Judge Gail Killefer, Case 22STCV08788 2022-08-29 Tentative Ruling

MOTION: Defendant’s Demurrer to the Complaint; Defendant’s Motion to Strike Portions of the Complaint

TENTATIVE: Defendant LASD’s demurrer is sustained, without leave to amend. LASD’s motion to strike is moot. Defendant is to provide notice.

This action arises out of an alleged conspiracy to violate the rights of Jeffrey J. Olin (“Plaintiff”), who is an alleged victim of parental alienation. Plaintiff claims that a conspiracy began three and a half years ago to commit these violations of Plaintiff’s constitutional and statutory rights. Plaintiff names as Defendants: Commissioner Glenda Veasey, Judge Lawrence Riff, the Superior Court of California County of Los Angeles, Deputy David Wing, Detective David Wing, Los Angeles County Sheriff’s Department [“LASD”], Kelley Rene Olin (“Kelley”) [Plaintiff’s ex-wife], Rombro & Manley, LLP (a law firm), Roger Rombro, Melinda A Manley, and Does 1-50.

Plaintiff’s complaint alleges the conspiracy began shortly after Plaintiff sent ex parte notice to Kelley via text message of the parental alienation on July 21, 2018. Plaintiff further alleges the conspiracy grew to include LASD detectives and judicial officers. On October 3, 2019, a restraining order was filed against Plaintiff. Plaintiff alleges the conspirators plotted to have Plaintiff involuntarily committed (“5150 Hold”). On October 4, 2019, Plaintiff was put under a 72-hour 5150 Hold, and his property was allegedly seized and converted.

Plaintiff’s operative Complaint includes the following causes of action: (1) publication of private facts, concerning the 5150 hold, (2) intrusion into private matters, (3) false imprisonment, (4) intentional infliction of emotional distress, (5) intentional interference with parent-child relationship (Civ. Code § 49), (6) denial of due process, (7) violation of civil rights (42 USC § 1983), (8) interference with exercise of civil rights (Civ. Code § 52.1), and (9) Monell liability.[1]

Defendant LASD now demurs to Plaintiff’s Complaint. Plaintiff opposes the motion.

CCP § 430.41 provides that a Defendant, prior to filing a demurrer, “shall meet and confer in person or by telephone” with Plaintiff to determine whether an agreement can be reached regarding the objections to be raised in the demurrer. (CCP § 430.41(a).) Further, as part of the meet and confer process, the demurring Defendant “shall identify all of the specific causes of action that it believes are subject to the demurrer and identify with legal support the basis of the deficiencies.” (CCP § 430.41(a)(1).) The Plaintiff is then to respond by providing “legal support for its position that the pleading is legally sufficient,” or, alternatively, “how the complaint…could be amended.” (Id.) This meet and confer shall occur “at least five days before the date the responsive pleading is due.” (CCP § 430.41(a)(2).) Finally, the demurring Defendant is to file and serve a declaration with the demurrer stating either:

“(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to the demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”

Defendant LASD submits the declaration of Anita Susan Brenner (“Brenner”) to demonstrate that they have fulfilled their statutory meet and confer obligations pursuant to CCP § 430.41 prior to filing the instant demurrer. Brenner attests that they met and conferred by sending a letter dated July 13, 2022 to the plaintiff, and the parties corresponded through email about the issues raised. (Brenner Decl. ¶¶3-5.) Brenner attests Plaintiff responded to the letter, also identifying himself as an attorney. (Brenner Decl. ¶5, Exh. B.) Further email correspondences have taken place. (Brenner Decl. ¶¶6-8, Exh. C.)

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Defendant LASD first contends that Plaintiff’s Complaint is barred in its entirety because the LASD is not a suable entity. (Motion, 4.) LASD thus contends “under state law, the County of Los Angeles is an entity capable of being sued, but the Sheriff’s Department is not. California law provides that the ‘Los Angeles County Sheriff’s Department’ is not a suable entity.” (Motion, 4; Wilkinson v. Lund (1929) 102 Cal. App. 767.) Further, LASD contends the entirety of the Complaint is uncertain. (Motion, 9-10.) Next, Defendant contends that each of the alleged causes of action fail to state viable claims as to the LASD. (Motion, 5-9.)

In opposition, Plaintiff cites to inapposite supporting authorities to contend that the LASD operates as a suable, public entity. (Opp., 2-4.) Plaintiff cites to claims of injunctive relief against Sheriff’s Departments to say that the current action, not for injunctive relief, should also qualify the LASD as a suable entity. (Opp., 4-6.) Plaintiff also cites Summers v. Tice (1948) 33 Cal.2d 80, 88 to suggest the “the burden for which specific officers of the LASD should be named as individual defendants should be upon the LASD.” (Opp., 5.) The cited authority does not, however, support that proposition, and Plaintiff has failed to cite further supporting authority to show such a burden-shifting regime to operate here. Plaintiff also contends that each cause of action has been adequately pled. (Opp., 5-17.) Lastly, Plaintiff alleges that Defendant’s counsel should be subject to sanctions because counsel “has intentionally misstated the law multiple times in the Demurrer,” and alleges LASD has misled the court in citing Streit v. County of Los Angeles, 236 F.3d 552, 566 (9th Cir. 2001) to suggest the LASD is not a separate suable entity. (Opp., 17-18.) Plaintiff contends “Plaintiff is endeavoring to exhibit the epitome of detached professionalism in this

extremely personal matter, but this is made very difficult when opposing counsel outright lie.” (Opp., 18.)

In its reply, Defendant LASD correctly explains the Streit holding to involve inapposite circumstances to the matter at hand,

“Plaintiff references Streit v. County of Los Angeles (9th Cir, 2001) 236 F.3d 552, 565-566, which was a consolidation of eight separate class actions, with multiple plaintiffs, in challenge to policies that resulted in repeated over detention of released inmates in the County jails. Unlike the case at bar, several of the consolidated lawsuits sought injunctive relief. Other lawsuits correctly named additional entities and officers. As a result, the Ninth Circuit in Streit distinguished between the law enforcement function of LASD and the jail function and noted ‘the LASD does not act in a law enforcement capacity when administering the County's jail release policy. The sheriffs have exclusive responsibility for running the county jails. Cal. Govt. Code 26605. But the counties retain the ultimate authority over the local jails through their fiscal and administrative oversight. Cal. Govt. Code 23013, 25303.’ (Streit, supra, 236 F. 3d at 567.)

The suable entity determination depends on the nature of the claim and the relief sought. The Defendant can be sued in some circumstances but not in others. In the present lawsuit, Plaintiff Olin does not challenge the management of the local jails. Instead, he challenges the law enforcement function of the LASD. Nor does he seek a writ against LASD.

In some settings, the LASD can be sued, but not in the context of a money damages

lawsuit, such as the lawsuit before this Court. The gravamen of the Complaint is a theory of conspiracy resulting in subjecting Plaintiff to a ‘5150’ hold. The Complaint alleges that the conspiracy began three and a half years ago (Cmplt, ¶16) with the purpose of ‘two women maliciously agreeing to work together to destroy Plaintiff’s relationship with his only child and to commit violations of Plaintiff’s constitutional and statutory rights.’ Even if this were a 42 USC §1983 case, and it is not, to hold a local entity liable under Section 1983, Plaintiff would have to

allege that “the challenged conditions were part of a policy, custom or practice officially adopted by [those] defendants.’ (Upshaw v. Alameda Cty. (N.D. Cal. 2019) 377 F. Supp. 3d 1027, 1032, citing to Monell v. Dep’t of Soc. Servs. (1978) 436 U.S. 658.)” (Reply, 4-5.)

The court agrees with Defendant and finds the Complaint to be insufficiently pled with regards to the nature of the claims against Defendant LASD as a suable entity. As such, the court sustains Defendant’s demurrer to the entire Complaint.

In the alternative, liberally construing the allegations of the Complaint in favor of Plaintiff, the court finds that the Defendant’s contentions regarding uncertainty and the lack of allegations which create a sufficient nexus to survive the demurrer to be correct. (Demurrer, 5-10.) As such, the court finds Plaintiff’s Complaint to be fatally uncertain, and insufficiently pled, as to Defendant LASD in its entirety.

Having sustained Defendant’s demurrer, the court finds LASD’s motion to strike moot.

Defendant LASD’s demurrer is sustained, without leave to amend. LASD’s motion to strike is moot. Defendant is to provide notice.

[1] The caption lists the 8th cause of action for interference with exercise of civil rights (Civ. Code § 52.1), as the 7th cause of action, and lists the 7th cause of action for violation of civil rights (42 USC § 1983), as the 8th cause of action.