Judge Latrice A. G. Byrdsong, Case Number: 18STLC12326, Date: 2023-10-31 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 18STLC12326, Date: 2023-10-31 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Tentative Ruling: Defendant Los Angeles County Sheriff Robert Luna’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED without Leave to Amend.

On September 28, 2018, Plaintiff Lamaas El (“Plaintiff”) filed a complaint against Defendant Custody Assistant Soto alleging a single cause of action for general negligence. The complaint arises from Plaintiff’s detention at Los Angeles County Men’s Central Jail. The complaint alleges that on April 16, 2017, while detained at Men’s Central Jail, Plaintiff was injured when a cell door closed on him.

On February 22, 2021, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants Custody Assistant Soto and Sheriff Jim McDonell, individually and officially. The FAC asserted a single cause of action for negligence.

On October 1, 2021, the Court held an OSC re: Failure to File Proof of Service. At the OSC, the Court indicated that it had lost jurisdiction over Defendant Custody Assistant Soto pursuant to Code of Civil Procedure section 583.210 as Plaintiff had not served Defendant Custody Assistant Soto with the FAC. (October 1, 2021 Minute Order.) The Court ordered Defendant Custody Assistant Soto dismissed without prejudice from the FAC. (Id.)

On March 9, 2023, Plaintiff filed a motion for leave to file a Second Amended Complaint. On May 18, 2023, after hearing, the Court granted Plaintiff’s motion for leave to file a Second Amended Complaint.

On May 18, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendant Los Angeles County Sheriff Robert Luna (“Defendant”), in his official capacity, alleging a single cause of action for negligence.

On August 25, 2023, Defendant filed and served a demurrer to the SAC. Defendant demurs to the SAC on the grounds that the SAC does not state facts sufficient to establish any of the causes of action against Defendant. On September 28, 2023, Plaintiff filed an opposition to Defendant’s demurrer. On October 4, 2023, Defendant filed a reply brief.

Defendant contends that the SAC fails to state facts sufficient to constitute a cause of action against him because he was not connected to the jail in 2017 as he was the Chief of the Long Beach Police Department. Defendant asserts that there are no allegations to support vicarious liability.[1] Defendant also asserts that Plaintiff did not comply with the Government Claims Act and thus the negligence cause of action is barred. Defendant requests that the demurrer be sustained without leave to amend.

In Opposition, Plaintiff claims that Defendant assumed the responsibilities of the former Sheriff Jim McDonell, who was the Sheriff during the time of the incident. The opposition does not cite any legal authority.

On Reply, Defendant argues the Opposition admits that the person responsible for the alleged incident was former Sheriff Jim McDonnell. Defendant also contends that (1) the SAC does not plead sufficient facts to establish any of the causes of action against Defendant, and (2) Plaintiff concedes that the Government Claims Act bars Plaintiff’s negligence cause of action.

Prior to filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. § 430.41.)

On August 22, 2023, Defendant’s Counsel and Plaintiff discussed the demurrer, Defendant’s request for judicial notice, and the grounds for the demurrer. (Brenner Decl., ¶ 5.) The parties were unable to come to an agreement and Defendant moved forward with the instant demurrer.

Judicial notice shall be taken of “[f]acts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.” (Evid. Code § 451(f).) To the extent that a matter is not embraced in Evid. Code § 451, judicial notice may be taken of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” (Evid. Code § 452(d).) A court must take judicial notice of any matter set forth in Evid. Code § 452 if a party requests it and “(a) [g]ives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) [f]urnishes the court with sufficient information to enable it to take judicial notice of the matter.”

The Court GRANTS Defendant’s Request for Judicial Notice as to Exhibits B, C, D, E, F, G, and H attached thereto.

A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. 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. In assessing a demurrer, the court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law.” Blank v. Kirwan (1985) 39 Cal.3d 311, 318. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda, supra, 147 Cal.App.4th at 747. A complaint will be upheld against a demurrer if it pleads facts sufficient to place the defendant on notice of the issues sufficient to enable the defendant to prepare a defense. Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-50. “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. A “[p]laintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Ibid.

“To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff’s damages or injuries.” Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662. “A vicariously liable defendant and a negligent defendant for whom the vicariously liable defendant bears liability, are responsible for the same damages.” Schreiber v. Lee (2020) 47 Cal.App.5th 745, 761.

Here, the Court finds that Plaintiff has failed to allege the elements of duty or breach to support a negligence cause of action. The SAC is set forth on a form PLD-PI-001. The Court has reviewed the handwritten allegations of the SAC and the Court finds that Plaintiff has failed to allege that Defendant owed a legal duty to Plaintiff or breached a duty to Plaintiff. (See Attachment to SAC at p.1.) Moreover, Plaintiff’s opposition concedes that Defendant was not the Sheriff at the time of Plaintiff’s injuries. Opposition at 1:25-28.

Therefore, the Court finds that Plaintiff has not stated a valid cause of action for negligence against Defendant.

Defendant contends that Plaintiff failed to comply with the Government Claims Act. Plaintiff’s opposition to the demurrer failed to address such argument and the Court finds that Plaintiff has conceded to such argument under Moulton Niguel Water Dist. v. Colombo, supra, 111 Cal.App.4th 1210, 1215. Although Plaintiff has conceded to Defendant’s argument on this point, the Court will still assess the merits of such argument.

“The Government Claims Act established a standardized procedure for bringing personal injury claims against local government entities.” Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1230. The claim must identify “[t]he name or names of the public employee or employees causing the injury, damage, or loss, if known.” Ibid. “[B]efore suing a public entity, the plaintiff must present a timely written claim for damages to the public entity.” Rubenstein v. Doe No.1 (2017) 3 Cal.5th 903, 906. “Compliance with the claim presentation requirement is a condition precedent to suing the public entity.” Ibid. “The claim must be presented not later than six months after the accrual of the cause of action.” Ibid. “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.” Ibid. “A claim relating to a cause of action for death or injury to a person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action.” Gov. Code § 911.2(a).

Here, Plaintiff’s negligence cause of action against Defendant is brought against Defendant in his official capacity. The SAC alleges that Defendant is a public entity. SAC, ¶ 5(a)(4). The SAC alleges that Plaintiff was injured on April 16, 2017. Despite the SAC alleging that Plaintiff has complied with applicable claims statutes, Defendant’s request for judicial notice contradicts such allegation. Plaintiff did not file his claim for damages with the County of Los Angeles until August 20, 2018, which is more than six months after the alleged injury. Defendant’s RJN at Exhibit F. Moreover, Plaintiff’s claim does not identify Defendant as the person responsible for his purported injuries. Id. The Court therefore finds that Plaintiff did not comply with the Government Claims Act pursuant to Rubenstein v. Doe No.1, supra, 3 Cal.5th 903, 906 and Gov. Code § 911.2(a).

The Court SUSTAINS the demurrer of Defendant to the SAC without leave to amend. Plaintiff has failed to meet his burden in showing a reasonable possibility of amendment. The opposition fails to state how the SAC can be amended to state a valid cause of action. Although Plaintiff is representing himself in pro per, a pro per litigant is held to the same standard as an attorney. Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.

[1] The moving papers cite to no legal authority to support this argument. Demurrer at 5:18-26. “Contentions are waived when a party fails to support them with reasoned argument and citations to authority.” Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215. The moving papers do not identify the elements of a cause of action for negligence or vicarious liability. The reply brief asserts that Plaintiff has not alleged a guaranty action. Reply at 2:3-8. However, Plaintiff’s SAC alleges a sole cause of action for negligence and does not assert a cause of action for breach of guaranty. The Court therefore does not see the relevance of such argument raised in the reply brief. The Court, however, will still assess whether Plaintiff has stated a valid cause of action for negligence.