Judge: Joseph Lipner, Case: 21STCV33540, Date: 2024-02-06 Tentative Ruling

Case Number: 21STCV33540    Hearing Date: February 6, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant City of Los Angeles (the “City”) demurs to the Second Amended Complaint (“SAC”) of Plaintiff Lynn Moses (“Plaintiff”).

The Court SUSTAINS the City’s demurrer WITHOUT LEAVE TO AMEND.  However, the Court specifically requests argument on the fifth cause of action for malicious prosecution.

Background

This action arises out of a small protest that Plaintiff attended outside the house of Marqueece Dawson, a member of the Los Angeles City Council. The following facts are taken from the allegations in Plaintiff’s complaint.

On December 15, 2020, around 8:10 a.m., Plaintiff and several other protestors arrived outside Dawson’s house to picket. Plaintiff and his party brought approximately five yard signs, which were temporarily affixed to the public parkway outside Dawson’s house.

Approximately three to seven minutes after Plaintiff arrived, Dawson allegedly exited his home, without wearing a mask in an aggressive manner. Dawson demanded Plaintiff and his party get off Dawson’s property and remove the yard signs. Dawson then allegedly pulled up some of the signs and held them. A series of verbal exchanges and jockeying for possession of the signs ensued, wherein Dawson allegedly chest-bumped Plaintiff several times and waived his arms over his head and near Plaintiff’s face in a threatening manner. Dawson then allegedly picked up a backpack belonging to Katlego Masego, which also contained money that belonged to Plaintiff. Dawson walked up his driveway with the backpack, but ultimately threw the backpack into the street.

Dawson went back into his house, and Plaintiff heard him make a phone call and tell someone to “take out a restraining order on [Plaintiff].”

Defendants allegedly filed and prosecuted a “Workplace Violence restraining order” against Plaintiff in Case No. 20STRo06980. The action was pursued to termination in Plaintiff’s favor.

Plaintiff filed this action on September 10, 2021. The operative complaint is now the SAC, which raises claims against the City and Dawson for (1) assault; (2) battery; (3) violation of First Amendment rights and State Constitution Article 1, Section 2; (4) violation of 4th amendment rights and State Constitution Article 1, Section 13; and (5) malicious prosecution.

The City demurred to the SAC on March 6, 2023. Plaintiff filed an opposition and the City filed a reply.

Request for Judicial Notice

The Court grants the City’s request for judicial notice.

Legal Standard

As a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Discussion

Assault – First Cause of Action

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

“Except as otherwise provided by statute … [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815.) “Thus, under the Act, all governmental liability is statutory, except as required by the state or federal Constitutions.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 370.)

“A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).)

Plaintiff has not identified a statutory basis on which the City can be tagged with liability. Nor has Plaintiff alleged that Dawson committed the tortious acts within the scope of his employment. Thus, there appears to be no basis to hold the City liable for Dawson’s tort. The Court sustains the demurrer without leave to amend.

Battery – Second Cause of Action

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

“Except as otherwise provided by statute … [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815.) “Thus, under the Act, all governmental liability is statutory, except as required by the state or federal Constitutions.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 370.)

“A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).)

Plaintiff has not identified a statutory basis on which the City can be tagged with liability. Nor has Plaintiff alleged that Dawson committed the tortious acts within the scope of his employment. Thus, there appears to be no basis to hold the City liable for Dawson’s tort. The Court sustains the demurrer without leave to amend.

Free Speech and Assembly – Third Cause of Action

A local governing body may be liable for violation of constitutional rights when “action pursuant to official municipal policy of some nature caused a constitutional tort.”¿(Monell v. Department of Social Services of City of New York¿(1978) 436 U.S. 658, 691.) “To impose liability on a local governmental entity for failing to act to preserve constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and (4) that the policy is the moving force behind the constitutional violation.” (Oviatt By and Through Waugh v. Pearce (9th Cir. 1992) 954 F.2d 1470, 1474 [citation and quotation marks omitted].)

Here, Plaintiff has alleged no facts showing a policy by the City that resulted in the deprivation of his constitutional rights, nor does he identify such a policy in his opposition. Thus, it appears that granting further opportunities to amend the cause of action as to the City would be futile. The Court therefore sustains the demurrer without leave to amend.

Unlawful Seizure – Fourth Cause of Action

A local governing body may be liable for violation of constitutional rights when “action pursuant to official municipal policy of some nature caused a constitutional tort.”¿(Monell v. Department of Social Services of City of New York¿(1978) 436 U.S. 658, 691.) “To impose liability on a local governmental entity for failing to act to preserve constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and (4) that the policy is the moving force behind the constitutional violation.” (Oviatt By and Through Waugh v. Pearce (9th Cir. 1992) 954 F.2d 1470, 1474 [citation and quotation marks omitted].)

Here, Plaintiff has alleged no facts showing a policy by the City that resulted in the deprivation of his constitutional rights, nor does he identify such a policy in his opposition. Thus, it appears that granting further opportunities to amend the cause of action as to the City would be futile. The Court therefore sustains the demurrer without leave to amend.

Malicious Prosecution – Fifth Cause of Action

“A plaintiff must plead and prove three elements to establish the tort of malicious prosecution: a lawsuit (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice.” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 872, quotation marks omitted.)

“A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” (Gov. Code, § 821.6.) “If a public employee is immune from prosecution, section 815.2, subdivision (b), also immunizes the public employer.” (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1422.)

Furthermore, “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code, § 820.2.)

The facts of this case are somewhat unclear as to the basis for the malicious prosecution claim. Plaintiff contends that Defendants prosecuted a “Workplace Violence restraining order” against Plaintiff in Case No. 20STRo06980. (Complaint at pp. 21:16-18; 33:1-4.) It is unclear exactly what role the City played in that action. Further, it is unclear whether Dawson was acting in the scope of his employment when he pursued the restraining order.

The Court requests argument as to (1) what actions the City took in the restraining order action; (2) whether Dawson was acting in the scope of employment when he prosecuted the action.  To the extent that the City actively prosecuted the case, the Court asks the City for specific authority as to why the claim is not viable and why the demurrer should be sustained. 

As it stands, the Court is inclined to sustain the demurrer, without leave to amend, because it is unclear what statutory basis allows the City to be held liable for malicious prosecution. However, the Court requests argument as specified above.