Judge: John C. Gastelum, Case: 20-01158499, Date: 2022-08-23 Tentative Ruling
Hulsey v. City of Westminster
(1) Demurrer to Amended Complaint (2) Demurrer to Amended Complaint
Tentative Ruling: Defendant City of Westminster’s Special Demurrer and Demurrer to Second Amended Complaint are sustained without leave to amend.
Despite this being Plaintiff’s SAC, the causes of action remain incredibly confusing. In the beginning of the SAC, in a “table of contents” sort of fashion, Plaintiff lists the unnamed causes of action as roman numerals, and then cites, on the right-hand side of the page, the page numbers where those unnamed causes of action can be located. However, in the body of the SAC, these “causes of action” are not named, but rather, Plaintiff states the “nature” of the claim and combines several causes of action together.
Furthermore, the Court takes Judicial Notice of Defendant’s Ex. 1 which is this Court’s March 8, 2022 minute order which specifically advised Plaintiff: “Plaintiff will be allowed to file and serve a Second Amended Complaint compliant with this Court’s 12-7-2021 order relating to the 1st COA (only).” The 2nd-10th causes of action are outside the scope of amendment and thus violate this Court’s 3-8-2022 order.
As to the 1st Cause of Action, Plaintiff pleads the following:
I. 1. Cause of Action: Plaintiff has brought up, to the Defendant since June 2, 2020, the ill effects of the AC Unit. The AC Unit, that was installed without a permit, not to city AC Unit city codes, and the disturbance and health risks it is causing, to Plaintiff. Exhibit WW. After a 1st, full summer, 2021, of sleep disturbance and domestic terroristic attacks, from the AC Unit, to purposely us the AC Unit to disturb Plaintiff's sleep, Plaintiff's health failed, from exhaustion from lack of sleep and rest. Exhibit P pg. 6, line 26. By September, 2021, Plaintiff was very ill, weak and by October 2021 Plaintiff's health is life-threateningly frail, per doctor. Plaintiff, present day, March 22, remains under a doctor's care because her health remains so frail. Exhibit WW, CC, A, F, G, H, I, K, UU. This AC Unit must be moved or it will kill Plaintiff from lack of sleep and rest.
2. Nature: 11 th Amendment; Amdt 14; 42 U.S.C. $1983. 1. Denied due process and denied equal protection under the constitution; assaulted verbally and emotionally; conspiracy of the defendant's part; intentional emotional duress; negligence, assaulted, malice.
3. Party Asserting: Plaintiff, Rickie Hulsey
4. The Party to whom: Jason Watts, Vickie Morgan Justin Nguyen, Mr. Cervantes. The City Code Enforcement Dept., Melissa Ballard for allowing this harm.
(Emphasis added.)
However, Plaintiff’s claim is barred by various immunities, i.e., Government Code §§ 815.2(b), 818.2, 818.4, 821 and 821.2. These statutes bar the Plaintiff’s lawsuit as a matter of law. Specifically, Government Code section 818.2 provides that “[a] public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” (Emphasis added.) Further, Government Code section 821 provides that “[a] public employee is not liable for an injury caused by his adoption of or failure to adopt an enactment or by his failure to enforce an enactment.” An enactment is “a constitutional provision, statute, charter provision, ordinance or regulation.” (Gov. Code, §810.6.) Government Code section 815.2(b) provides for derivative immunity to the City when its public employee is immune, absent limited statutory exceptions. Sections 818.2 and 821 provide immunity to a public entity and employee for an injury caused by failing to enforce any law relating to a discretionary activity. (Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577, 588.)
Here, as the gravamen of the Complaint appears to be the City allowing the neighbor’s unpermitted AC unit, the action is barred because the government defendant is immune for failing to enforce any lack of permit laws.
To the extent Plaintiff cites to the 11th Amendment, “The amendment does not, itself, apply to actions brought in the state courts” (Pierce v. San Mateo County Sheriff's Dept. (2014) 232 Cal.App.4th 995, 1013–1014); and is thus inapplicable.
As to the 14th Amendment,
Under the Equal Protection Clause, a state
may not “deny to any person within its jurisdiction the equal protection of
the laws.” (U.S. Const., 14th Amend., § 1.) The clause “is essentially a
direction that all persons similarly situated should be treated alike.” (Cleburne
v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439, 105 S.Ct.
3249, 87 L.Ed.2d 313.) Generally speaking, laws that distinguish among
different categories of persons, unless based on suspect classifications
such as race or gender, are presumed to be valid and will be sustained as
long as they are “rationally related to a legitimate state interest.” (Id. at
p. 440, 105 S.Ct. 3249.)
(State Route 4 Bypass Authority v. Superior Court (2007) 153 Cal.App.4th 1546, 1563–1564.)
Plaintiff alleges that by the city, by not making the AC Unit adhere to city code, like ALL other AC Units have to adhere to, denied Plaintiff equal protection from the noise of the AC. However, Plaintiff does not allege she herself was treated differently in, say, placing an unpermitted AC unit in her home.
As such, it does not appear that she was treated differently under the law.
Finally, as to USC §1983, that code section provides:
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. For the purposes of this section, any Act of Congress applicable
exclusively to the District of Columbia shall be considered to be a statute
of the District of Columbia.
Here, however given there does not appear to be any substantive federal right violation, it does not appear section 1983 is applicable.
Defendant to give notice and prepare judgment.