Judge Gail Killefer, Case Number: 23STCV16180, Date: 2024-03-26 Tentative Ruling

CASE NAME: Estate of Reginald Humphry by and through, Deana Dodd, et al. v. City of Los Angeles

TENTATIVE: Defendant City’s MJOP is granted with leave to amend. Plaintiff is given 30 days leave to amend the Complaint. OSC Re. Amended Complaint set for April 30, 2024, at 8:30 a.m. Defendant to give notice.

On July 11, 2023, the Estate of Reginald Humphry by and through, Deana Dodd, as Administratrix of the Estate (hereinafter “Plaintiff”) filed a Complaint against the City of Los Angeles (“Defendant City”). The Complaint alleges four causes of action: (1) Civil Rights Violation (Civ. Code, §§ 51.7, 52.1(b), and 52.1(h)); (2) Assault and Battery (Gov. Code, § 820); (3) False Imprisonment (Gov. Code, § 820); and Negligence (Gov. Code, § 820.)

On January 3, 2023, Defendant City filed a Motion for Judgement on the Pleadings (“MJOP”). Plaintiff filed opposing papers on March 7, 2024. Defendant City filed a Notice of Non-Opposition on March 22, 2023. The matter is now before the court.

motion for judgment on the pleadings[1]

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)¿¿

Plaintiff filed opposing papers on March 7, 2024, with proof of service attesting to service by email. On March 22, 2024, Defense counsel filed a declaration asserting that no opposition papers had been received by mail, email, or any other means. (Ford Decl. ¶ 2.) The court will proceed to address the Motion on the merits. If Defendant City feels it has been prejudiced by the fact that it did not have notice that an opposition to the Motion had been filed and did not have the opportunity to reply, the court is amenable to continue the hearing to allow Defendant City an opportunity to reply. However, the court feels that any prejudice is mitigated by the fact that the court is inclined to grant Defendant City’s Motion for the reasons outlined below.

This action arises out of an incident that occurred on July 5, 2022, in the City of Wilmington, CA which resulted in the death of the decedent, Reginald Humphry. (Compl. ¶ 7.) Officers from the Los Angeles Police Department (“LAPD”) responded to a call regarding a possible assault with a deadly weapon suspect. (Comp. ¶ 7.) The Complaint alleges that LAPD officers shot the Decedent with a beanbag shotgun, causing the Decedent to allegedly drop what was in his hands and thereafter the Defendant Does 1 to 20 drew their weapons and shot the decedent multiple times, causing the decedent to die later in the hospital. (Compl. ¶¶ 10, 11.)

Defendant City now demurs on the basis that the Complaint fails to plead facts sufficient to sustain claims against the city. “‘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.’” (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App 4th 1056, 1061 citing Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) “[P]ublic entities may only be held liable only if a statute is found declaring them to be liable.” (Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932.)

Here, the Complaint fails to allege a statutory basis that would permit Defendant City to be held liable directly for the actions or inactions of several Doe Defendants. Nor does the Complaint allege a statutory basis that would permit Defendant City to be held vicariously liable for the acts or omissions of the Doe Defendants.

Plaintiff’s only statutory reference is to Gov. Code § 820 which imposes direct liability on public employees but not a direct liability on government entities.[2] For example, in Scruggs v. Haynes (1967) 252 Cal.App.2d 256, the appellate court found that the government entity could be held liable for the acts of its police officers pursuant to Gov. Code § 815.2. (See id. at p. 268 [“It follows that appellant city is not immune under subdivision (b) of section 815.2, and is vicariously liable under subdivision (a) thereof.”].) In Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, the City was held liable under the doctrine of respondent superior pursuant to Gov. Code § 815.2. (Id. at p. 209 [“The doctrine of respondeat superior applies to public and private employers alike”].) For example, in Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1178, the liability against the public entities under the Bane Act was premised on breach of mandatory duty under Gov. Code § 815.6, direct liability under Health & Saf. Code, § 1799.107; and vicarious liability under § 815.2. In O'Toole v. Superior Court (2006) 140 Cal.App.4th 488, 493, liability under the Bane Act was brought pursuant to breach of mandatory duty under Gov. Code § 815.6 and Pen. Code, § 626.6.

Here, the Complaint makes no reference to Gov. Code § 815.2 or any other statute that would permit imposing liability on Defendant City. In a conclusory manner, the Complaint asserts that Does 1 to 40 were all acting within the scope of their employment without stating facts to support the allegation. (See Compl. ¶ 4.) “It is settled law that a pleading must allege facts and not conclusions, and that material facts must be alleged directly and not by way of recital.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 53.) Because on demurrer conclusions of law are not admitted, the Complaint is devoid of allegations to support the finding that the Doe Defendants were acting within the scope of their employment when they shot the decedent. Lastly, Plaintiff must identify the individual officers and what act or omission they engaged in that gives rise to the officer’s tort liability sufficient to show that Defendant City can be held vicariously liable. (Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, 945 [“[I[a specific individual officer has not engaged in an act or omission giving rise to that officer's tort liability, the City cannot be held vicariously liable”].)

Defendant City further asserts that its officers are immune from liability. (See Pen. Code, § 835(a).) While Defendant bears the burden of proving its affirmative defenses, it is Plaintiff’s responsibility to plead facts to show that Defendant City is not immune from liability. Here no facts are alleged to show that Doe Defendants owed a duty or that the Doe Defendants are not entitled to immunity. “It is a plaintiff's responsibility to plead facts sufficient to show their cause of action lies outside the breadth of any applicable statutory immunity.” (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585 [internal citation and quotation marks omitted].)

Defendant City’s MJOP is granted with leave to amend. Plaintiff is given 30 days leave to amend the Complaint. OSC Re. Amended Complaint set for April 30, 2024, at 8:30 a.m. Defendant to give notice.

[1] CCP § 439 requires the moving party to meet and confer in person or by telephone with the party who filed the pleading before filing a motion for judgment on the pleadings. Defense counsel asserts he tried to meet and confer with Plaintiff before filing this action, but no resolution was reached. (Smith Decl.¶¶ 3,4.) The court is satisfied that the meet and confer requirement has been met.

[2] Government Code § 820(a) states in the relevant part: “Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.”