Judge: Gregory Keosian, Case: 21STCV40762, Date: 2023-03-14 Tentative Ruling
Case Number: 21STCV40762 Hearing Date: March 14, 2023 Dept: 61
Defendant
County of Los Angeles’s Demurrer to the Second Amended Complaint is SUSTAINED as
to the first and second causes of action, without leave to amend.
David
P. Blanke’s Application to Appear Pro Hac Vice for Defendant Hector
Saavedra-Soto is GRANTED.
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
second amended complaint (SAC), particularly the first and second causes of
action for wrongful death and survivorship. Defendant argues that the new
allegations submitted after this court’s ruling on Defendant’s previous
demurrer on September 27, 2022, are barred by the sham-pleading doctrine and by
issue preclusion, given the federal court ruling granting Defendant summary
judgment in their favor. (Demurrer at pp. 16–19.)
The sham pleading doctrine applies
“where a party files an amended complaint and seeks to avoid the defects of a
prior complaint either by omitting the facts that rendered the complaint
defective or by pleading facts inconsistent with the allegations of prior
pleadings.” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.)
In such a circumstance, the court make require “that the pleader explain the
inconsistency.” (Ibid.) If the pleader fails to explain to the court’s
satisfaction, “the court may disregard the inconsistent allegations and read
into the amended complaint the allegations of the superseded complaint.” (Ibid.)
Here, the SAC includes new allegations concerning the
wrongful death and survivorship causes of action asserted for the death of Paul
Rea (Decedent). Where the prior complaint contained allegations of an illegal
traffic stop and of excessive force, which were previously adjudicated in federal court, Plaintiffs now include
allegations that Defendant officers Hector Saavedra-Soto and Argelia Huerta
negligently failed to perform a “felony stop” of Decedent’s vehicle based on
their suspicion that the occupants of the vehicle were involved in felony
crimes including possession of drugs and weapons. (SAC ¶ 24.) Such a stop would
have involved ordering the suspects out of the vehicle one by one, and onto the
ground for searching. (SAC ¶ 25a.)
The inclusion of these allegations
contradict Plaintiffs’ prior allegations, but this is not a sham pleading. It
is rather an attempt by Plaintiffs to conform their pleadings to adjudicated
facts. As this court held in sustaining the prior demurrer, Plaintiffs can no
longer maintain claims based on allegations that the traffic stop was unlawful,
or that Defendants used excessive force. Those allegations have been
conclusively adjudicated against them in federal court, and they are precluded
from relitigating those same issues here. (See (DKN Holdings v. Faerber (2015) 61
Cal.4th 813, 825 [discussing issue preclusion].) The present allegations are rather an attempt to plead
state-law claims for negligence, which the federal court did not decide. There
are “differences between federal constitutional liability and state tort
liability” in the realm of excessive force, with constitutional standards
focusing “more narrowly than state tort law on the moment when deadly force is
used,” and state negligence standards focusing on “the totality of
circumstances surrounding the shooting, including the officers' preshooting
conduct.” (Hayes v. County of San Diego (2013) 57 Cal.4th
622, 638.) The remaining negligence claims are founded in this law.
However, Plaintiffs’ new allegations are barred by the
doctrine of issue preclusion, because they are founded upon an alleged reason
for the stop that differs from the reason previously determined by the federal
court. Issue preclusion bars relitigation of an issue “(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, supra,
61 Cal.4th at p. 825.) Here, the allegation of police negligence is
supported by the contention that the defendant officers “suspected that the
occupants of the vehicle were involved in felony crimes related to the
possession of drugs and weapons.” (SAC ¶ 24.) This allegation, however,
contradicts the findings made by the federal court in granting summary
judgment, where the court determined that the stop was lawful because it was
supported by observations that the driver “was speeding, had failed to stop at
a stop sign, and the officers suspected he might be driving a stolen car.” (RJN
Exh. B at pp. 2, 18.) The federal court thus rendered final judgment on the
identical issue of the reason for the stop, which was an issue actually
litigated and necessarily decided in determining that the stop was lawful.
Accordingly, the
demurrer is SUSTAINED as to the first and second causes of action, without
leave to amend.
II.
PRO
HAC VICE
“A person who is not a member of the State Bar of California but
who is a member in good standing of and eligible to practice before the bar of
any United States court or the highest court in any state . . . and who has
been retained to appear in a particular cause pending in a court of this state,
may in the discretion of such court be permitted upon written application to
appear as counsel pro hac vice, provided that an active member of the State Bar
of California is associated as attorney of record.” (Cal. Rules of Court
(“CRC”) Rule 9.40(a).) An applicant may not be a resident of the State of California,
regularly employed in the State of California, or regularly engaged in
substantial business, professional, or other activities in the State of
California. (CRC 9.40(a)(1–3.)
“A person desiring to appear as counsel pro hac vice in a
superior court must file with the court a verified application together with
proof of service by mail in accordance with Code of Civil Procedure section
1013a of a copy of the application and of the notice of hearing of the
application on all parties who have appeared in the cause and on the State Bar
of California at its San Francisco office.” (CRC 9.40(c)(1).) Notice must be
given sixteen days before the hearing.
“The application must state; (1) The applicant's residence
and office address; (2) The courts to which the applicant has been admitted to
practice and the dates of admission; (3) That the applicant is a member in good
standing in those courts; (4) That the applicant is not currently suspended or
disbarred in any court; (5) The title of court and cause in which the applicant
has filed an application to appear as counsel pro hac vice in this state in the
preceding two years, the date of each application, and whether or not it was
granted; and (6) The name, address, and telephone number of the active member
of the State Bar of California who is attorney of record.” (CRC 9.40(d)(1–6.)
Additionally, a $50 must be paid to the California Bar. (CRC 9.40(e).)
The present
application pertains to David P. Blanke, whom Defendant Hector Saavedra-Soto
seeks to have admitted pro hac vice. Blanke is an active member of the
Texas bar, without suspension or disbarment, who resides in Texas, and has
several times appeared pro hac vice in California in state and federal court.
(Planke Decl. ¶¶ 1–7.) The application comports with the above requirements.
The pro hac vice application is therefore GRANTED.