Judge: Holly J. Fujie, Case: 21STCV16790, Date: 2023-09-14 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: September 14, 2023    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”) (collectively, “Plaintiffs”)^[1]

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

BACKGROUND

            This action, which arises out of alleged law enforcement misconduct, was initiated on May 4, 2021.  On October 28, 2022, Plaintiffs filed the operative third amended complaint (the “TAC”) alleging: (1) 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. 

            On January 24, 2023, the Court sustained Moving Defendant’s demurrer (the “TAC Demurrer”) to the entirety of the claims asserted by Michael in the TAC and to the third, sixth, eighth, tenth, and fourteenth causes of action alleged in the TAC without leave to amend.  The Court overruled the TAC Demurrer to the eleventh cause of action.

On August 1, 2023, Moving Defendant filed a motion to dismiss the eleventh cause of action against the unnamed officers named as Doe Defendants to the claim pursuant to California Code of Civil Procedure (“CCP”) section 581, subdivision (f)(1).  On August 30, 2023, Plaintiffs filed an amendment identifying Officer McElroy (“Officer McElroy”) as Doe 1.

REQUEST FOR JUDICIAL NOTICE

            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.) 

DISCUSSION

Under CCP section 581, subdivision (f)(1), the court may dismiss a complaint when either party moves for dismissal after a demurrer to the complaint is sustained without leave to amend.  (CCP § 581, subd. (f)(1).)

Basis for Motion

A basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought pursuant to CCP section 1010 and California Rules of Court, rule 3.110(a), and courts generally may consider only the grounds stated in the notice of motion.  (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) 

The Motion identifies that it seeks the dismissal of unnamed and unserved Doe Defendants and cites to CCP section 581 as the statutory basis for the relief sought.  To the extent that the Motion argues that unnamed CHP officers should be dismissed based on the Court’s ruling on the TAC Demurrer, the Court observes that the TAC Demurrer was brought solely on Moving Defendant’s behalf and the Court’s ruling did not address individual defendants.

The Motion also argues that the Court should dismiss any unserved individual Defendants pursuant to CCP section 583.130, which provides that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.  (See CCP § 583.130.)  CCP section 583.130 does not, however, state a ground for dismissal.  The remainder of the Motion, which makes substantive arguments regarding the sufficiency of the TAC’s allegations to state a claim against any unnamed officer, does not specify a statutory basis for dismissal.

Based on the unclear basis for dismissal and Plaintiffs’ identification of Officer McElroy as Doe 1, the Court DENIES the Motion in its entirety.[2]

Moving party is ordered to give notice of this ruling.

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 14th day of September 2023