Judge Jill Feeney, Case Number: 23STCV26389, Date: 2024-05-01 Tentative Ruling

This is an action alleging law enforcement officer misconduct. Plaintiff alleges that on a Saturday night around 1 a.m., two deputies, Crosby and Plowman, pulled him over for driving over a crosswalk. The officers asked Plaintiff to get out of the car. As Plaintiff exited the car, Crosby pushed the door closed toward him and stated he was being arrested for resisting an officer. Both officers sexually harassed Plaintiff and wrestled him to the ground. The officers did not allow Plaintiff to move his car. When Plaintiff returned from jail his car had been towed leaving him homeless.

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. 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. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

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).)

“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 defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

Here, the Complaint alleges that Defendant and another officer pulled Plaintiff over for driving through a crosswalk and asked him to exit his vehicle to allow them to search the car. (Compl., p.1-2.) As Plaintiff exited the vehicle, Crosby closed the door toward Plaintiff, leaving him very little room to exit the vehicle. (Id.) Crosby pressed Plaintiff against the vehicle, stated he was arresting Plaintiff for resisting an officer, sexually harassed him, and wrestled him to the ground. (Id.) After Plaintiff returned to the site of his arrest, his car had been impounded. (Id.)

If Defendant is aware of multiple arrests of Plaintiff by Crosby, this is a deficiency that clearly needs to be corrected. However, if there is only one arrest of which Defendant is aware, it would seem that Defendant has the information that he needs to defend the case.

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death

Here, although the facts stated in the Complaint show that Defendant was acting under color of law because Defendant, a police officer, arrested Plaintiff, there are no facts alleged indicating that Defendant’s conduct was motived by Plaintiff’s color, race, or status as an alien. Therefore, the demurrer is sustained on this ground as to Plaintiff’s cause of action under Title 18, United States Code, Section 242.

Leave to amend as to this cause of action will not be granted as Title 18, United States Code, Section 242 is a criminal statute and does give rise to a civil action for damages. ( Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (18 U.S.C. § 242 is a criminal provision that provides “no basis for civil liability.”); Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (affirming dismissal of claims under 18 U.S.C. § 242 because it is a criminal statute that does not give rise to civil liability).

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.

A section 1983 claim requires two allegations: (1) that some person has deprived a plaintiff of a federal right and (2) that person was acting under color of state law. (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 890.)

Local governmental units are persons within the meaning of Section 1983. (County of Los Angeles v. Superior Court (1998) 68 Cal.App.4th 1166, 1171.) A local government may not be liable under Section 1983 for the actions of its employees based only on a respondeat superior theory of liability. Rather, liability attaches if the deprivation of rights that is alleged “’implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,’” or when the injury is in “’execution of a [local] government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.’” (Id., quoting Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 690-691.)

Officers of a state, city or county may sued in their individual capacity under Section 1983. (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 384-385.) Qualified immunity protects such public officers from Section 1983 liability unless the officer has violated a clearly established constitutional right. (Id. at 385.)

Here, Plaintiff must amend the complaint to state whether he is suing Defendant Crosby in his individual capacity, his official capacity or both. If Plaintiff is suing Defendant Crosby in his official capacity, then he must include allegations sufficient to meet the requirements under Monell. The demurrer is sustained as to this ground with leave to amend.

The Fourth Amendment to the United States Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Const. 4th Amend.)

“A person may sue civilly under federal law for a violation of his or her Fourth Amendment rights by an officer acting under color of state law.” (People v. Perry (2019) 36 Cal.App.5th 444, 466.) An officer may use reasonable force to arrest a person when he has reasonable cause to believe the person has committed a crime. (Id. at p. 471.) Any other arrest is unlawful. (Id.)

“Claims that police officers used excessive force in the course of an arrest, investigatory stop or other ‘seizure’ of a free citizen are analyzed under the reasonableness standard of the Fourth Amendment to the United States Constitution; police officers may use force to the extent that it is objectively reasonable under the circumstances.” (Murchison v. County of Tehama (2021) 69 Cal.App.5th 867, 887, citing Graham v. Connor (1989) 490 U.S. 386, 395, 397.)

Here, Plaintiff alleges in his opposition that Defendants violated his 4th Amendment rights. Based on the allegations of the complaint, Plaintiff is alleging that Defendant Crosby used excessive/unreasonable force during his arrest of Plaintiff and that Defendant Crosby illegally arrested Plaintiff as there was no probable cause to arrest him for resisting arrest, both Fourth Amendment violations.