without addressing it, the Court concludes that Plaintiffs can never cure this
defect.
It is worth noting that the lack of a government claim
was the basis for two demurrers heard on April 17 and 18, 2023, that were filed
by the other governmental defendants to this case. At the time those demurrers
were heard, Plaintiff requested that they be delayed for hearing until the City
of Lancaster’s demurrer was to be heard – today. Plaintiff Vonneisha McMurray represented to
the Court that she could gather documents relevant to this defect. The Court
sustained the two demurrers. Now, 4 weeks later, Plaintiff has still failed to
file address the failure to file a timely government claim and still has not
addressed the documentation that she represented at the April 17 and 18
hearings existed.
Accordingly, Defendants’ Demurrer as
to Plaintiffs’ FAC is sustained without leave to amend.
B. Motion to Strike
Defendant City of Lancaster requests
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).)
Defendant objects to the requests for attorneys’
fees and costs and punitive damages because Plaintiffs have provided no basis
for these requests in their FAC. The First Amended Complaint fails to reveal a
basis for an award of attorney’s fees. Nor have Plaintiffs pled sufficient
facts to show that Defendant Lancaster is or could be guilty of oppression,
fraud, or malice. Plaintiffs have simply made conclusory allegations.
Defendant’s motion to strike references to
attorneys’ fees and punitive damages from Plaintiff’s Complaint is GRANTED
without leave to amend.
III. Order
1.
Defendant City of Lancaster’s demurrer as to
Plaintiffs’ First Amended Complaint is SUSTAINED without leave to amend.
2.
Defendant City of Lancaster’s Motion to
Strike is GRANTED without leave to amend.