Judge John J. Kralik, Case Number: 23BBCV00963, Date: 2023-09-15 Tentative Ruling

Plaintiffs Josiah West (“West”), La’Quecia Weaks (“Weaks”), Hernando Jones (“Jones”), and Tabitha Coleman (“Coleman”) (collectively, “Plaintiffs”) allege that, as minors, they wrongfully had their booking information published to the public through 2 social media sources on the internet by Defendant Burbank Police Department (“Burbank PD”). West is alleged to be 17 years old and Weaks is the mother of West. Jones is alleged to be 17 years old and Coleman is the mother of Jones.

Plaintiffs allege that on September 11, 2022 (the complaint alleges “2022” at paragraphs 18 and 19), West and Jones were arrested by Burbank PD after being stopped in traffic and were detained at the Burbank Police Station. While in custody, Plaintiffs allege that Burbank PD Officers directed West and Jones to undress and put on inmate clothing and that while West was fully dressed and Jones was half dressed, Jones was photographed without a shirt. They allege that West and Jones were minors at that time and the photographs were kept in Burbank PD’s possession in alignment with their recorded booking information.

Plaintiffs allege that on September 12, 2021 (the complaint alleges “2021” at paragraphs 22 and 24), West and Jones’ booking photographs and charges were displayed on Burbank PD’s website. The photographs were then posted on social media via Instagram.

The complaint, filed May 3, 2023, alleges causes of action for: (1) IIED; (2) negligence; (3) res ipsa loquitor; (4) violation of § 5.4 Juvenile Justice Standard; (5) violation of § 15.1 Juvenile Justice Standard; (6) violation of 4.2 Juvenile Justice Standard; (7) negligence per se; and (8) right of privacy.

On June 26, 2023, Defendant City of Burbank (which it claims was erroneously named as Burbank Police Department) (hereinafter, “City”) filed a demurrer and motion to strike portions of the complaint.

City requests judicial notice of: (1) Claims for Damages submitted by Plaintiffs on March 27, 2022; (2) the Notice of Insufficient Claim on behalf of Plaintiffs dated March 30, 2022; (3) the Response to Notice of Insufficient Claim on behalf of Plaintiffs dated April 8, 2022; (4) City’s 45 Day Denial/Six Month’s Notice re Plaintiffs dated July 25, 2022 and July 26, 2022; (5) online docket sheet for this action as of May 3, 2022; and (6) the coversheet of Plaintiffs’ complaint filed May 3, 2022. The request for judicial notice is granted as to Exhibits (1) to (4). The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369 [citing Evid. Code, §453(c) and Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 14].) The request is granted as to Exhibits (5) and (6). (Evid. Code, § 452(d).)

Any suit brought against a public entity on a cause of action for which a claim is required to be presented, the action must be commenced not later than 6 months after the date the notice of rejection is personally delivered or deposited in the mail. (Gov. Code, § 945.6(a)(1).) “Presentation of a claim, when required by law, is a mandatory prerequisite to maintenance of any cause of action against a public entity. [Citation.] In those circumstances in which a claim must be presented, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general demurrer. [Citation.]” (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 31.) “‘Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action.’” (Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 906.)

A review of the complaint shows that Plaintiffs have not alleged their compliance with the Government Claims requirements prior to filing the complaint in this lawsuit against City. This is sufficient grounds to sustain the demurrer to the entirety of the complaint.

In addition, City argues that the complaint fails to allege timely compliance with the Tort Claims Act and that Plaintiffs did not timely file their action in compliance with Government Code, § 945.6. West and Jones were arrested and had their photographs taken by the police department on September 11, 2021 (although the complaint alleges 2022, the timeline of events shows that the correct year would be 2021). (Compl., ¶¶18, 21.) On September 12, 2021, their photographs and charges were displaced on the Burbank PD’s website and thereafter posted on social media. (Id., ¶¶22, 24.) According to the judicially noticeable documents, Plaintiffs submitted a claim for damages on March 28, 2022, City responded that the claim was insufficient on March 30, 2022, Plaintiffs submitted a response to the insufficiency notice on April 8, 2022, and City provided a 45 Day Denial/Six Months Notice to Plaintiffs on July 25 and 26, 2022. (City RJN, Exs. 1-4.) Plaintiffs filed this action on May 3, 2023.

City argues that Plaintiffs had 6 months from the mailing of the rejection of their tort claim to file a lawsuit and they were provided notice of this. Six months from July 26, 2022 would fall on January 26, 2023. However, Plaintiffs did not file this action until May 3, 2023, which is almost 10 months from the denial date, or well over the 6-month deadline. As such, Plaintiffs’ claims were not timely presented and do not comply with the Government Claims presentation requirements.

Thus, the demurrer to the complaint is sustained. Ordinarily, the Court would grant leave to amend as this is Plaintiffs’ first attempt at the pleading. However, Plaintiffs have not opposed the demurrer such that they have not stated how they can amend the pleading, and it appears unlikely that Plaintiffs will be able to amend the complaint. Further, as discussed below, there are other defects in the complaint that would effectively result in the demurrer being sustained without leave to amend.

City argues that the common law causes of action fail as alleged against City, that the claims of Weaks and Coleman fail because there is no derivative right of action for right or privacy, and the Juvenile Justice Standards are not codified and fail to establish a duty over City.

First, City argues that the complaint fails against City because there can be no common law liability against a public entity. Under the statutory scheme in California, all government tort liability must be based on statute. (Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 653.) Government Code section 815, enacted in 1963, abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. (Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405, 409.) Accordingly, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable. (Id.) In short, sovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute. (Id.) Further, in order to state a cause of action for government tort liability, every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. (Zuniga v. Housing Authority (1995) 41 Cal. App. 4th 82, 96.) Since the duty of a public entity can only be created by statute, the statute claimed to establish the duty must be identified. (Id.)

Thus, the common law causes of action for: (1) IIED; (2) negligence; (3) res ipsa loquitor; (7) negligence per se; and (8) right of privacy are barred. The demurrer to the 1^st, 2^nd, 3^rd, 7^th, and 8^th causes of action are sustained without leave to amend.

Second, Weaks and Coleman have not alleged facts regarding their right of privacy being violated. “[T]he right of privacy cannot be asserted by anyone other than him whose privacy is invaded.” (Kelly v. Johnson Pub. Co. (1958) 160 Cal.App.2d 718, 722.) In the 8^th cause of action, the only confidential information that was disseminated referred to West and Jones and a photograph of Jones half-dressed. (Compl., ¶¶97-100.) However, there are no allegations with respect to the right of privacy being violated for Weaks and Coleman. As such, this cause of action fails to allege sufficient facts against Weaks and Coleman.

Third, City argues that the Juvenile Justice Standards do not establish a mandatory duty over Defendants. City argues that the Juvenile Justice Standards were promulgated by the American Bar Association and have not been codified.[1] As they are not codified, the ABA’s Juvenile Justice Standards are cannot impose a statutory duty against City, such that the 4^th to 6^th causes of action also fail. Plaintiffs have not alleged any statutory provisions that would impose a duty on City. Accordingly, the demurrer to the 4^th to 6^th causes of action is sustained without leave to amend.

In light of the ruling on the demurrer, the motion to strike is taken off-calendar as moot.

The demurrer of Defendant City of Burbank’s to the complaint is sustained without leave to amend. The case is dismissed with prejudice as to City of Burbank.

In light of the ruling on the demurrer, the motion to strike is taken off-calendar as moot.

Defendant Burbank Police Department shall remain as an active defendant as this defendant was separately named in the complaint by Plaintiffs. If Defendant City of Burbank believes that it is one and same entity as Defendant Burbank Police Department, defense counsel may discuss this at the hearing. If the Burbank Police Department is not a separate entity, then it is likely it will also be dismissed as the result of the City’s demurrer.

[1] City cites to Hueter v. Kruse (D. Hawaii 2021) 576 F.Supp.3d 743, which is a federal case from the U.S. District Court of Hawaii. Thus, it is non-binding, persuasive authority. The District Court stated: “The American Bar Association, the entity that publishes the model codes, is not a government entity; it is a ‘voluntary association’ of lawyers and law students.” (Id. at 775.) The District Court stated that the Model Rules were not laws and that they did not provide plaintiffs any cause of action for violation of the Model Rules of Judicial Conduct or Professional Conduct. (Id.) The Court quoted the ABA preamble and scope, which states that a violation of the rules should not itself give rise to a cause of action or create any presumption of a breach of a legal duty. (Id.)

Superior Court of California

County of Los Angeles

Department B