Judge Kristin S. Escalante , Case 22STCV20787 2023-03-21 Tentative Ruling

Judge: Kristin S. Escalante , Case: 22STCV20787, Date: 2023-03-21 Tentative Ruling

DEPARTMENT 24 - LAW AND MOTION RULINGS

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NATURE OF PROCEEDINGS: Hearing on Demurrer - with Motion to Strike (CCP 430.10) to Plaintiffs’ First Amended Complaint by Defendants County of Los Angeles, Detective Cortez and Sergeant Chavira; DOCUMENTS: Complaint; FAC; Demurrer; Proposed Order; MTS; Opposition to Demurrer; Opposition to MTS; Reply to Demurrer; Reply to MTS;

MOVING PARTY: Deputy Chavira (Defendant); County of Los Angeles (Defendant); Deputy Cortez (#524) (Defendant)

The Court has read the moving papers in the above-captioned motions and announces its tentative rulings in open Court.

The Demurrer to Plaintiffs’ First Amended Complaint; reservation no.: 361749215944 filed by Defendants Deputy Chavira, County of Los Angeles, and Deputy Cortez on 11/21/2022 is SUSTAINED in part and OVERRULED in part.

- The demurrer to the first cause of action is OVERRULED as to Deputy Cortez and SUSTAINED with leave to amend as to Deputy Chavira

- The demurrer to the third cause of action is SUSTAINED with leave to amend as to Deputy Cortez and Deputy Chavira

- The demurrer to the fifth cause of action is OVERRULED as to Deputy Cortez and SUSTAINED with leave to amend as to Deputy Chavira

- The demurrer to the seventh cause of action is SUSTAINED with leave to amend as to Deputy Cortez and Deputy Chavira

The Motion to Strike portions of Plaintiff's First Amended Complaint; reservation no.: 361749215944 filed by Defendants Deputy Chavira, County of Los Angeles, and Deputy Cortez

on 11/21/2022 is DENIED. The court denies the motion to strike paragraphs 72, 86, 97, 135, 148, and the prayer for punitive damages because Plaintiffs have alleged oppression. The court denies the motion to strike paragraphs 108 and 162 as moot because Defendants’ demurrer to the racial discrimination claims were sustained.

Defendants Deputy Chavira (“Chavira”), Deputy Cortez (“Cortez”), and County of Los Angeles (“County”) (collectively “Defendants”) demur to the first (First Amendment retaliation), second (Fourth Amendment unlawful search and seizure), third (Fourteenth Amendment racial discrimination), fourth (Monell liability), fifth (Bane Act retaliation), sixth (Bane Act unlawful search and seizure), and seventh (Bane Act racial discrimination) causes of action in the first amended complaint (“FAC”) filed by Plaintiffs Jimmy Cruz (“Cruz”), and minors A.J.C. (“AJC”), K.C. (“KC”), and O.A.C. (“OAC”) (collectively “Plaintiffs”)

Plaintiffs alleged causes of action one, and three against Cortez and Chavira; cause of action two against Cortez, Chavira, and Sahugun; cause of action four against County; causes of action five and seven against Cortez, Chavira, and County; and cause of action six against Cortez, Chavira, Sahugun, and County.

Defendants demur on the grounds they do not state facts sufficient to constitute a cause of action and the causes of action are uncertain.

The complaint concerns events that transpired in the summer of 2021. At the time, Plaintiffs OAC, KC, and AJC were in first, seventh, and eighth grade respectively. In August 2021, Cruz picked up his children—OAC, KC, and AJC—from school and stopped at their neighborhood store before going their grandmother’s house. The family often made this stop together.

When they got back into the car, Cruz received a call. He pulled over, parked, and took the call, but left the car running to keep the air conditioning on. Afterward Cruz pulled back into traffic and Cruz’s son pointed out a police vehicle with the markings LASD. The LASD officers appeared to be impounding another vehicle. Before August 2021, Cruz had been stopped by LASD in encounters he understood to be based on racial profiling.

Cruz saw the LASD vehicle and continued driving until Cortez waived his arms and ordered Cruz to stop. Cruz complied and Cortez told Cruz to get out of the vehicle. Cruz also noticed that Cortez was not wearing a face mask and was holding his hand over his nametag and body camera. This coupled with the fact that Cruz had been lawfully operating his vehicle and the presence of his children in the car raised Cruz’s concern. As such, Cruz declined to get out of the vehicle because they could talk while he remained in the car. Simultaneously, Chavira approached the passenger side of the vehicle where OAC was sitting. Cruz heard what he understood to be Chavira attempting to open the passenger side of his vehicle, however, the vehicle was locked. Cortez repeatedly requested Cruz exit the vehicle and Cruz continued to decline.

Understanding that the situation may be escalating, Cruz began recording the encounter out of concern for his family’s safety. When Cruz continued to decline exiting, Cortez stated he was detaining Cruz. It was around this time that Cruz observed the double beep noise indicating Cruz and Cortez had activated their body cameras. When asked why he was being detained Cortez told

Cruz he would tell him “over here”—i.e., outside the vehicle. Up until this point, nothing in the encounter indicated Cruz or his children were a threat. Thus, Plaintiffs asserts that Cortez’s demand that Cruz exit the vehicle was motivated by a desire to use violent force upon Cruz or arrest him in the presence of his children.

Cruz continued to refuse to get out of the vehicle. Cortez, in turn called his supervisor. While the parties waited for the supervisor, Cortez told Cruz that when the sergeant arrived Defendants would lock down the street, forcibly remove Cruz from the vehicle, arrest Cruz, and enlist the Los Angeles County Department of Children and Family Services (“DCFS”) to take custody of his minor children. OAC began crying. Cruz calmed the children and directed them to call their mother and explain the detention. He also told the children’s mother to contact the nearest LASD station to have the sergeant come to the scene.

Eventually another deputy, Sahugun, not a sergeant arrived. Sahugun began speaking with Cruz about the area and where Cruz was coming from and going. Cruz responded truthfully and cooperatively. Sahugun noted the area was known for criminal activity, suggesting Cruz was aware this fact. Offended, Cruz responded that he had no personal knowledge of criminal activity in the area. Sahugun further represented that the stop was based on the need to see Cruz’s driver’s license. Cruz contested this, but reluctantly provided his driver’s license to Sahugun. Sahugun returned and advised Cruz he could leave. Cruz asked why he was stopped and Sahugun stated that Cruz’s vehicle matched the description of something else. Cruz believes this vague statement was an attempt to justify the unlawful detention. Cruz left the scene.

Since the incident Cruz and his children have experienced severe mental distress and psychological trauma. His children repeatedly ask whether Cruz will be arrested when he leaves their home.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts read the allegations liberally and in context. (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1622 (Schultz), as modified on denial of reh’g (Sept. 29, 1994).) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against them. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

Demurrers “for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 [internal quotations omitted]; accord Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) “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.” (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [quoting Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616].)

Plaintiffs have alleged a cause of action for first amendment retaliation against Cortez, but not against Chavira.

To state a claim for First Amendment retaliation under Section 1983, a plaintiff must plead “that (1) he or she was engaged in constitutionally protected activity, (2) the defendant’s retaliatory action caused the plaintiff to suffer an injury that would likely deter a person of ordinary firmness from engaging in that protected activity, and (3) the retaliatory action was motivated, at least in part, by the plaintiff's protected activity.” (Tichinin v. City of Morgan Hill (2009) 177 Cal. App. 4th 1049, 1062–63.)

Cruz’s verbal questioning of Cortez is constitutionally protected activity. (City of Houston, Tex. V. Hill (1987) 482 U.S. 451, 461 [“the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”].) Cruz alleged that he verbally refused to comply with Cortez’s request that he exit his vehicle. Cruz repeatedly asked why he was being detained and Cortez told Cruz he would tell him “over here”—i.e. outside the vehicle. Cruz continued to refuse to get out of the vehicle. Cortez, in turn called his supervisor. Thus, the first element is met.

While the parties waited for the supervisor, Cortez told Cruz that when the sergeant arrived Defendants would lock down the street, forcibly remove Cruz from the vehicle, arrest Cruz, and enlist the Los Angeles County Department of Children and Family Services (“DCFS”) to take custody of his minor children. OAC began crying. Cruz calmed the children and directed them to call their mother and explain the detention. Since the incident Cruz and his children have experienced severe mental distress and psychological trauma. The children repeated ask Cruz whether he will be arrested when he leaves their home. This is the alleged injury to the Cruz family which meets the second element.

Finally, Cruz alleged that that Cortez’s “decision to threaten Plaintiff CRUZ with violent force to extract him from the vehicle and place Minor Plaintiffs A.J.C., K.C., and O.A.C. in the custody of DCFS was substantially motivated by Plaintiff CRUZ’s decision to (1) respectfully decline to exit the vehicle given the lack of legal justification to compel him to do , so as well as (2) begin recording the encounter, both of which were intentionally done out of his concern for the safety of himself and his children.” (FAC, ¶51.) This allegation directly links the retaliatory action of detaining and threatening Plaintiffs to the first amendment speech.

Defendants appear argue that another plausible interpretation of the complaint is that Plaintiff was lawfully detained based on a matching description and criminal activity in the area. However, the question is not whether Defendants retaliated against Plaintiffs for exercising his first amendment rights, but whether Plaintiffs alleged first amended retaliation in the FAC; defects must appear on the face of the pleading. (see Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-22.) The parties’ ability to prove their respective claims is of no concern. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 99.) Thus, Defendants alternative interpretation of the FAC is not grounds for sustaining the demurrer.

However, Plaintiffs do not allege that Chavira made any threats against Cruz or retaliated against Plaintiffs for refusing to comply with Cortez’s request. The FAC alleges Chavira went to the passenger side of the vehicle, at some point unsuccessfully tried to open the passenger door and waited there throughout the stop. Chavira did not make any comments during the encounter. Plaintiffs do not allege that Chavira’s standing outside the vehicle constituted a retaliatory action motivated by Cruz’s activity. Thus, Plaintiffs have not stated a claim against Chavira.

The next question is whether qualified immunity would apply to the Cortez’s conduct.

Qualified immunity “means that officials may avoid suit and liability not simply when they have acted lawfully but also when, while they have acted unlawfully in an absolute sense, they have nonetheless acted reasonably, under the circumstances.” (Wood v. Emmerson (2007) 155 Cal. App. 4th 1506, 1515.) “The issue of whether qualified immunity exists is ultimately one of law for the trial court.” (Ibid.) “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818.)

“Determining whether a public official is entitled to qualified immunity “requires a two-part inquiry: (1) Was the law governing the state official’s conduct clearly established? (2) Under that law could a reasonable state official have believed his conduct was lawful?” (Jeffers v. Gomez (9th Cir. 2001) 267 F.3d 895, 910.) For a right to be clearly established for purposes of qualified immunity, “existing precedent must have placed the statutory or constitutional question beyond debate.” (Carroll v. Carman (2014) 574 U.S. 13, 16.) The contours of a right must have been sufficiently clear so that “every reasonable official would have understood that what [they] are doing violates that right.” (Ashcroft v. al-Kidd (2011) 563 U.S. 731, 741 [internal quotations and brackets omitted].)

Defendants argue that the conduct at issue falls within the purview of qualified immunity because it would be the product of a mistaken judgment made in good faith and not a knowing violation of the law. However, the question of qualified immunity is legal in nature and turns on whether the underlying constitutional rights were clearly established rights of which a reasonable person would have known. Here, the right at issue is Cruz’s verbal questioning of Cortez. (City of Houston, Tex. V. Hill (1987) 482 U.S. 451, 461 [“the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”].) That a person may ask question of an officer during a stop is something that has been established since 1987, or approximately 35 years prior to the stop in this case. It would amount to clearly established law.

Thus, Cortez has not established entitlement to qualified immunity based on the allegations.

Accordingly, the court sustains the demur as to Chavira, but overrules the demur as to Cortez as to the first cause of action.

Plaintiffs have alleged a claim for an unlawful search and seizure against Cortez and Chavira.

To state a claim for an unreasonable seizure under the Fourth Amendment, plaintiff must show (1) Defendant seized Plaintiff, (2) Defendant acted intentionally, and (3) the seizure was unreasonable.” (Ninth Circuit Civil Jury Instruction, No. 9.18.)

Plaintiffs alleged that in the middle of the afternoon on a school day, while Cruz was in his vehicle with his three minor children obeying traffic laws, Cortez stopped them all. Cortez then asked Cruz to exit his vehicle. Cruz declined to exit his vehicle, knowing he had not engaged in any traffic violations. Cortez eventually told Cruz he was detaining Cruz and again requested he leave the vehicle. When Cruz continued to decline, Cortez called another officer and made threats to Cruz. At the time that Cortez officially detained Cruz, Chavira was on the passenger side of the vehicle and continued to wait there throughout the stop without comment. Thus, Cortez and Chavira admittedly seized Plaintiffs when Cortez announced he was detaining Plaintiffs. An order to exit the vehicle is permissible if the driver was lawfully detained. (Mimms, supra, 434 U.S. at p. 109.) However, here Plaintiffs allege the detention was not lawful. Sahugun later told Cruz, that the stop was due to a vehicle match after explaining there was criminal activity in the neighborhood. Defendants argue this is evidence the stop was reasonable. Plaintiffs allege the reasons proffered by Sahugun were not the reasons for the stop but a pretext to cover the illegal detention before letting him leave. Further, there was no other reason to stop Plaintiffs—Cruz had been operating the vehicle lawfully. Thus, the FAC alleges an unreasonable seizure.

The next question is whether there was clearly established law on the parameters of a lawful vehicle stop, such that Cortez can claim qualified immunity.

“An automobile stop is [] subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.” (Whren v. United States (1996) 517 U.S. 806, 810.) “[T]he police can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if they lack probable cause under the Fourth Amendment.” (United States v. Sokolow (1989) 490 U.S. 1, 20.) The court defined reasonable suspicion as “some minimal level of objective justification for making a stop—that is, something more than an inchoate and unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause.” (Ibid.) An order to get out of the car “issued after the driver was lawfully detained” is permissible under the fourth amendment. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 109.) Again, the case law is well established on the parameters of a stop. There must be a reasonable suspicion supported by articulable facts. Thus, Cortez has not established entitlement to qualified immunity based on the allegations.

“Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” (Albright v. Oliver (1994) 510 U.S. 266, 271 [omitting internal quotations].) The state and federal Constitutions prohibit the state from denying any person equal protection of the laws. (U.S. Const., 14th Amend., § 1; Cal. Const., art. 1, § 7, subd. (a).) The essence of equal protection is that “all persons similarly should be treated alike.” (City of Cleburne, Tex. v. Cleburne Living Center (1985) 473 U.S. 432, 439.) A plaintiff may bring a claim under Section 1983 based on a violation of the right to equal protection. (Fuller v. City of Oakland (9th Cir.1995) 47 F.3d 1522, 1533–1534.) (using Gonzales v. Cnty. of Riverside, No. E056253, 2014 WL 3962664, at *6 (Cal. Ct. App. Aug. 14, 2014) for the reasoning in this paragraph)

Defendants argue Plaintiffs’ claim is superfluous because it based on the fourth amendment and can be addressed entirely through Plaintiffs’ unlawful seizure claim. However, the two claims

are distinct. The premise of the racial discrimination claim is that the initial unlawful seizure was motivated entirely by racial animus. Thus, it is not superfluous under the allegations of the complaint.

Defendants then argue that Plaintiffs have not alleged facts showing intentional discrimination and directs the court to cases where racial slurs were direct evidence of such animus. In response, Plaintiffs argue that the FAC’s allegations that Defendants were motivated by animus is sufficient. However, Plaintiffs’ single allegation that Cortez was motivated solely by Plaintiffs’ physical appearances without more is insufficient. Plaintiffs provide no case law within this jurisdiction to support the allegations’ sufficiency. The allegation is a conclusion with no supporting facts, such as why Plaintiffs know or came to believe Cortez was motivated by racial animus. Plaintiffs’ allegation that Chavira approved and encouraged Cortez’s actions without more is also insufficient. None of Chavira’s conduct—as alleged—demonstrates a cognizable claim of racial animus.

Assuming arguendo Plaintiffs had alleged facts amounting to a claim for equal protection under section 1983, Defendants would not be able to claim qualified immunity. The supreme court has applied the rule that selective enforcement of laws based on races may not be the sole motivation for a vehicle stop. (Whren v. United States (1996) 517 U.S. 806, 813 [agreeing that the constitution “prohibits selective enforcement of the law based on considerations such as race”].)

The question is whether Plaintiffs have alleged liability against County under Monell v. Department of Social Services of City of New York (1978) 436 U.S. 658 (Monell). They have.

To make a claim under Monell for policy liability, Plaintiffs must show “(1) it is an official policy, (2) it is a longstanding practice or custom that has become a standard operating procedure, (3) the individual tortfeasor is an official whose acts represented official policy, or (4) an official with policy making authority ratified the decision of a subordinate.” (Casey N. v. County of Orange (2022) 86 Cal.App.5th 1158)

County argues the allegations are cursory, but that is incorrect. Plaintiffs have alleged five different County policies related to the incident at hand. Plaintiffs alleged County inadequately trained employees regarding wrongful conduct. The underlying policy custom or practice in effect were allowing, encouraging or refusing to punish officers (i) who engaged in retaliation, (ii) who detained private citizens without reasonable suspicion of criminal wrongdoing, (iii) who make threats of violence against private citizens to obtain compliance, (iv) who threaten to place minor children with DCFS to obtain compliance, and (v) who engage in racial profiling unsupported by articulable findings of reasonable suspicion. Plaintiffs further allege that LASD has a history of accusations of abusing the power to detain citizens and has been sued over it several times. Plaintiffs then allege that Defendants acted within County policy. This is sufficient to satisfy the pleading requirements for Monell liability.

The issue is whether Plaintiffs have adequately alleged claims under Civil Code section 52.1 (“Section 52.1”).

Case law has established that the offending threat need not be independent from the constitutional violation so long as the officer had specific intent to violate the rights of the plaintiff. “By its plain terms, Section 52.1 proscribes any interference with or attempted interference with protected rights carried out by threat, intimidation or coercion. Nothing in the text of the statute requires that the offending threat, intimidation or coercion be independent from the constitutional violation alleged.” (Cornell v. City & Cnty. of San Francisco (2017) 17 Cal. App. 5th 766, 799–800, as modified (Nov. 17, 2017) [internal brackets and quotations omitted].) To establish specific intent, a plaintiff must show that the “right at issue [is] clearly delineated and plainly applicable under the circumstances of the case,” and “defendant commit[ed] the act in question with the particular purpose of depriving the citizen victim of his enjoyment of the interest protected by that right.” (Ibid. at p. 803 [internal punctuation omitted].)

Here, as discussed above, Plaintiffs have successfully alleged a claim for unlawful search and seizure against both Cortez and Chavira. Plaintiff further successfully alleged a claim for retaliation against Cortez. Also included in Plaintiffs allegations are Cortez’s threats of violent removal of Cruz and Chavira’s tacit support of such threats. Indeed, Cruz alleged he was concerned about escalating violence and for that reason began filming the encounter. These allegations are sufficient to allege a violation of Section 52.1 for interference with Plaintiffs Fourth Amendment rights against both deputies, and interference with Plaintiffs’ First Amendment rights against Cortez. However, Plaintiffs did not successfully allege a claim for violation of their fourteenth amendment rights against either deputy. Accordingly, Plaintiffs have not alleged Section 52.1 violation based on the Fourteenth Amendment.

Defendants again assert a primarily factual argument—that the complaint is susceptible to a second interpretation of the events whereby Defendants did not violation Plaintiffs rights. Plaintiffs alleged Cortez’s threatened Cruz with violent force to extract him from the vehicle and threatened to place AJC, KC, and OAC in the custody of DCFS. Defendants argue this is a matter of interpretation and that Cortez was just advising Cruz of outcomes. However, the complaint alleges these statements were threats made for the purpose of obtaining Cruz’s compliance with Cortez’s requests. Defendants alternative interpretation of the FAC is not grounds for sustaining the demurrer.

Accordingly, the court sustains the demurrer as to Chavira for cause of action five, overrules the demur as to Chavira for cause of action five, overrules the demur as to Cortez for causes of action five and six, and sustains the demur as to Cortez and Chavira for cause of action seven,

Cortez, Chavira, and County (collectively “Defendants”) move to strike paragraphs 72, 86, 97,

108, 135, 148, and 162 whereby Plaintiffs allege Defendants’ conduct amounted to willful and conscious disregard for Plaintiffs’ constitutional rights and request punitive damages. They also move to strike paragraph three of the prayer for relief requesting punitive damages.

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228-1229.) The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. (Grieves v. Superior Ct. (1984) 157 Cal. App. 3d 159, 166.)

Punitive damages are available in non-contract actions where a defendant is guilty of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (c)(1).) Oppression is “despicable conduct with a willful and conscious disregard for the rights or safety of others.” (Code Civ. Proc. § 3294, subd. (c)(1).) Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Code Civ. Proc. § 3294, subd. (c)(1).) Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences. (Angie M. v. Superior Ct. (1995) 37 Cal. App. 4th 1217, 1228) Fraud is “an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Code Civ. Proc. § 3294, subd. (c)(1).)

Defendants argue that Plaintiffs have merely alleged conclusions without any underlying supporting allegations for punitive damages and that Plaintiffs have not alleged malice, fraud, or oppression as required. The court disagrees Plaintiffs alleged that Defendants unlawfully detained them in violation of their constitutional rights. Additionally, when Cruz refused to exit his vehicle, recorded the encounter, and asked why they were being detained Defendants threatened him with violent removal from his vehicle, arrest, and the removal of his children from his custody into DCFS custody. Taken together, these allegations are sufficient to establish a claim for punitive damages for oppressive conduct. A jury could conclude that Cortez’s alleged language in front the entire family—threatening Cruz that his children were going to witness him be subjected to unlawful violence before DCFS forcible removed them from his custody—constituted “willful and conscious disregard for the rights or safety of others.” (See Code Civ. Proc. § 3294, subd. (c)(1).) Thus, the court denies the motion to strike paragraphs 72, 86, 97, 135, and 148 pertaining to the claims for first amendment retaliation and unlawful search and seizure.

However, as discussed previously, Plaintiffs have not stated a cause of action for racial discrimination. Accordingly, the court denies the motion to strike paragraphs 108 and 162 as moot.

NATURE OF PROCEEDINGS: Hearing
on Demurrer - with Motion to Strike (CCP 430.10) to Plaintiff's First Amended
Complaint by Defendant Deputy Sahagun DOCUMENTS: Complaint; FAC; Demurrer;
Proposed Order DMR; Motion to Strike; Proposed Order MTS; Opposition to DMR;
Opposition to MTS; Reply to DMR; Reply to MTS;

The Court has read the moving
papers in the above-captioned motions and announces her tentative rulings in
open Court.

The Demurrer to Plaintiffs' First
Amended Complaint; reservation no.: 314941324697 filed by Defendant Deputy
Sahugun on 01/03/2023 is SUSTAINED in part and OVERRULED in part. The demurrer
to the second cause of action is OVERRULED. The demurrer to the sixth cause of
action is SUSTAINED with leave to amend.

The Motion to Strike Portions
of Plaintiff's First Amended Complaint; reservation no.: 314941324697 filed by
Defendant Deputy Sahagun on 01/03/2023 is DENIED.

Defendant Deputy Sahagun
(“Sahagun”) demurs to the second (Fourth Amendment unlawful search and seizure)
and sixth (Bane Act unlawful search and seizure) causes of action in the first
amended complaint (“FAC”) filed by Plaintiffs Jimmy Cruz (“Cruz”), and minors
A.J.C. (“AJC”), K.C. (“KC”), and O.A.C. (“OAC”) (collectively “Plaintiffs”)

Sahagun demurs on the grounds
that the causes of action do not state facts sufficient to constitute a cause
of action and the causes of action are uncertain.

The court incorporates by
reference its prior discussion of the background and demurrer standard from
Defendants Deputy Chavira, Deputy Cortez, and County of Los Angeles demurrer to
the first amended complaint.

Plaintiffs have alleged a claim
for an unlawful search and seizure against Sahagun.

To state a claim for an
unreasonable seizure under the Fourth Amendment, plaintiff must show (1)
Defendant seized Plaintiff, (2) Defendant acted intentionally, and (3) the
seizure was unreasonable.” (Ninth Circuit Civil Jury Instruction, No. 9.18.)

Plaintiffs alleged that in the
middle of the afternoon on a school day, Cortez stopped the family. Cortez then
asked Cruz to exit his vehicle, which Cruz declined because he knew he had not
engaged in any traffic violations. Cortez eventually told Cruz he was detaining
Cruz and again requested he leave the vehicle. When Cruz continued to decline,
Cortez called another officer and allegedly made threats to Cruz. At the time
that Cortez officially detained Cruz, Chavira was on the passenger side of the
vehicle and continued to wait there throughout the stop without comment. Thus,
Cortez and Chavira admittedly seized Plaintiffs when Cortez announced he was
detaining Plaintiffs. An order to exit the vehicle is permissible if the driver
was lawfully detained. (Mimms, supra, 434 U.S. at p. 109.) Here, the initial
stop was allegedly unconstitutional. There was no other reason to stop
Plaintiffs because Cruz had been operating the vehicle lawfully and the
purported reason was pretextual. Sahagun, in turn, prolonged the allegedly
unlawful seizure. He questioned Cruz upon his arrival, asked for Cruz’s
drivers’ license, and provided the allegedly pretextual justification for the
stop. Defendant argues Sahagun’s actions serve as evidence the stop was
reasonable. However, that interpretation is inconsistent with the allegations
which are taken as true on a demurrer. Plaintiffs allege the reasons proffered
by Sahagun were not the reasons for the stop but a pretext to cover the illegal
detention before letting him leave. Thus, the FAC alleges Sahagun unreasonably
seized Plaintiffs by prolonging the unlawful stop.

Defendant’s argument that the
allegations give rise to an alternative interpretation of events—that Sahagun’s
continued detention of Plaintiffs was the product of a lawful investigation—is
a question of fact more suitably addressed in a motion for summary judgment. It
is not appropriate grounds for a demurrer which takes the pleadings as true.
(See Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 99 [the
parties’ ability to prove their respective claims is of no concern.].) The
court does not address Sahagun’s argument regarding supervisor liability as
Plaintiffs do not allege Sahagun was a supervisor. (FAC, ¶¶ 55-56.)

The next question is whether
there was clearly established law on the parameters of a lawful vehicle stop,
such that Sahagun can claim qualified immunity.

“An automobile stop is []
subject to the constitutional imperative that it not be ‘unreasonable’ under
the circumstances.” (Whren v. United States (1996) 517 U.S. 806, 810.) “[T]he
police can stop and briefly detain a person for investigative purposes if they
have a reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if they lack probable cause under the Fourth
Amendment.” (United States v. Sokolow (1989) 490 U.S. 1, 20.) The court defined
reasonable suspicion as “some minimal level of objective justification for
making a stop—that is, something more than an inchoate and unparticularized
suspicion or ‘hunch,’ but less than the level of suspicion required for
probable cause.” (Ibid.) An order to get out of the car “issued after the
driver was lawfully detained” is permissible under the fourth amendment.

(Pennsylvania v. Mimms (1977)
434 U.S. 106, 109.) Again, the case law is well established on the parameters
of a stop. There must be a reasonable suspicion supported by articulable facts.
Thus, Sahagun has not established entitlement to qualified immunity based on
the allegations.

The next issue is whether
Plaintiffs have adequately alleged claims under Civil Code section 52.1
(“Section 52.1”) against Sahagun.

To allege a claim under Section
52.1, Plaintiffs must allege that (1) Defendants interfered with their
constitutional rights by threating violent acts, (2) Plaintiffs reasonably
believed if they exercised their rights, Defendant would commit violence
against them or retaliate against them, (3) Plaintiffs were harmed, and (4)
Defendant’s conduct caused the harm. (CACI 3025.) Case law has established that
the offending threat need not be independent from the constitutional violation
so long as the officer had specific intent to violate the rights of the
plaintiff. “By its plain terms, Section 52.1 proscribes any interference with
or attempted interference with protected rights carried out by threat,
intimidation or coercion. Nothing in the text of the statute requires that the
offending threat, intimidation or coercion be independent from the
constitutional violation alleged.” (Cornell v. City & Cnty. of San
Francisco (2017) 17 Cal. App. 5th 766, 799–800, as modified (Nov. 17, 2017)
[internal brackets and quotations omitted].) To establish specific intent, a
plaintiff must show that the “right at issue [is] clearly delinated and plainly
applicable under the circumstances of the case,” and “defendant commit[ed] the
act in question with the particular purpose of depriving the citizen victim of
his enjoyment of the interest protected by that right.” (Ibid. at p. 803
[internal punctuation omitted].)

Here, Plaintiffs fail to meet
the first two elements. While Plaintiffs have made allegations under section
52.1 for unlawful search and seizure against Sahagun, there are not allegations
in the complaint that Plaintiffs reasonably believed Sahagun would commit
violence or retaliate against them. By the time Sahagun arrived, Cortez had
already allegedly threated Plaintiffs. Sahagun alleged actions, in turn,
include (i) asking Cruz what was happening, (ii) providing Cruz with the
allegedly pretextual reason for the stop, (iii) improperly alluding to violence
in the area and suggesting Cruz was aware of the criminal activity in the area,
and (iv) requesting Cruz’s drivers’ license. After briefly reviewing Cruz’s
license, Sahagun told Plaintiffs they could leave. Plaintiffs do not allege
that Sahagun threatened them, that they were afraid of Sahagun or that they
believed Sahagun’s would commit violence against them for asking questions
about the detention or filming the stop. For this reason, Plaintiffs have not
stated a claim against Sahagun for violations of Section 52.1.

Plaintiffs’ argument that their
allegations that the Section 52.1 claims “constitute a intentional violation of
a protect rights that are inherently intimidating and coercive by virtue of the
violations themselves” is sufficient is incorrect. Considering Plaintiffs’
specific allegations regarding Sahagun’s conduct reveals that his conduction
was not “inherently intimidating and coercive by virtue of the violations
themselves.” Further, on this narrower point of whether the specific intent
allegations are met, the court finds Plaintiffs’ reliance on Cornell inapt. In
Cornell, the court stated that where there is a properly plead and proved
unlawful arrest claim then the threat, intimidation or coercion element of
Section 52.1 is met. An unlawful arrest involves considerably more invasion
into a person’s rights than a detention. Here there was no unlawful arrest.
Thus, the reasoning in Cornell that the allegations of an unlawful seizure
alone are sufficient is inapplicable. Plaintiffs have not sufficiently alleged
elements one and two for a claim under Section 52.1 against Sahagun.

Sahagun move to strike
paragraphs 72, 86, 97, 108, 135, 148, and 162 whereby Plaintiffs allege the
defendants’ conduct amounted to willful and conscious disregard for Plaintiffs’
constitutional rights and request punitive damages. He also moves to strike
paragraph three of the prayer for relief requesting punitive damages. The court
incorporates by reference its prior discussion from Defendants Deputy Chavira,
Deputy Cortez, and County of Los Angeles motion to strike regarding same
paragraphs based on identical grounds