Judge Lee W. Tsao, Case Number: 23NWCV03871, Date: 2024-09-10 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV03871, Date: 2024-09-10 Tentative Ruling

Case Number: 23NWCV03871 Hearing Date: September 10, 2024 Dept: C

Anthony B Lovell vs Lakewood Sheriff's Station

Case No.: 23NWCV03871

Hearing Date: September 10, 2024 @ 9:30 a.m.

Tentative Ruling

Defendant County of Los Angeles’s Demurrer is SUSTAINED with 20 days leave to amend.

Defendant to give notice.

Background

This is a civil rights action. On December 1, 2023, Plaintiff Anthony B. Lovell (“Plaintiff”) filed a Complaint against Defendant County of Los Angeles (erroneously sued as Lakewood Sheriff’s Station) alleging causes of action for: (1) False Arrest; (2) Intentional Infliction of Emotional Distress; and (3) Violation of Bane Act.

Defendant County of Los Angeles (“County”) demurs on the following grounds:

1. Plaintiff Complaint fails to comply with the mandatory statutory time requirements of the California Tort Claims Act.

2. Plaintiff’s Complaint fails to state facts sufficient to constitution a cause of action, pursuant to CCP § 430.10(e).

3. Defendant is immune from liability pursuant to Cal. Gov’t Code §§ 815, 815.2, 820.2, 820.4, and 820.8.

Legal Standard

Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247.) A demurrer tests the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4^th 968, 994.)

Discussion

California Tort Claims Act

“[A]ny suit brought against a public entity on a cause of action for which a claim is required to be presented . . . must be commenced . . . not later than six months after the date such notice [of rejection of a government claim] of is personally delivered or deposited in the mail.” (See Bridgman v. Allen (2013) 219 Cal.App.4th 288, 295 (citing Gov. Code § 945.6, subd. (a)(1).) This requirement is “mandatory and must be strictly complied with.” (Chase v. State of California (1977) 67 Cal.App.3d 808, 812.)

A plaintiff may file a written application to a public entity for leave to present a late claim. (Gov. Code § 911.4, subd. (a).) A plaintiff may petition the court for relief from the Government Code claim requirements if the public entity denies the plaintiff’s application for leave to present a late claim. (Gov. Code § 946.6, subd. (a).) A plaintiff may not file a government claim after filing a lawsuit to prosecute a cause of action based on that government claim. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 247.)

Here, the County argues that Plaintiff has failed to allege that he complied with the mandatory time requirements under the California Tort Claims Act. Plaintiff counters that non-compliance is not a ground for sustaining a general demurrer, and that a defendant may only raise such a defense on a motion for summary judgment and/or trial. Plaintiff is mistaken. “[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement. Otherwise, his complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action.” (State of California v. Superior Court (2004) 32 Cal.4^th 1234, 1243.)

Accordingly, on this basis, the demurrer is SUSTAINED with 20 days leave to amend.

Uncertainty

The County argues that Plaintiff’s Complaint is uncertain. “[A] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.) 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.” (Ibid.)

Here, the Complaint, as filed, is unintelligible. However, the Court notes that the Complaint appears to be missing the second page which may contain a portion of the factual allegations. Without the missing page, the Court cannot determine whether the Complaint is uncertain. Therefore, Defendant’s demurrer is not sustained on this basis. Plaintiff is advised to file and serve a complete copy of any future amended complaints.

Governmental Immunity

The County argues that Plaintiff has failed to identify a statutory scheme under which liability can be imposed upon the County for damages.

A public entity is not liable for an injury, except as otherwise provided by statute. (Gov. Code, § 815, subd. (a).) Civil Code section 1714, which imposes a general duty of care on all persons, is an insufficient statutory basis for imposing direct liability on public agencies. (Eastburn v Regional Fire Protection Auth. (2003) 31 Cal.4th 1175, 1180.) No negligence cause of action may be asserted directly against a public entity, but under Government Code section 815.2, subdivision (a), vicarious liability may be imposed on public entities for the “tortious acts and omissions of their employees.” (See Comment to Gov. Code, § 815.2.) A public employee is liable for any injury caused by act or omission “to the same extent as a private person,” except as provided by statute. (Gov. Code, § 820, subd. (a).) Public employees have an array of immunities, including the immunity for discretionary acts (Gov. Code, § 820.2).

Here, Plaintiff alleges that the County is liable under Cal. Govt. Code §§ 815.2 and 820. (Complaint, Third Cause of Action, p.7:1-3.) Therefore, the demurrer is not sustained on this basis.