Judge Kerry Bensinger, Case Number: 22STCV15983, Date: 2024-01-16 Tentative Ruling

On May 13, 2022, Plaintiff, Jazzmin C. Myers-Predium, filed a complaint against Defendants, Los Angeles Police Department (“LAPD”) and LAPD Officer Jaime Morales (“Morales”). On November 30, 2022, Plaintiff filed the operative Second Amended Complaint (SAC). Plaintiff is self-represented.

The SAC alleges that Plaintiff posted a poem to her private Facebook page, and the next morning, on December 14, 2021, police officers came to her house to conduct a welfare check. (SAC, p. 10.) The officers took her to be evaluated. Plaintiff sues the LAPD and Officer Morales “for wrongful detainment, invasion of privacy, anxiety, traumatize, discrimination, challenging one’s integrity, harassment, and coercing and questioning of minor under the age of 18 without parental presentation, violation of the 1st and 4th Amendment of the U.S. constitution.” (SAC, p. 11.) The SAC pleads compliance with the Government Tort Claims Act.

On March 17, 2023, Plaintiff filed a Motion for Leave to File Late Claim. On November 1, 2023, the Court denied Plaintiff’s motion and dismissed her state law claims. The Court further stated: “To the extent Plaintiff is seeking to state a claim under 42 U.S.C. section 1983 or federal claims, she is not required to comply with the late claim application requirements and is not barred by the Claims Act from proceeding with her lawsuit, as it does not apply to federal claims. (Williams v. Horvath (1976) 16 Cal.3d 834, 836.)” (11/1/23 Minute Order.)

On November 27, 2023, Defendant Morales filed this Demurrer to the SAC, arguing that the SAC is uncertain.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.¿ (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)¿ “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.¿ We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.¿ [Citation.]”¿ (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed.¿ (Code Civ. Proc., § 452.)¿ In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.¿ (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)¿¿

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).)¿“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.)¿¿¿

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿ 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.)¿¿

Defense counsel has satisfied the meet and confer requirement. (Declaration of Rebekah Young, ¶ 3.)

Morales argues the SAC is uncertain. The Court agrees. Although consisting of more than eleven, single-spaced pages, the SAC does not clearly state a cause of action. The lack of clarity in the allegations does not apprise Morales of the nature of the claims.

Plaintiff is ordered to serve and file her Third Amended Complaint within 30 days of this order.

Defendant is to serve and file her responsive pleading within 30 days of service of the amended pleading.

Plaintiff is encouraged to utilize the lawyer referral services available on the State Bar’s website (https://www.calbar.ca.gov) and the Self-Help page on the Superior Court’s website (https://www.lacourt.org).¿¿

Kerry Bensinger

Judge of the Superior Court

[1] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).)