Judge Kerry Bensinger, Case Number: 21STCV25760, Date: 2023-11-29 Tentative Ruling

This is a civil rights action involving a claim for excessive force and infringements of federal rights. In response to the murder of George Floyd, protestors gathered near the intersection of Beverly Blvd. and The Grove Drive/Stanley Drive (the “Stanley Protest”), among other locations. On May 30, 2020, Plaintiff, Jonathan Rivera, participated in the Stanley Protest. Los Angeles Police Department (“LAPD”) and Los Angeles County Sheriff’s Department (“LACSD”) deployed law enforcement to provide crowd control at the protest. Under the direction of the City of Los Angeles (“City”) and County of Los Angeles (“COLA”), respectively, the LAPD and LACSD attempted to disperse the protestors by firing rubber bullets. At approximately 6:30 p.m., Plaintiff’s hand was struck by a rubber bullet shot by an unknown badged officer. About forty minutes later, Plaintiff left the protest to get treatment for his hand. During these events, Mayor Eric Garcetti issued an order setting curfew for Los Angeles. The curfew took effect at 8:00 p.m.

On July 13, 2021, Plaintiff filed a Complaint against the City, LAPD, COLA, and LACSD, alleging the following causes of action:

On July 11, 2023, the City filed this motion for summary judgment, or in the alternative, summary adjudication.

When reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿ (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿ A motion for summary judgment must be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿ (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)¿ A defendant seeking summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿ (Code Civ. Proc., § 437c, subd. (p)(2).)¿ A moving defendant need not conclusively negate an element of plaintiff’s cause of action.¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891 (Gaggero).)¿ The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, supra, 25 Cal.4th at p. 855.)¿

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)¿The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿ A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4^th at p. 849.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)¿

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿ While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿ [Citation.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860, internal citation omitted.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]” ¿(Id. at p. 840; see also Weiss v. People ex rel.¿Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿¿

1. Defendant City of Los Angeles’s, March 10, 2021, Inter-Departmental Correspondence and Attached Independent Examination of the Los Angeles Police Department 2020 Protest Response (the “Chaleff Report”);

4. The Google Map Screenshot Showing Distance Between the Claimed and Actual Incident Location;

5. The May 30, 2020, Variety article, titled “Los Angeles Sets Downtown Curfew as George Floyd Protests Continue” (the “Variety Article”).

The City raises one objection – to the Chaleff Report. Because the court does not rely upon the Chaleff Report, the court need not rule upon the objection. (Code Civ. Proc. 437c, subd. (q).)

1. Plaintiff’s medical records from Martin Luther King Jr. Community Hospital, attached as Exhibit G to the City’s Compendium of Evidence.

2. Order Setting Curfew During Existence of a Local Emergency (Revised May 30, 2020 6:30 p.m.) signed by Mayor Eric Garcetti on May 30, 2020 (the “Curfew Order”), attached as Exhibit K to the City’s Compendium of Evidence.

3. May 31, 2020 Los Angeles Times Article entitled “L.A. reels from looting and arrests not seen in decades” written by Ruben Vives and Dakota Smith, attached as Exhibit L to the City’s Compendium of Evidence.

4. June 7, 2020 Los Angeles Times Article entitled, “From Compton to Hollywood Boulevard, protests keep growing around L.A.” written by Arit John, Richard Winton, Kevin Rector, and Laura Newberry, attached as Exhibit M to the City’s Compendium of Evidence.

Objection No. 1 is OVERRULED. Plaintiff objects to the medical records on several grounds yet also refers to them in their opposition papers. (See Singer Decl., ¶ 7.) See also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5^th 931.

Objection No. 2 is OVERRULED. Plaintiff objects to the Curfew Order based on lack of authentication, lack of foundation/no personal knowledge, improper foundation, best (secondary) evidence rule, hearsay, and contradicts prior sworn testimony. The court takes judicial notice of the Curfew Order pursuant to Evidence Code section 452 (b), (c).

The court declines to rule on Objection Nos. 3 and 4 as they are not relevant to the disposition of this motion. (Code Civ. Proc. 437c, subd. (q).)

Issue 1: Plaintiff did not comply with the requirements of the Government Claims Act (Government Code § 810, et seq.). Therefore, Plaintiff’s state law claims for Violations of the Ralph Civil Rights Act (Civil Code § 51.7), Violations of the Bane Civil Rights Act (Civil Code § 52.1), Violations of the Unruh Act (Civil Code § 51, et seq.), Assault and Battery, Negligence, and Intentional Infliction of Emotional Distress (Plaintiff’s first, second, third, sixth, seventh, and eighth causes of action) should be dismissed.

Issue 2: Plaintiff cannot show that he was deprived of a federal right (Plaintiff’s fourth and fifth causes of action) because the curfew order about which Plaintiff complains was a reasonable time, place, and manner restriction.

Issue 3: Plaintiff cannot show that he was deprived of a federal right (Plaintiff’s fourth and fifth causes of action) because Plaintiff was not impacted by the curfew order about which he complains.

Issue 4: Plaintiff’s Fifth and Fourteenth Amendment rights (Plaintiff’s fifth cause of action) were not violated by any alleged unlawful detention because Plaintiff was not arrested or detained.[2]

Defendant argues summary judgment is appropriate because Plaintiff failed to comply with the Government Claims Act. Under the Government Claims Act, a party must present a timely claim for money or damages to a local public entity before suing the local public entity for money or damages. (Gov. Code, §§ 905, 945.4; State v. Superior Court (2004) 32 Cal.4th 1234, 1239.) This provides the public entity with an opportunity to investigate the claim and determine whether it will pay on the claim. (See Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474, 480.) Such a claim may be presented by delivering or mailing it to the clerk, secretary, or auditor of the public entity, or by mailing it to the governing body at its principal office. (Gov. Code, § 915, subd. (a).) A claim is also deemed to be in compliance if it is actually received by the clerk, secretary, auditor, or board of the local public entity. (Gov. Code, §¿915, subd. (e)(1).)

“Where there has been an attempt to comply [with the claims statute] but the compliance is defective, the test of substantial compliance controls. Under this test, the court must ask whether sufficient information is disclosed on the face of the filed claim ‘to reasonably enable the public entity to make an adequate investigation of the merits of the claim and settle it without the expense of a lawsuit.’” (Wood v. Riverside Gen. Hosp. (1994) 25 Cal.App.4th 1113, 1118.) In this test, the Court first determines whether (1) there is "some compliance" with statutory requirements, and then (2) whether that compliance is "substantial". (See Ibid.) “The doctrine of substantial compliance requires no more than that the governmental entity be apprised of the claim, have an opportunity to investigate and settle it and incur no prejudice as a result of plaintiff's failure to strictly comply with the claims act. (Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal. App. 3d 70, 75.) Further, the causes of the action in the complaint must be "fairly reflected" in the substantially complying government claim. (Fall River Joint Unified Sch. Dist. v. Superior Court (1988) 206 Cal. App. 3d 431, 434.)

The City attacks Plaintiff’s state law claims (First, Second, Third, Sixth, Seventh, and Eighth Causes of Action) for failure to substantially comply with the Government Claims Act. The City points out that Plaintiff’s Claim for Damages does not identify the correct date or location of the protest where his hand injury occurred. The Claim for Damages states the alleged events took place on May 29, 2020 at 6:30 p.m., at or near the corner of Beverly Blvd. and N. Fairfax Ave., Los Angeles, California. (Claim for Damages, p. 2.) The parties agree the incident actually occurred on May 30, 2020 at 6:30 p.m. at or near the corner of Beverly Blvd. and The Grove Drive/Stanley Ave. Based on the foregoing, the City argues the misstated information fails to establish substantial compliance because the City was prevented from properly investigating and evaluating its potential liability at the time that Plaintiff submitted his Claim for Damages.

The court disagrees. Plaintiff’s allegations of the City’s conduct as stated in the Claim for Damages and the Complaint are unchanged. Plaintiff attended a protest. The City dispatched LAPD officers to the protest. An unknown badged officer used rubber bullets to disperse the protestors. A rubber bullet injured Plaintiff’s hand. Plaintiff substantially complied with the claims act. The City does not proffer any evidence to show, for instance, that LAPD officers were not sent to the Stanley Protest. The City shows it incurred minimal prejudice, if any, from Plaintiff’s failure to strictly comply with the claims act. (Elias, supra, 68 Cal. App. 3d at p. 75.)

The City cites Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222 in support of its argument. The case does not help the City. In Hernandez, the plaintiff sued Stockton for a dangerous condition on a public sidewalk. Hernandez identified the dangerous condition as an uplifted sidewalk. But liability was premised on a different dangerous condition – a hole created by an empty tree well. Finding a fatal variance, the Hernandez Court wrote, “An ‘uplifted sidewalk’ is not the factual equivalent of a hole created by an empty tree well that is clearly in an area intended for a tree rather than presented as part of the ‘sidewalk surface,’ and does not remotely resemble what a reasonable person might consider to constitute an ‘uplifted sidewalk.’” (Id. at p. 1234.) The factual divergence between cause of the injury identified in the claim (an uplift) and the suit (a tree well) resulted in a complete “shift in allegations as to the dangerous condition.” The court of appeal reasoned that, prior to rejecting Hernandez’s claim, the City of Stockton was unaware of the actual cause of Hernandez’s fall.

Unlike Hernandez, and as discussed above, Plaintiff identified the cause of his injury: a rubber bullet fired by an unknown badged officer. This allegation has not changed. The City is aware of the actual cause of Plaintiff’s injury. Hernandez does not direct a different result. Here, Plaintiff demonstrates substantial compliance.

The City does not identify any additional grounds for summary adjudication of the First, Second, Third, Sixth, Seventh, and Eighth Causes of Action. Defendant has not its initial burden. Accordingly, the motion as to those causes of action is DENIED.

C. Issues 2 and 3: The Curfew Order Was Not Unconstitutional Nor Did It Impact Plaintiff’s Federal Rights

Plaintiff’s Fourth and Fifth Causes of Action are based on Mayor Garcetti’s Curfew Order, issued on May 20, 2020. Plaintiff alleges the Curfew Order violated his rights under First, Fifth, and Fourteenth Amendment, which gives rise causes of action pursuant to 42 U.S.C. section 1983.

42 U.S.C. section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. The two essential elements of a 42 U.S.C. section 1983 claim are (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1402 [cleaned up].)

Under Monell, supra, local governments “can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, . . . local governments . . . may be sued for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels.” (Monell, 436 U.S. at pp. 690-91.)

The City makes two arguments regarding the Curfew Order: (1) the Curfew Order was a reasonable time, place, and manner restriction, and (2) Plaintiff was not factually affected by the Curfew Order. The court agrees on both counts.

“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” (Clark v. Cmty. for Creative Non-Violence (1984) 468 U.S. 288, 293.) “The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” (Ward v. Rock Against Racism (1989) 491 U.S. 781, 791)

Here, the Curfew Order imposed a reasonable time, place, and manner restriction. It states:

WHEREAS, on May 30, 2020, I declared a Local Emergency within the City of Los Angeles resulting from the civil unrest following the death of George Floyd in Minneapolis, Minnesota; WHEREAS, preceding the declaration of this Local Emergency, while the majority of protesters acted lawfully, there has been a significant amount of criminal behavior, including violence against first responders and peaceful protestors, vandalism of public and private property, looting of businesses, and failure to follow the lawful dispersal orders of the Los Angeles Police Department; NOW THEREFORE, by virtue of the authority vested in me as Mayor of the City of Los Angeles under the City of Los Angeles Charter and provisions of Los Angeles Administrative Code, Chapter 3, Section 8.29 to promulgate, issue and enforce rules, regulations, directives and orders, I hereby declare the following Order necessary for the protection of life and property in the areas of the City specified below: 1. No person, except as set forth below, shall be upon any public street, avenue, boulevard, place, alley, park or other public place or unimproved private realty within the City of Los Angeles boundaries - between 8:00 p.m. and 5:30 a.m. of the following day. 2. This Order shall not apply to peace officers, fire fighters, Emergency Operations Organization (EOO) personnel, the National Guard, any other responding military personnel deployed to the area, individuals traveling to and from work, individuals seeking or providing emergency medical care, or any persons experiencing homelessness. Any violation of this Order shall be subject to enforcement and penalty as provided under Los Angeles Administrative Code, Chapter 3, Section 8.78. This Order shall remain in effect until such time as the Declaration of Local Emergency is terminated, or sooner at the direction of the Mayor.

The Curfew Order does not reference the content of the regulated speech. Moreover, it’s narrowly tailored to serve the governmental interest of protecting life and property arising from the “significant amount of criminal behavior, including violence against first responders and peaceful protestors, vandalism of public and private property, looting of businesses, and failure to follow the lawful dispersal orders of the Los Angeles Police Department.” (Id.) The curfew applied to all citizens except those whose services were urgently needed such as peace officers, fire fighters, Emergency Operations Organization (EOO) personnel, the National Guard, any other responding military personnel deployed to the area, and individuals traveling to and from work, individuals seeking or providing emergency medical care, or any persons experiencing homelessness. The Curfew Order is narrowly tailored to a significant governmental interest. It passes constitutional muster.

The City cites In re New York City Policing During Summer 2020 Demonstrations (S.D.N.Y. 2021), 548 F.Supp.3d 383 (In re New York) to further illustrate the constitutionality of the Curfew Order. In re New York is persuasive. In that case, Mayor Bill de Blasio imposed a curfew within New York City between the hours of 11:00 p.m. on June 1 and 5:00 a.m. on June 2. The curfew order contained language strikingly similar to the Curfew Order at issue here. The court in In re New York found the curfew to be content neutral and narrowly tailored to a significant governmental interest. The court reaches the same conclusion with respect to the Curfew Order at issue here.

Plaintiff argues the Curfew Order was not narrowly tailored because “it applied indiscriminately across the entire city and did not account for the varying circumstances in different areas.” (Opposition, p. 10:20-22.) Plaintiff’s argument fails. As the City correctly points out, the inquiry is whether a regulation or restriction on speech is narrowly tailored to serve a significant government interest, not if it is narrowly tailored in its geographic application.[3] Plaintiff does not show the Curfew Order was illegal.

The City next argues that the Curfew Order could not have impacted Plaintiff because he left the protest before the curfew took effect. In support, the City points to the undisputed fact that Plaintiff was struck by a rubber bullet at 6:30 p.m. (Complaint, ¶ 26; Claim for Damages, p. 1.) Plaintiff testified he left the protest 40 to 45 minutes after his hand was struck. (Rivera Depo., Vol. I, p. 117:21-24.) At that point, Plaintiff decided to seek treatment for his hand. (Rivera Depo. Vol. I, pp. 119:21-120:3.) The curfew took effect at 8:00 p.m. (Curfew Order; RJN 1.) At no point was Plaintiff detained or arrested during his participation at the protest. (Rivera Depo., Vol I., pp. 141:22-142:16.) Plaintiff decided to leave the protest to tend to his injuries and not because of the Curfew Order. The City meets its initial burden.

The burden shifts. Plaintiff fails to rebut the shifted burden. Plaintiff simply argues that the Curfew Order “could have had a significant chilling effect on Plaintiff’s willingness to exercise his First Amendment rights out of fear of reprisal or arrest, a factor that merits consideration.” (Opposition, p. 12:25-26, emphasis added.) Plaintiff’s conjecture is not sufficient to resist summary adjudication. The evidence presented shows Plaintiff’s departure from the protest—the exercise of his First Amendment right—preceded the enforcement of the curfew. Plaintiff left the protest to seek treatment for his injured hand. Plaintiff does not offer any evidence that he was detained or arrested. Indeed, Plaintiff testified he did not have any direct interactions with any officers. (Rivera Depo., p. 141:24.) Summary adjudication of the Fourth and Fifth Causes of Action is warranted.

The motion for summary adjudication of the First, Second, Third, Sixth, Seventh and Eighth Causes of Action is DENIED.

The motion for summary adjudication of the Fourth and Fifth Causes of Action is GRANTED.

[1] In his opposition, Plaintiff requests a continuance of this motion if the court is inclined to grant the motion in whole or in part. For the reasons stated herein, the court is inclined to grant the motion for summary adjudication as to Plaintiff’s claims under Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 (Monell) (Fourth and Fifth Causes of Action). The court now considers Plaintiff’s request for a continuance.

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ. Proc., § 437c, subd. (h).) Here, Plaintiff bases the request upon the need to conduct the deposition of the City’s person(s) most qualified. Plaintiff’s counsel states, “These depositions and the ability to conduct further discovery are paramount to Plaintiff’s ability to fully respond and substantively oppose Defendant’s MSJ.” (Singer Decl., ¶ 12.) However, the declaration fails to identify any “facts essential to justify opposition to a motion for summary judgment or summary adjudication.” There is no indication what information Plaintiff intends to elicit at the depositions. The declaration is deficient.

Plaintiff cites Frazee v. Seely (2002) 95 Cal.App.4th 627, 633-34 for the proposition that a continuance of a hearing on a motion for summary judgment is mandatory when the party seeking the continuance has observed “technical compliance with the procedures of Code of Civil Procedure section 437c ....” However, consistent with Frazee, a continuance is not mandatory here because, as stated above, Plaintiff’s counsel’s declaration is deficient. The request for a continuance is DENIED.

[2] The parties do not brief their arguments by issue. Issue 4 is not addressed by the parties. The issue is either abandoned or subsumed within the discussion of issues 2 and 3. As such, the court does not address issue 4.

[3] Arguably, Plaintiff’s consideration of the “varying circumstances in different areas” in the application of the Curfew Order would tend to show that the curfew was not content neutral. If, for instance, the Curfew Order applied only to the areas where the protestors had been gathering, then the Curfew Order would have targeted the protestors and by extension, their exercise of speech and expression.