Judge: Gregory Keosian, Case: 21STCV40762, Date: 2022-09-27 Tentative Ruling

Case Number: 21STCV40762    Hearing Date: September 27, 2022    Dept: 61

Defendant County of Los Angeles’s Demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to the first, fourth, and sixth causes of action, and SUSTAINED with 30 days leave to amend as to the second and third causes of action for wrongful death and survivorship, and OVERRULED as to the fifth cause of action for intentional infliction of emotional distress.

Defendant to give notice.

I.                   DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

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. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant County of Los Angeles (Defendant) demurrers to the entire FAC on two grounds. First, it argues that the first through fourth and sixth causes of action are barred by issue preclusion, because summary judgment was previously granted against Plaintiff’s federal civil rights claims on the grounds that the defendant officers had acted reasonably and not in violation of Decedent Paul Rea or Plaintiff Tommy Sanchez’s civil rights. (Demurrer at pp. 17–24.) Additionally, Defendant argues that Plaintiffs’ claim for intentional infliction of emotional distress (IIED) — which concerns a separate incident — fails to allege facts constituting outrageous conduct or severe emotional distress. (Demurrer at pp. 24–25.)

The doctrine of issue preclusion “precludes relitigation of issues argued and decided in prior proceedings.” (Id. at p. 227.) Issue preclusion “applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (DKN Holdings v. Faerber (2015) 61 Cal.4^th 813, 825.) Issue preclusion does not bar entire causes of action and may be asserted by one who was not a party to the first action. (Id. at p. 824.)

Defendant asks this court to take judicial notice of the order granting Defendants’ motion for summary judgment in Estate of Paul Rea, et al. v. County of Los Angeles, et al., entered on October 23, 2020, in the United States District Court for the Central District of California. The court there found no genuine issues of material fact existed as to whether Defendant Deputy Hector Saavedra-Soto (Saavedra) violated Decedent’s rights under the Fourth Amendment to the United States Consitution, as Saavedra “had ample probable cause to believed that [Decedent] Rea posed an immediate threat of serious bodily injury to himself.” (RJN Exh. B at p. 10.) The court stated that “Rea turned a routine traffic stop into a dangerous and rapidly escalating situation” by striking Saavedra twice in the head, giving him a concussion, and then reaching for a gun that he had kept in his waistband. (Id. at p. 11.) Thus Decedent possessed no claim for violation of the Fourth Amendment based on Saavedra shooting him, and Garcia had no claim for violation of Fourteenth Amendment right to familial association with Decedent. (Id. at p. 15.) In the same ruling, the court held that Defendant Deupty Argelia Huerta (Huerta) did not violate Plaintiff Tommy Sanchez’s (Sanchez) right to be free from unreasonable seizure by stopping the vehicle and cuffing Sanchez in the back of a patrol car. This was because the evidence showed that Sanchez was speeding and had failed to stop at a sign, and further because Sanchez, the driver of the vehicle, showed signs of intoxication by marijuana. (Id. at p. 18.)

Based on the above findings, Defendant argues that Plaintiffs’ claims are legally foreclosed. Because making a claim for assault and battery against a police officer requires a showing that the “use of force was unreasonable,” which is the same analysis applied “under the reasonableness standard of the Fourth Amendment to the United States Constitution.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 527; see also Murchison v. County of Tehama (2021) 69 Cal.App.5^th 867, 898 [“As to plaintiff's claims for battery by a peace officer and assault, the standard for proving those state law claims is the same standard applied to section 1983 actions.”].) Defendant also argues that Plaintiffs’ claims for wrongful death and survivorship, founded in negligence, are also barred by this earlier ruling, as the use of reasonable force in the shooting necessarily means that no duty of care was breached. (See Hayes v. County of San Diego (2013) 57 Cal.4th 622, 629.) And as for Sanchez, his false imprisonment claim requires a showing of confinement “without lawful privilege,” which is foreclosed by the federal court’s finding that his stop and detention were lawful. (See Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 496.) And based on all of the above, Plaintiffs’ claims under the Bane Act, Civil Code § 52.1, which requires a showing that the defendant interfered or attempted to interfere with Plaintiffs’ lawful rights, is foreclosed by findings that their actions were lawful under the Constitution. (Civ. Code § 52.1, subd. (b).) Thus, for all of these claims, Defendant argues that identical issues were actually and necessarily litigated in the prior action, and resulted in a final decision against Plaintiffs, requiring dismissal of their claims.

Plaintiffs in opposition make no argument in support of their claims for assault and battery, false imprisonment, or the Bane Act. They instead argue that issue preclusion does not bar the litigation of their claims based on negligence, because the standard of reasonableness applied to assess excess force claims under the Fourth Amendment is different from the standard to be applied in state law negligence claims against police officers. (Opposition at pp. 3–6.) Specifically, the California Supreme Court has held that while reasonableness under the Fourth Amendment focuses “narrowly . . . on the moment when deadly force is used,” the state and federal standards are not the same. (Hayes v. County of San Diego (2013) 57 Cal.4^th 622, 638.) The Fourth Amendment analysis places “less emphasis on preshooting conduct” in assessing the totality of the circumstances. (A. G., 1-4 v. City of Fresno (9th Cir. 2020) 804 Fed.Appx. 701, 703.) Plaintiffs thus argue that because no determination was made as to the negligence of the officers under California state law, their claims founded in negligence — wrongful death and survivorship — are not precluded by any issues decided in the prior action.

Plaintiffs’ argument is unpersuasive, because the only facts contained in the FAC that are alleged to show the lack of reasonable care for the purposes of the wrongful death and survivorship claims were specifically and necessarily decided against Plaintiffs in the prior action. Plaintiffs allege that the traffic stop was unlawful and pretextual. (FAC ¶¶ 27, 31.) But the federal court found that the stop was supported by “ample reasonable suspicion.” (RJN Exh. B at p. 18.) The FAC alleges that the search and detention of Sanchez was unlawful and made without probable cause. (FAC ¶ 34.) But the federal court found that Sanchez’s detention was justified by the deputy’s decision to perform a field sobriety test, which was itself justified by undisputed facts. (RJN Exh. B at p. 18.) The FAC alleges that after complying with a deputy’s order to exit the vehicle, Decedent attempted to flee the scene, and did not strike or assault the deputy. (FAC ¶ 29.) But the court found that, after exiting the vehicle and consenting to be searched, Decedent without warning turned and struck the deputy twice in the head, giving him a concussion. (RJN Exh. B at p. 3.) The court also found that the brief search and the “bear hug” restraint used by the deputy on Decedent after being struck revealed the presence of a gun in Decedent’s waistband, which Decedent, upon freeing himself from the deputy’s restraint, was reaching for when he was shot. (Ibid.) Although the FAC contains a broad allegation of “negligent tactics” (FAC ¶ 54), the FAC does not elucidate this allegation except by pleading contentions that were alleged in the prior action (RJN Exh. A, ¶¶ 32, 34, 39.) and which were adversely decided against them. Therefore, Plaintiffs are precluded from relying on these same issues to support their wrongful death and survivorship claims.

This leaves Plaintiffs’ claim for intentional infliction of emotional distress, alleged against Defendant Saavedra. The elements for a claim of intentional infliction of emotional distress (IIED) are “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 228–29; see also Stoiber v. Honeychuck (“Stoiber”) (1980) 101 Cal.App.3d 903, 921.)  In order for conduct to be considered “outrageous” for the purposes of an IIED claim, it “must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 533, internal quotation marks omitted.) Moreover, the emotional distress required for an IIED claim must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)

The basis for Plaintiffs Garcia and Jayleen Rea’s IIED claim is as follows. At some point after the shooting occurred, Plaintiffs were at an outdoor dining area served by various food trucks. (FAC ¶ 72.) Defendant Hector Saavedra, the man who had shot Decedent — Garcia’s son and Jayleen’s brother — approached them with a plate of tacos and asked if they wanted some. (FAC ¶ 72.) Saavedra intended by this approach to harass, intimidate, and terrify Plaintiffs, and seeing his objective accomplished, sneered and walked away. (FAC ¶ 72.) Plaintiffs and Saavedra knew and recognized one another, as Saavedra had previously driven past their home and past the monument erected where Decedent was killed, where Plaintiffs and their family frequently congregated after the shooting. (FAC ¶ 73.)

These allegations are sufficient to support a claim of outrageous conduct. Defendant argues that the claim consists solely of the facetious presentation of a plate of tacos, and analogizes the conduct alleged to the “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” often held to be beyond the bounds of the IIED tort. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) This is, however, to ignore the context of both the incident and the other conduct alleged on the part of Defendant Saavedra. “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372.) Here, the complaint alleges that all three of these factors were present: Saavedra was not merely an acquaintance, but the law enforcement officer who had killed Plaintiffs’ son and brother; he is alleged to have known of Plaintiffs’ susceptibility to distress, by virtue of their recent bereavement; and he is alleged to have acted specifically with the intention of causing them further distress. What’s more, this contact is not alleged as an isolated incident, but rather as following “various occasions” in which Saavedra drove by Plaintiffs’ house and the memorial to Decedent. (FAC ¶ 73.) These allegations are sufficient to place the outrageousness of the conduct alleged within the bounds of reasonable debate. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 [“Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.”].)

Defendant argues that, assuming the existence of outrageous conduct, Plaintiffs do not adequately plead the existence of emotional distress. (Demurrer at p. 25.) Allegations of low-level “discomfort, worry, anxiety, upset stomach, concern, and agitation” do not rise to the severe emotional distress required for the IIED tort. (See Hughes, supra, 46 Cal.4th at p. 1051.) Here, however, Plaintiffs allege sufficient distress. They allege that they were “terrified scared, and emotionally traumatized” by Saavedra’s approach, that he caused them “great pain,” that they were “intensely started and made to suffer great fear and anger, and both of them cried from the trauma.” (FAC ¶ 73.) Plaintiffs’ allegations exceed the complaints of anxiety and upset stomach raised in the cases cited by Defendant.

Accordingly, the demurrer is SUSTAINED as to the first, fourth, and sixth causes of action, without leave to amend, SUSTAINED as to the second and third causes of action with leave to amend, and OVERRULED as to the and fifth cause of action.