Judge Holly J. Fujie, Case 21STCV16790 2023-01-24 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.

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

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

The currently operative third amended complaint (the “TAC”) 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) Fourteenth Amendment – denial of due process fair procedures; (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 TAC alleges: On the night of October 11, 2020, William, Michael, and Michael’s girlfriend, April Bran (“Bran”) were celebrating the Los Angeles Lakers’ 2020 NBA championship victory in downtown Los Angeles. (TAC ¶ 19.) Plaintiffs were eating near a taco truck when LAPD officers suddenly surrounded their general vicinity and opened fire. (See TAC ¶¶ 20-24.) William’s eye was hit by a hard-foam projectile shot by an LAPD officer. (See TAC ¶¶ 25-26.)

After being struck, William was led to the next street, where Moving Defendant’s officers were directing foot traffic. (TAC ¶ 28.) Michael and Bran asked for help or for permission to continue walking in the direction of their home, but Moving Defendant’s officers instructed them to sit in an adjacent parking lot to wait for an ambulance that a deputy had called. (TAC ¶ 29.) Plaintiffs waited for thirty minutes for an ambulance and were not allowed to leave the parking lot during this time. (Id.) After thirty minutes and at Michael’s insistence, a deputy called an ambulance. (Id.) After the delay, William went to the hospital. (TAC ¶ 30.) Due to the injury, William had to have his right eye removed. (TAC ¶ 33.)

Moving Defendant filed a demurrer (the “Demurrer”) to the third, sixth, eighth, tenth, eleventh, and fourteenth causes of action on the ground that the TAC fails to allege sufficient facts to constitute a cause of action. Moving Defendant also filed a motion to strike (the “Motion”) portions of the TAC concerning damages.

Moving Defendant’s Request for Judicial Notice is GRANTED. (See Evid. Code § 452, subd. (h); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376.)

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.)

Subject to the exceptions set forth in Government Code sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented. (Gov. Code § 945.4.) The presentation of a claim to a public entity and its rejection are prerequisites to maintaining suit against the entity. (Nguyen v. Los Angeles County Harbor/UCLA Medical Center (1992) 8 Cal.App.4th 729, 732 (citing Gov. Code §§ 905, 945.4).) Failure to comply with the mandatory requirements is fatal to the cause of action. (Id.)

Moving Defendant’s records do not reflect that Michael ever filed a claim with the State. (See RJN, Exhibit A.) Moving Defendant argues that Michael’s claims are barred because he did not comply with the Government Claims Act claim presentation requirements. Plaintiffs argue that the TAC sufficiently alleges that Plaintiffs collectively satisfied the claim presentation requirement. The TAC, however, only includes documentation of a claim filed by William. (See TAC ¶ 14, Exhibit 5.) The Court has taken judicial notice of Moving Defendant’s records and may therefore consider the absence of a claim filed by Michael in considering the sufficiency of the TAC’s allegations. (See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376.) The Court finds that Michael did not present his claim before initiating litigation against Moving Defendant. Plaintiffs raise no arguments to refute Moving Defendant’s contention that the limitations period has passed for Michael to timely present his claim. The Court therefore SUSTAINS the Demurrer to Michael’s claims in their entirety without leave to amend.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. (42 USC § 1983.) California state courts 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 California 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.)

Moving Defendant argues that the third cause of action fails to state a claim because the state is not subject to suit under section 1983. This argument also applies to the sixth and eighth causes of action, which are also alleged pursuant to section 1983, although the Court notes that Moving Defendant raises separate arguments to challenge the sufficiency of the allegations of these causes of action.[2]

States and state officers are not subject to section 1983. (See Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 654 (discussing Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 65-67).) Accordingly, because states and state officials are not “persons” under section 1983, they may not be sued under that section in federal or state court. (See id.) This limitation is based on statutory interpretation rather than Eleventh Amendment sovereign immunity. (Pierce v. San Mateo County Sheriff’s Dept. (2014) 232 Cal.App.4th 995, 1008-09.)

Moving Defendant is a state agency and is therefore not subject to liability under section 1983 in either state or federal court. (See Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 892; Pierce v. San Mateo County Sheriff’s Dept., supra, 232 Cal.App.4th at 1008-09.) The Court therefore SUSTAINS the Demurrer to the third, sixth, and eighth causes of action without leave to amend.

The tenth cause of action for negligent infliction of emotional distress, although labeled as being on behalf of all Plaintiffs, concerns harm suffered by Michael, and the TAC specifies that the claim is being asserted against Moving Defendant on Michael’s behalf. (See TAC ¶ 162.)

As discussed above, the Court has determined that Michael did not satisfy the claim presentation prerequisites for maintaining a civil action for damages against a public entity. The Court therefore SUSTAINS the Demurrer to the tenth cause of action without leave to amend.

The elements of negligence are: (1) duty; (2) breach; (3) causation; and (4) damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

Law enforcement officers, like other members of the public, generally do not have a legal duty to come to the aid of another person. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129.) Liability may be imposed if an officer voluntarily assumes a duty to provide a particular level of protection, and then fails to do so, or if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff. (Id.)

Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused. (Gov. Code § 820.2.) Whether or not a public employee is immune from liability under section 820.2 depends in many cases upon whether the act in question is “discretionary” or “ministerial.” (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1081.) Classification of the act as “discretionary” will not produce immunity if the injury to another results, not from the employee's exercise of “discretion vested in him” but from his negligence in performing it after having made the discretionary decision to do so. (Id.)

The TAC sufficiently alleges facts to state a negligence claim because the TAC alleges that Moving Defendant’s officers represented to Plaintiffs that they had called an ambulance and then forbade them from returning home, despite a delay in the ambulance arriving, which aggravated William’s injuries. Moreover, the TAC adequately alleges circumstances that exclude Moving Defendant’s officers from discretionary immunity since it alleges that they negligently exercised the decision to call an ambulance for William. (See TAC ¶¶ 29, 167.) The Court therefore OVERRULES the Demurrer to the eleventh cause of action.

On October 7, 2022, the Court sustained Moving Defendant’s demurrer to the section 1998 claim in the second amended complaint without leave to amend. Plaintiffs did not respond to Moving Defendant’s argument regarding the Court’s previous ruling on this claim. The Court therefore SUSTAINS the Demurrer to the fourteenth cause of action. (See Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1021 (2010) (issues not addressed in opposition briefs are conceded to the moving party).)

Under California Code of Civil Procedure (“CCP”) section 436, a motion to strike either: (1) strikes any irrelevant, false or improper matter inserted in any pleading; or (2) strikes any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

Moving Defendant seeks to strike the allegations concerning treble and punitive damages under Civil Code section 52, pre- and post-judgment interest, and injunctive relief, in the TAC’s prayer for relief.

Since the TAC does not allege a Civil Code section 52 claim against Moving Defendant, the Court GRANTS the Motion as to these damages without leave to amend. The Court likewise GRANTS the Motion as to injunctive relief, as this remedy concerns excessive force claims not alleged against Moving Defendant.

In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury. (Civ. Code § 3288.) Moving Defendant has not established that Plaintiff is wholly barred from seeking this relief. The Court therefore DENIES the Motion as to pre- and post-judgment interest.

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.

[1] The Court uses first names to distinguish persons with the same last name and intends no disrespect in so doing.

[2](See Azul-Pacifico, Inc. v. City of Los Angeles (9th Cir. 1992) 973 F.2d 704, 705 (a litigant complaining of a violation of a constitutional right must utilize section 1983).)