Judge: Holly J. Fujie, Case: 21STCV16790, Date: 2022-10-07 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 21STCV16790    Hearing Date: October 7, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant State of California, acting by and through the California Highway Patrol (“CHP”) (“Moving Defendant”)

RESPONDING PARTY: Plaintiffs William Gonzalez (“William”) and Michael Gonzalez (“Michael”)[1] (collectively, “Plaintiffs”)

The Court has considered the moving, opposition and reply papers. 

BACKGROUND

            The currently operative second amended complaint (the “SAC”) alleges: violation of Civil Code section 52.1; (2) violations of 42 USC section 1983; (3)municipal liability – failure to train; (4) Fourth Amendment – excessive force; (5) substantive due process; (6) Fourth Amendment – denial of medical care; (7) municipal liability for unconstitutional custom, practice, or policy; (8) violations of Fourteenth Amendment; (9) intentional infliction of emotional distress; (10) negligent infliction of emotional distress; (11) negligence; (12) assault; (13) battery; and (14) violations of 42 USC section 1998. 

In relevant part, the SAC alleges: William and Michael, along with thousands of others, were out celebrating the Lakers’ 2020 NBA championship victory.  (SAC ¶ 2.)  They were eating near a taco truck when, suddenly, LAPD officers surrounded their general vicinity and opened fire.  (Id.)  William’s eye was hit by LAPD a hard-foam projectile shot by an LAPD officer.  (See SAC ¶¶ 2, 26.)

After being struck, William was led to the next street, where CHP officers and Los Angeles County Sheriff’s deputies were directing foot traffic.  (SAC ¶ 29.)  Michael and Plaintiffs’ sister asked for help or for permission to continue walking in the direction of their home, but the officers instructed them to sit in an adjacent parking lot to wait for an ambulance that a deputy had called.  (SAC ¶ 30.)  Plaintiffs waited for thirty minutes for an ambulance and were not allowed to leave the parking lot during this time.  (SAC ¶ 30.)  After thirty minutes and at Michael’s insistence, a deputy called an ambulance.  (Id.)  After the delay, William finally went to the hospital.  (SAC ¶ 31.)  Due to the injury, William had to have his right eye removed.  (SAC ¶ 34.) 

Moving Defendant filed a demurrer (the “Demurrer”) to the sixth, eighth, eleventh, twelfth, thirteenth and fourteenth causes of action on the grounds that the Complaint fails to allege sufficient facts to state a cause of action and is uncertain.

As a preliminary matter, Plaintiffs’ opposition (the “Opposition”) clarifies that only the sixth, eighth, and eleventh causes of action are alleged against Moving Defendant. Accordingly, the Court SUSTAINS the Demurrer to the twelfth, thirteenth and fourteenth causes of action without leave to amend as to Moving Defendant.

DEMURRER

Meet and Confer

The meet and confer requirement has been met.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  Demurrers for uncertainty are disfavored.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)  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.  (Id.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

The Court notes that the SAC does not comply with California Rules of Court (“CRC”), rule 2.112 because it does not allege which Plaintiffs are asserting which claims against which Defendant.  (See CRC, r. 2.112(3).)  As a result, as evidenced by the scope of the Demurrer, it is unclear which cause of action concerns which Defendant—the Opposition suggests that the claims alleged against Moving Defendant are also directed at yet-unidentified Doe Defendants who are CHP officers.  Moreover, the conduct underlying the sixth and eighth causes of action, both of which arise out of constitutional violations, is not certain.

The state courts of California should apply federal law to determine whether a complaint pleads a cause of action under section 1983 sufficient to survive a general demurrer.  (Catsouras v. Dept. of Cal. Highway Patrol (2010) 181 Cal.App.4th 856, 891.)  For the purposes of a demurrer to a section 1983 complaint, the allegations of the complaint are generally taken as true.  (Id.)  When a section 1983 complaint is prepared by counsel, the controlling standard is that an action may be dismissed for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.  (Id.)  Furthermore, a pleading is insufficient to state a claim under the Civil Rights Act if the allegations are mere conclusions.  (Id.)  Some particularized facts demonstrating a constitutional deprivation are needed to sustain a cause of action under the Civil Rights Act.  (Id.)

By the plain terms of section 1983, two—and only two—allegations are required in order to state a cause of action under that statute.  (Id. at 890.)  First, the plaintiff must allege that some person has deprived him of a federal right; second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.  (Id.)

Claims of failure to provide care for serious medical needs, when brought by a plaintiff who has been neither charged nor convicted of a crime, are analyzed under the substantive due process clause of the Fourteenth Amendment.  (Lolli v. County of Orange (9th Cir. 2003) 351 F.3d 410, 418-19.)  A plaintiff must show that: (1)  he was confined under conditions posing a risk of objectively, sufficiently serious harm; and (2) the officials had a “sufficiently culpable state of mind” in denying the proper medical care.  (Id. at 419.)

Here, the sixth cause of action for denial of medical care is alleged as a violation of the Fourth Amendment. The Court notes that the SAC does not explicitly allege that Plaintiffs were seized within the meaning of the Fourth Amendment, but the basis for this cause of action appears to be CHP officers’ requiring Plaintiffs to wait in a parking lot while restricting their movements by not allowing them to return to their home.  There are no allegations that Plaintiffs were charged with a crime and accordingly, this cause of action is properly brought under the Fourteenth Amendment rather than the Fourth Amendment.  (See Lolli v. County of Orange, supra, 351 F.3d at 418-19.) 

The eighth cause of action alleges that Plaintiffs were deprived of their Fourteenth Amendment rights by being deprived of fair procedures.  It is unclear if this claim is duplicative of the sixth cause of action.

The Court therefore SUSTAINS the Demurrer to the twelfth, thirteenth and fourteenth causes of action of the SAC as to Moving Defendant without leave to amend and SUSTAINS the Demurrer to all causes of action of the SAC with 20 days leave to amend so that Plaintiffs may clarify the pleading.

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 7th day of October 2022