Department 30, Spring Street Courthouse

January 10, 2023

21STCV20527

Demurrer filed by Defendant Los Angeles County

The demurrer is sustained with leave to amend as to Defendant Los Angeles County.

Any first amended complaint must be filed and served within 45 days after the date of this order.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

This is an action for false imprisonment, assault, battery, negligent use of force, negligent supervision, intentional infliction of emotional distress, and negligent infliction of emotional distress arising from an encounter with police which took place in March 2020. Plaintiff Leticia Vasquez filed her Complaint against Deputy S. Morales, Sgt. Lopez, Deputy Hernandez, Deputy Magdaleno, Los Angeles County, and the Los Angeles County Sheriff’s Department on June 1, 2021.

Defendant Los Angeles County (“County”) filed its demurrer on December 12, 2022.

Moving Arguments

County demurs to Plaintiff’s Complaint on the grounds that (1) the Complaint does not state facts sufficient to constitute a cause of action under Code Civ. Proc., section 430.10(d) and (2) the pleading is uncertain under Code Civ. Proc., section 430.10(f).

Opposing Arguments

None filed. Plaintiff filed a First Amended Complaint on January 3, 2023.

Reply Arguments

County argues that Plaintiff’s FAC is untimely

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

Here, counsel for County testifies that she attempted to contact Plaintiff repeatedly requesting to meet and confer and received no response. County made good faith attempts at meeting and conferring with Plaintiff, satisfying meet and confer requirements.

County demurs to the Complaint in its entirety on the grounds that (1) the Complaint does not state facts sufficient to constitute a cause of action under Code Civ. Proc., section 430.10(d) and (2) the pleading is uncertain under Code Civ. Proc., section 430.10(f).

The Court notes that Plaintiff filed a First Amended Complaint on January 3, 2023. Code Civ. Proc., section 472 provides that a party may “amend its pleading once without leave of court at any time…after a demurrer or motion to strike is filed but before the demurrer or motion is to be heard if the amended pleading is filed and served no later than the date for filing an opposition o the demurrer or motion to strike.” (Code Civ. Pro., section 472(a).)

Here, County filed its demurrer on December 12, 2022. Plaintiff’s opposition was due on December 27, 2022. Plaintiff filed her FAC on January 3, 2023. Thus, the FAC is untimely.

 

County argues that the Complaint fails to state a claim against Los Angeles County because Plaintiff’s six causes of action are all common law torts and there is no common law tort liability for public entities in California.

Government Code § 811.2 broadly defines the term “public entity” to include “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.” 

 

Under the Government Claims Act, “[a] public entity is not liable for an injury . . .” [e]xcept as otherwise provided by statute . . ..”  (Gov. Code, section 815; State ex rel. Department of California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1009.) A plaintiff claiming direct tort liability against a public entity must identify a specific statute declaring the entity to be liable, or at least creating some specific duty of care by the agency in favor of the injured party, and not on the general tort provisions of Code Civ. Proc., section 1714. (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 252.)

Because all liability under the Government Claims Act is statutory, “the general rule that statutory causes of action must be pleaded with particularity is applicable.” (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.)  Thus, “to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School District  (1986) 177 Cal.App.3d 792, 802.) 

There is no common law tort liability for public entities in California, including negligence. (McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, 975.) A direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained. (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 255-256.) Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability.   (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) 

Here, Plaintiff’s Complaint states that on March 24 or March 20, 2020, Plaintiff was working at the Central Basin Municipal Water District when they notices several Los Angeles County Sheriff’s (“LACS”) vehicles parked near the office. (Comp., ¶¶1, 10.) Plaintiff went to the second floor of the building to inquire about the police presence and saw Sheriff’s deputies meeting with Central Basin employees. (Id., ¶12.) Plaintiff identified herself to the Sheriff’s deputies, asked what was going on, and invited Deputy S Morales to her office so they could talk. (Id., ¶13.) Morales declined the invitation and instructed Plaintiff to walk outside to the sidewalk in front of the building. (Id.) Morales then instructed her to place her hands behind her back, handcuffed her, searched her, and took her cell phone. (Id., ¶14.) Sheriff’s deputies refused to explain why they were there and why Plaintiff was being handcuffed. (Id., ¶15.) Morales then forced Plaintiff into the back seat of a Sheriff’s car, where Plaintiff complained that the handcuffs were too tight and that the car was unreasonably hot. (Id., ¶16.) Morales then instructed Plaintiff to sign a piece of paper allowing the Sheriffs to search her office. (Id., ¶23.) Plaintiff signed the paper because she feared being arrested. (Id.) After searching the office, Morales released Plaintiff. (Id., ¶25.) Plaintiff later filed a claim with County which was denied on December 9, 2020. (Id., ¶36.)

The Complaint alleges causes of action for false imprisonment, assault, battery, negligent use of force, negligent supervision, intentional infliction of emotional distress, and negligent infliction of emotional distress. The Complaint also states “Defendants’ actions as alleged herein constituted an unreasonable search and seizure in violation of [her] rights pursuant to the 4th Amendment of the United States Constitution and Article I, Sections 1, 7, and 13 of the California Constitution.” (Compl., ¶38.) Additionally, “Defendants’ actions…constitute an unreasonable and illegal false imprisonment in violation of California Penal Code Section 236.” (Id.)

Plaintiff’s claims for false imprisonment, assault, battery, negligent use of force, negligent supervision, intentional infliction of emotional distress, and negligent infliction of emotional distress cannot be sustained because County is a public entity and there is no common law tort liability for public entities in California. Plaintiff cites to the United States Constitution, the California Constitution, and criminal statutes in her Complaint. None of these statutes impose liability for common law torts on County. Plaintiff’s Complaint does not allege that County was vicariously liable for the actions of the police officers involved. The Complaint thus fails to identify any statute that would impose liability or a specific duty of care onto County. Accordingly, County’s demurrer is sustained as to all six causes of action.

County also demurs to Plaintiff’s complaint on the grounds that it is uncertain.

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 California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (CCP § 430.10(f).)  

Here, the complaint is not so bad that County cannot reasonably respond because it sufficiently states that Plaintiff is suing for damages arising from her encounter with police officers in March 2020. Although the Court notes there is a discrepancy in the date of the incident, the Complaint still contains sufficient details that would allow County to reasonably respond.

Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)

Leave to amend is granted since it is not legally impossible to fix the defect. A public entity is liable derivatively for an injury proximately cause by an act or omission of an employee of the public entity within the scope of the employee’s employment if the act or omission would have given rise to a cause of action against that employee. (Gov. Code Section 815.2.) A public entity is vicariously liable for an officer’s use of excessive and unreasonable force. (Robinson v. Solano County (9th Cir. 2002) 278 F.3d 1007, 1016; Garcia v. City of Merced (E.D. Cal. 2008) 637 F.Supp.2d 731, 749.