Judge Lynne M. Hobbs, Case Number: 22STCV30916, Date: 2024-01-26 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV30916, Date: 2024-01-26 Tentative Ruling

Case Number: 22STCV30916 Hearing Date: January 26, 2024 Dept: 30

HORACIO GALVAN vs CAESAR VALIENTE, et al.

TENTATIVE

Defendant’s demurrer is OVERRULED. The motion to strike is granted in part and denied in part. It is GRANTED without leave to amend as to the request for attorney fees under the cause of action for negligence per se, and DENIED as to punitive damages.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the

allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

CCP section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (See Code Civ. Proc., § 430.10(f).) “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.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that 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.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.¿(Code Civ. Proc., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.¿(Code Civ. Proc. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿ The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Meet and Confer

Before filing a demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in

argued in the demurrer and motion to strike.¿(Code of Civ. Proc. sections 430.41; 435.5.)¿

The meet and confer requirements have been met.

Discussion

I. Demurrer

Defendant demurs to two causes of action in Plaintiff’s first amended complaint, the first cause of action for negligence per se, and the third cause of action for false arrest and imprisonment.

1. Negligence Per Se

Defendant argues that Plaintiff’s cause of action for negligence per se violates the rule against adding a new cause of action in an amended complaint after the demurrer is sustained.

“Generally, where a court grants leave to amend after sustaining a demurrer, the scope of permissible amendment is limited to the cause(s) of action to which the demurrer has been sustained . . . .” (Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 6:635.5; see Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) However, a court has discretion to allow other amendments. (Edmon & Karnow, ¶¶ 6:635.6, 6:640; see Code Civ. Proc., §§ 473(a)(1), 576.)

The general rule does not apply if the new cause of action directly responds to the court’s reason for sustaining the earlier demurrer. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015; see also Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 654 (overruled by statute on other grounds).)

The Court sustained Defendant’s demurrer to the cause of action for violation of leash law. Defendant had argued in the previous demurrer that there is no private cause of action for violation of leash law. In response, Plaintiff alleged a cause of action for negligence per se. Thus, the new cause of action directly responds to the reason the demurrer was sustained. Defendant makes no arguments as to the merits of the negligence per se cause of action. As such, the demurrer to this cause of action is OVERRULED.

2. False Arrest and Imprisonment

Defendant argues that Plaintiff’s third cause of action for False Arrest and Imprisonment is uncertain, ambiguous, and unintelligible and fails to state a cause of action, because Government Code section 815.2 applies only to public entities, a sheriff’s deputy employed by the County, like Defendant.

The elements for false imprisonment are “(1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 962.)

However, “a demurrer does not lie to a portion of a cause of action.” (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-83; See also Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (stating that the sustaining of a demurrer may only be upheld if the complaint fails to state a cause of action under any possible legal theory).) “A demurrer is not the appropriate vehicle to challenge a portion of a cause of action demanding an improper remedy.” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 384-85; see PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-83 (“A demurrer does not lie to a portion of a cause of action.”).)

Simply because the cause of action cites to Government Code section 815.2 does not make the whole cause of action subject to a demurrer. There are many other allegations in this cause of action which Defendant ignores. Regardless of the merits of these causes of action, Defendant has made no arguments here other than Government Code section 815.2 applies only to public entities. Not only that but the reference to Government Code section 815.2 is for the County, not Defendant.

Thus, the demurrer is OVERRULED.

II. Motion to Strike

Defendant moves to strike the request for attorney fees under the first cause of action for negligence per se, and punitive damages.

1. Attorney Fees

Defendant argues a negligence per se cause of action does not allow for attorney fees and Plaintiff has not provided any legal authority to support its prayer for attorney fees under this cause of action.

California Code of Civil Procedure section 1021 provides for attorney’s fees specifically provided by statute or by agreement between the parties. (Code Civ. Proc. § 1021.)

Plaintiff does not allege any agreement of the parties or cite any statutory basis that would provide for attorney’s fees pursuant to CCP § 1021.

Thus, the motion to strike the prayer for attorney’s fees is GRANTED. Because Plaintiff has not filed an opposition to indicate how this can be cured, the Court does not grant leave to amend.

2. Punitive Damages

Defendant moves to strike the claim for punitive damages in the second, fourth, and sixth causes of action for assault and battery, intentional infliction of emotional distress, and Bane Act, arguing that the allegations do not show Defendant acted with malice or oppression.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.) “Fraud” is defined in section 3294(c)(3) as “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.”

To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)

Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co., 185 Cal. App. 3d 1149, 1155 (1986); see also Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1228 (1995) [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

Here, the FAC alleges that on November 14, 2022 defendant Cesaer Valente the owner of a dog allowed his dog to be off leash and his dog attacked the dog in a lease being walked by

the plaintiff, Horacio Galvin. The dog owned by Cesaer Valente bit the dog being walked by Plaintiff Horacio Galvin. (FAC, ¶ 15).

In order to stop the dog from further injuring Plaintiff’s dog, Plaintiff utilized the broomstick handle to push and prod the attacking dog away from Plaintiff’s dog. Plaintiff who was using a walking stick like a cane, tried to defend itself and his dog from the Defendants’ dog. (FAC ¶ 16.)

Defendant owner of the dog Cesaer Valente a Los Angeles County Sheriff’s Deputy took offense of said actions and attacked Horacio Galvin causing him to sustain serious personal injuries. (FAC, ¶ 17.)

Thereafter defendant Cesaer Valente beat and handcuffed Horacio Galvin acting as an agent, Deputy for the County of Los Angeles. Cesaer Valente then had Plaintiff arrested falsely claiming that Plaintiff was using the broom handle as a weapon against Cesaer Valente. (FAC ¶ 18.)

While arresting Galvan, Defendant Valiente used Los Angeles County Sheriff’s Department-approved handcuffs. In tackling and physically detaining Galvan, Defendant Valiente used LASD training and invoked his peace officer authority during the incident. (FAC, ¶ 19.)

Plaintiff was incarcerated and deprived of necessary medical care. Defendants conduct was a substantial factor in causing Plaintiff’s harm. (FAC, ¶ 20.)

Defendant Valiente knew before attacking Galvan that Valiente’s dog had attacked Galvan and his dog. Defendant Valiente knew before attacking Galvan that Galvan was defending himself and his dog from further aggression from Valiente’s dog. Defendant Valiente knew before attacking Galvan that the physical conflict was subsiding. Defendant Valiente knew before attacking Galvan that Galvan was older than Valiente, more frail than Valiente, and physically smaller than Valiente. Defendant Valiente knew before attacking Galvan that he (Valiente) was a well-trained, and physically fit peace officer. Defendant Valiente knew before attacking Galvan that no physical encounter was needed. (Id., ¶ 30.) Defendant Valiente had been taught at LASD about de-escalation tactics, appropriate use of force, and self-defense. (Id., ¶ 32.) Yet, Defendant Valiente chose to escalate the situation and physically attack Galvan even though Galvan was not a threat to anyone. Despite knowledge and training in defusing conflicts and avoiding escalation of violence, Defendant Valiente chose to tackle and physically manhandle Galvan. (Id., ¶ 33.)

The Court finds the allegations of the FAC are sufficient to state a claim for punitive damages. Plaintiff sufficiently alleges that Defendant’s conduct was malicious, because as a Sheriff’s deputy, Defendant -- who was trained on de-escalation tactics and appropriate use of force, and who was younger, more fit, and bigger than Plaintiff, and knew Plaintiff was simply defending himself-- beat and attacked Plaintiff when he was

trying to defend himself from Defendant’s dog. Then, Plaintiff alleges that Valiente had Plaintiff arrested falsely claiming that Plaintiff was using the broom handle as a weapon against him. As such, given the allegations regarding Defendant being a sheriff’s deputy, his conduct of beating Plaintiff and then falsely claiming Plaintiff was using a weapon, was despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others, with the knowledge of probable harm.

Defendant argues that what is missing are sufficient factually-based allegations to support a claim for punitive damages, rather than what appears to be an instance of Defendant interceding with Plaintiff to protect his dog from being beaten with a broom handle by Plaintiff, which devolved into mutual combat. However, on a motion to strike, the Court notes that the allegations of the complaint are to be taken as true and viewed liberally and in context. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

Thus, the motion to strike is denied in part and granted in part.