Judge: Edward B. Moreton, Jr., Case: 22SMCV02235, Date: 2023-02-17 Tentative Ruling

Case Number: 22SMCV02235    Hearing Date: February 17, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

MOVING PARTY:                    Defendants California Civil Rights Department, Angela Endsley and Elida Ramirez

RESPONDING PARTY:         Plaintiff Justin Jermaine Wills

BACKGROUND

This action arises from a dispute over an investigation conducted by Defendant the California Civil Rights Department (“CRD”) into a complaint for alleged violations of the Unruh Act made by Plaintiff Justin Jermaine Wills against his commercial landlord, Westwood Venture LLC (“Westwood”).  Plaintiff submitted a complaint with CRD alleging that the men’s restroom in his building lacked privacy because of a bare window facing an alley, while the women’s restroom had no such exposure.  His complaint also included other issues related to his ongoing dispute with Westwood which eventually resulted in his eviction.  (Ex. A to Defendants’ Request for Judicial Notice (“RJN”).) 

CRD investigated his complaint and ultimately concluded there was not sufficient evidence to find that the Unruh Act was violated.  A closure determination letter and request for additional information (“CDL”) was sent to Plaintiff, informing him that based on an analysis of the facts and evidence, there was insufficient evidence to support his claim.  (Ex. C to RJN).  The letter did not mention the bathroom issue but instead dealt with Plaintiff’s broader disputes with his landlord.  The letter concluded gender was not a motivating factor in Plaintiff’s eviction.  (Ibid.) 

Plaintiff objected to the CDL because its conclusions went beyond the claim he had made regarding the men’s restroom.  Plaintiff submitted additional information which resulted in a further investigation.  The investigation did not change CRD’s original conclusion, and CRD issued a formal notice of case closure on the basis of insufficient evidence.  (Ex. D to RJN.)  Plaintiff filed an appeal which was denied.  (Ex. G to RJN.)  Plaintiff then presented a claim to the Government Claims Program of the Department of General Services, which was also denied.  This lawsuit followed.  Plaintiff is suing CRD and its two employees (Defendants Angela Endsley and Elida Ramirez) for fraud and deceit.      

This hearing is on Defendants’ demurrer to Plaintiff’s first amended complaint.  Defendants argue that (1) under the Government Claims Act, in order to state a tort claim against CRD, Plaintiff must cite to a specific statute imposing liability, which it argues Plaintiff has failed to do, (2) Plaintiff did not plead key elements supporting his claim of fraud or deceit, and (3) even if Plaintiff could state a claim, the Government Claims Act immunizes all Defendants from Plaintiff’s suit. 

REQUEST FOR JUDICIAL NOTICE

Defendants request judicial notice of documents stored in the CRD’s cloud computing system called California Civil Rights System or CCRS, including an intake form, a signed complaint from Plaintiff, the CDL, a case closure letter, an amended CDL, a cease and desist letter, a denial of appeal and a screenshot of the CCRS.  The Court grants the request pursuant to Evid. Code §§452 and 453, but does not assume the truth of the facts stated in the judicially noticed documents.    

LEGAL STANDARD

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  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.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)        

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

MEET AND CONFER

Code Civ. Proc. §430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party 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.” (CCP § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).)  Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)  Defendants submit the Declaration of Renee Paradis, which adequately shows counsel attempted to meet and confer prior to bringing this demurrer.  Plaintiff complains the meet and confer was inadequate, but even accepting his claims as true, a failure to meet and confer “shall not be grounds to overrule or sustain a demurrer.”  (Code Civ. Proc. § 4341, subd. (a)(4).)

DISCUSSION

Second Amended Complaint Was Filed Without Leave to Amend

Before addressing the merits of the demurrer, the Court must first consider Plaintiff’s motion to strike the demurrer as moot on the ground that it is directed to the FAC which was superseded by the Second Amended Complaint (‘SAC”).  Defendant counters that the SAC was filed without leave to amend, and therefore, the operative complaint is the FAC.  The Court agrees.  A plaintiff may amend the complaint once without leave of court before an answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the hearing. (Code Civ. Proc., § 472, subd. (a).)  Plaintiff has already amended his complaint once.  Further amendments require leave of court.  Accordingly, the Court strikes the second amended complaint, which was filed in violation of proper procedures. (Loser v. E. R. Bacon Co. (1962) 201 Cal.App.2d 387, 390 (“A court may, by virtue of its inherent power to prevent abuse of its processes, strike an amended complaint which is filed in disregard of established procedural processes.”).)

There is No Statutory Basis for Any of Plaintiff’s Claims

            CRD argues that Plaintiff’s complaint is barred by the Government Claims Act.  The Court agrees.  

The Government Claims Act sets forth when and how a government entity may be sued.  (Gov. Code §§810 et seq.)  “Except as otherwise provided by statute (a) A public entity is not liable for an injury whether such injury arises out of an action or omission of the public entity or a public employee or any other person.”  (Gov. Code § 815 (emphasis added).)  Thus, “under the statutory scheme in California, all government tort liability must be based on statute.”  (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.)

In order to state a cognizable cause of action against a government entity, Plaintiff must identify a specific statute declaring the government entity to be liable, and every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of the statutory duty.  (Susman v. Los Angeles (1969) 269 Cal.App.2d 803, 809 (“In view of the fact that tort causes of action against public entities are now based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable.  Every fact essential to the existence of statutory liability must be pleaded.”))       

Here, Plaintiff’s complaint cites to Civil Code §§1572, 1709 and 1710 as the basis for Defendants’ liability.  Civil Code §1709 establishes liability for the common law tort of deceit or fraud, while §§ 1572 and 1710 supply definitions relevant to that tort.  But section 815 immunizes public entities from liability on common law theories even if they are codified in the civil code.  “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care and not on the general tort provisions of [the] Civil Code.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4^th 1175, 1183; see also Lockhart v. County of Los Angeles, 2007 U.S. Dist. Lexis 119102 at *38 (C.D. Cal. Oct. 16, 2007) (“Civil Code section 1710 imposes liability for ‘deceit’, but following the holding in Eastburn, this statute does not abrogate the general immunity found in Government Code section 815.”).)

In the absence of an explicit provision of statutory liability against a public entity, under § 815.6, a plaintiff can pursue a claim that the entity failed to perform a mandatory duty imposed on it by law.  Section 815.6 provides that “[w]here a public entity is under a mandatory duty imposed by an enactment … the public entity is liable for an injury … proximately caused by its failure to discharge the duty ….”  The enactment at issue must be “obligatory, rather than merely discretionary or permissive … it must require rather than merely authorize or permit that a particular action be taken or not taken.”  (Haggis v. City of Los Angeles (2000) 22 Cal.4^th 490, 498.)  “It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.”  (Id.)  

Plaintiff relies on §§ 10007 and 10009 of title 2 of the California Code of Regulation to supply the mandatory duty.  Section 10007 governs the screening of pre-complaint inquiries to CRD through the intake interview process.  It provides that the CRD “shall” conduct an intake interview, liberally construing the facts alleged by complainants and only accepting complaints for investigation that state a claim and are within the jurisdiction of the CRD.  Section 10009 governs the drafting and filing of complaints after the completion of the intake process.  Neither section imposes a mandatory duty.  The functions in these provisions involve discretionary acts, like drafting a complaint or liberally construing facts alleged by complainants.  (See de Villers v. County of San Diego (2007) 156 Cal.App.4^th 238, 260-261 (“when the statutorily prescribed act involves debatable issues over whether the steps taken by the entity adequately fulfilled its obligation, … the act necessarily embodies discretionary determinations by the agency regarding how best to fulfill the mandate, and this discretion removes the duty from the type of activity that supports a claim under section 815.6”).)       

Courts have repeatedly rejected claims that a statute imposing a duty to conduct an investigation gives rise to a mandatory duty to conduct an adequate investigation or to take any particular steps in the course of that investigation.  (See County of Los Angeles v. Super. Ct. (2012) 209 Cal.App.4^th 543, 554 (“Plaintiffs’ argument amounts to a claim that the County did not conduct an adequate investigation.  This argument demonstrates the County’s duty was not mandatory because the duty of a public entity is not mandatory if it is debatable whether the duty was adequately fulfilled.”).)  “An enactment requiring a public entity to conduct an investigation under certain circumstances does not, without more, impose a mandatory duty to take certain specified action.”  (Id.)

Here, CRD owed no mandatory duty to limit its investigation to Plaintiff’s initial complaint.  CRD is granted “wide investigative latitude” to inquire into issues not specifically raised by complainants.  (Dept of Fair Employment and Housing v. Law School Admission Council Inc. (N.D. Cal. 2012) 896 F. Supp.2d 849, 861-864 (rejecting claim that a “proper reading of DFEH’s jurisdiction under California law limits its investigatory authority solely to those claims that were expressly raised in verified complains received by the agency”).) 

Because Plaintiff has not alleged an explicit provision of statutory liability nor a mandatory duty that CRD failed to perform, the Court sustains the demurrer.      

Plaintiff Has Not Adequately Alleged the Elements of Fraud or Deceit

 The elements of fraud are (1) a misrepresentation, (2) scienter or knowledge of falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) resulting damage.  (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4^th 289, 294.)  The facts constituting the alleged fraud must be alleged specifically as to every element of fraud.  (Lazar v. Superior Court (1996) 12 Cal.4^th 631, 645.)  To properly allege fraud against an entity, the plaintiffs must plead the names of the person allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.  (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4^th 153, 157.) 

The crux of Plaintiff’s complaint is that CRD committed fraud by not investigating only what was in his initial complaint.  He complains he was led to believe his complaint would be investigated in a particular fashion and the CRD failed to do so.  Plaintiff has not alleged the specifics of the alleged fraud including among other things, what the specific statements were, who made each specific statement, when they were said to him, and where the statements were made.   Plaintiff has also failed to allege facts to support a finding of justifiable reliance.

In addition, Plaintiff’s claim is one of promissory fraud, rather than false representation, as the misrepresentation involves a future act as opposed to a false representation of an existing fact.  To allege promissory fraud, Plaintiff must allege an additional element -- the existence of the intent not to perform at the time the promise was made.  (Behnke v. State Farm General Inc. Co. (2011) 196 Cal.App.4^th 1443, 1453.)  Plaintiff has not set forth specific facts to support a finding that Defendants had no intent to perform at the time they made each purported misrepresentation.

Defendants Have Statutory Immunity

            Section 818.2 protects government agencies against claims that it “fail[ed] to enforce any law.”  (Gov. Code §818.2.)  The companion section, Government Code §821, extends the same immunity to the public employee. The purpose of this statute is to protect the exercise of discretion by enforcement officers in carrying out their duties.  (Guzman v. County of Monterey (2002) 178 Cal.App.4^th 983, 996.)  Here, the thrust of Plaintiff’s complaint is that CRD failed to enforce the Unruh Act, by engaging in a “fraudulent” and “bogus” investigation culminating in the CDL.  Because Plaintiff’s complaint is equivalent to a claim that CRD failed to enforce the law, both CRD and its employees are immune under §818.2.

Under §818.8, “a public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.”  “[T]he immunity provided governmental entities by section 818.8 for misrepresentation applies … [to the] types of deceit described in Civil Code section 1710.”  (Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1343-44.)  And this immunity extends to claims for promissory fraud.  (Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4^th 30, 40-43.)  Thus, under §818.8, the CRD is statutorily immune from Plaintiff’s promissory fraud claim. 

While governmental entities are absolutely immune to misrepresentation claims, there is an exception to the immunity provided to public employees for misrepresentation.  Section 822.2 provides that a “public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation …. unless he is guilty of actual fraud, corruption or actual malice.”  “The immunity afforded by Government Code section 822.2 applies unless, in addition to the essentials of common law deceit, a public employee is motivated by corruption or actual malice, i.e., a conscious intent to deceive, vex, annoy or harm the injured party (Masters, 32 Cal.App.4^th at 42; Schonfeld v. City of Vallejo (1975) 50 Cal. App. 3d 401, 409-410, overruled on other grounds in Morehart v. County of Santa Barbara (1994) 7 Cal. 4th 725, 743).  Thus, in order to support a cause of action for fraud against the public employees, Plaintiff must allege, in addition to the ordinary elements of common law deceit, motivation by corruption or actual malice.  The complaint does not allege any such motivation by any of the Defendant employees.

Defendant employees are also statutorily immune under Gov. Code §821.6.  Section 821.6 provides that “[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 or without probable cause.”  Section 821.6 is not limited to conduct occurring during formal proceedings. “[I]t also extends to actions taken in preparation for formal proceedings.  Because investigation is ‘an essential step’ toward the institution of formal proceedings, it is also cloaked with immunity.”  (Javor v. Taggart (2002) 98 Cal. App. 4th 795, 808.)  The policy behind § 821.6 is to encourage state employees to investigate and prosecute matters “without fear of reprisal from the person or entity harmed thereby.  Protection is provided even when official action is taken maliciously and without probable cause.” (Shoemaker v. Myers (1992) 2 Cal. App. 4th 1407, 1424.)  Section 821.6 applies to the Defendant employees in this case.  (See Lawrence v. Superior Court (2018) 21 Cal.App. 5^th 513, 526 (“Although section 821.6 primarily has been applied to immunize prosecuting attorneys and similar individuals, the section is not restricted to legally trained personnel but applies to all employees of a public entity.”).)  Also, every investigation undertaken by CRD has the potential to result in a judicial proceeding; CRD has the power to prosecute violations of the Unruh Act by filing a civil action.  (Government Code §§ 12930 subd. (f), 12965.)  Accordingly, because actions undertaken by Defendant employees were in the course of an investigation with the potential to result in a judicial proceeding, they are statutorily immune under §821.6.

Section 820.2 also shields Defendant employees from liability because their investigation was a discretionary act.  Section 820.2 provides that “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.”  An exercise of discretion within the meaning of §820.2 means a “conscious balancing of risks and benefits.”  (Caldwell v. Montoya (1995) 10 Cal.4^th 972, 983.)  Where “individual [government employees] will be making assessments of the situation and of the relevant considerations and dangers in determining the best outcome”, the actions are discretionary.  (Recchia v. City of Los Angeles Dept. of Animal Services (9^th Cir. 2018) 889 F.3d 553, 564.)  Investigations are uniquely discretionary activities with highly subjective decisions.  Here, the Defendant employees conducted an investigation into Plaintiff’s complaint; they reviewed evidence presented by Plaintiff and other witnesses, and then based on their assessment of the evidence, they concluded that Plaintiff’s case should be closed on the basis of insufficient evidence. These are unquestionably discretionary acts, and therefore, Defendant employees are statutorily immune under §820.2. 

CRD is additionally immune under Gov. Code §815.2(b) which provides that a public entity cannot be held liable for the acts or omissions of its employees when those employees are themselves immune from suit.  (See Gillan v. City of San Marino (2007) 147 Cal.App.4^th 1033, 1050).  Defendant employees are immune from liability for the reasons set forth above.  Accordingly, CRD is also immune from liability under § 815.2(b).  

Plaintiff Has Not Proposed an Amendment That Would Cure Noted Defects

            Plaintiff has the burden to prove there is a reasonable possibility that the defects in his complaint could be cured by amendment.  (Vanacore & Associates v. Rosenfield (2016) 246 Cal.App.4^th 438, 454; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1497, fn. 19.)  To satisfy the burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”  (Vanacore, 246 Cal.App.4^th at 454.)  The assertion of an abstract right to amend does not satisfy this burden.  (Id.)  The plaintiff must clearly and specifically state ‘the legal basis for amendment, i.e., the elements of the cause of action,’ as well as the ‘factual allegations that sufficiently state all required elements of that cause of action.’ (Id.) 

The defects noted in this Order cannot be cured by amending the complaint.  CRD and its employees are insulated as a matter of law from liability.  Where the governing law does not allow for liability, a demurrer should be sustained without leave to amend.  (Cappuccio Inc. v. Harmon (1989) 208 Cal.App.3d 1496, 1502.)  Accordingly, the Court sustains the demurrer without leave to amend.  (See, e.g., State Dept of State Hospitals v. Super. Ct. of Napa County (2022) 84 Cal.App.5^th 1069, 1076-1079 (issuing writ of mandate directing trial court to sustain demurrer without leave to maned based on section 854.8 immunity); Ingram v. Flippo (1999) 74 Cal.App.4^th 1280, 1283, 1291-1293 (affirming order sustaining demurrer without leave to amend based in part on section 821.6 immunity); Cappuccio Inc., 208 Cal.App.3d at 1502 (affirming judgment sustaining demurrer without leave to amend based on section 821.6 and 815.2(b) immunity); Polonsky v. City of S. Lake Tahoe (1981) 121 Cal.App.3d 464, 467 (affirming judgment sustaining demurrer without leave to amend based on sections 818.4 and 818.8 immunity).) 

CONCLUSION

Based on the foregoing, the Court DENIES Plaintiff’s motion to strike the demurrer and SUSTAINS the demurrer without leave to amend.

IT IS SO ORDERED.

DATED: February 17, 2023                                                 ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court