Judge Lynne M. Hobbs, Case Number: 23STCV05642, Date: 2025-03-19 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV05642, Date: 2025-03-19 Tentative Ruling

Case Number: 23STCV05642 Hearing Date: March 19, 2025 Dept: 61

PHILIP MARKOWITZ, et al. vs CITY OF BURBANK, A PUBLIC ENTITY, et al.

Tentative

Defendants City of Burbank, Courtney Pinsky, Anthony Kardosh, Ariel Torres, and Salvador Robles’ Demurrer to the First Amended Complaint is CONTINUED to April 17, 2025, at 10 am, to be heard pending an order to show cause why a stay should not be entered pending resolution of Plaintiff Markowitz’s criminal case.

Judicial Assistant to calendar all hearings scheduled for that day for the 10:00 am calendar. The Court expects that the case will fully be "at issue" by Plaintiff entering default on nonresponding defendant County of Los Angeles. Parties are to submit declarations at least five days in advance of the hearing to brief the "stay" issue.

Moving party to give notice.

Analysis

I. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”) “In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) “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 Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.) A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendants City of Burbank and Officers Courtney Pinsky, Anthony Kardosh, Ariel Torres, and Salvador Robles (Defendants) demurrer to the First Amended Complaint (FAC) on the following grounds. Defendants argue that awarding Plaintiff relief on the grounds specified in the FAC — namely his allegedly false arrest — would call into question currently pending criminal proceedings against him arising from the very same incident. (Demurrer at pp. 13–14.) Defendants argue that the FAC fails to allege any constitutional violation, as Plaintiff Philip Markowitz’s arrest, and Plaintiff Barsoumian’s detention, were conducted pursuant to an outstanding warrant supplying probable cause for same. (Demurrer at pp. 14–17.)

Defendants argue that the FAC alleges no use of force except that which was reasonable under the circumstances to effectuate the lawful arrest. (Demurrer at pp. 17–18.) Defendants argue that Plaintiffs’ claims under Civil Code § 52.1 and Barsoumian’s claim for sexual assault are barred because Plaintiffs failed to include such allegations in their prior government claim forms. (Demurrer at pp. 18–20.) And Defendants contend the Bane Act claim also fails because Plaintiffs fail to allege the specific intent to violate Plaintiffs’ rights. (Demurrer at pp. 21–22.) Finally, Defendants argue that the common law tort claims alleged against the City of Burbank fail because there is no statutory basis for liability against this public entity. (Demurrer at pp. 22–23.)

Plaintiffs in opposition contend that the bar for prosecuting claims that call criminal charges into doubt applies only after a conviction and judgment has been entered against the plaintiff. (Opposition at pp. 7–8.) Plaintiffs argue that their arrest was without probable cause because the warrant upon which it was based was issued and quashed in November 2005, long before the arrest at issue. (Opposition at pp. 9–11.) Plaintiffs argue that their government claims under the Bane Act and for sexual assault survive because they are based on the same fundamental facts as the claims in their FAC. (Opposition at pp. 11–14.) Plaintiffs argue that they have alleged facts demonstrating that the arresting officers had a specific intent to violate their right to be free from unreasonable search and seizure. (Opposition at pp. 14–15.) And finally, Plaintiffs contend that the City may be vicariously liable for the common law torts committed by its employees under Government Code § 815.2. (Opposition at p. 16.)

This court cannot sustain Defendants’ demurrer on the grounds that this case would interfere with a pending criminal matter, because as Plaintiff argues in opposition, and as Defendants concede in reply, the doctrine that Defendants rely upon requires a conviction and judgment in those criminal proceedings, which has not yet been entered. As stated by the U.S. Supreme Court:

"We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit."

(Heck v. Humphrey (1994) 512 U.S. 477, 486–487.)

The parties agree that a criminal case is currently pending against Markowitz in LASC Case No. GA111752, People v. Philip Markowitz, which concerns the arrest that is the subject of the present dispute. (Defendants’ RJN No. 3; Opposition at p. 5.) However, Defendants contend only that Plaintiff has been held to answer for a misdemeanor gun charge. (Demurrer at p. 12.) No conviction has yet been entered, however, and the case remains pending (Reply at p. 3), meaning that the Heck doctrine presently affords Defendants no basis for demurrer.

Even though the pending criminal proceedings do not warrant this case’s outright dismissal, the parties’ arguments concerning it and the validity of Plaintiffs’ arrest raise issues warranting hesitation in ruling upon Defendants’ demurrer, which concerns questions central to Plaintiff’s criminal prosecution. This court, in ruling upon the sufficiency of Plaintiff’s allegations of wrongful arrest and detention, risks entering rulings that conflict with those of the criminal court, in which Plaintiff’s prosecution began on March 2, 2022 (Opposition at p. 12), a year before the present case was filed on March 14, 2023.

Under the doctrine of “exclusive concurrent jurisdiction,” when two or more courts have subject matter jurisdiction over a dispute, the court that first asserts jurisdiction assumes it to the exclusion of the others. The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy and preventing vexatious litigation and multiplicity of suits. The rule is a judicial rule of priority or preference and is not jurisdictional in the traditional sense of the word, in that it does not divest a court, which otherwise has jurisdiction of an action, of jurisdiction. Because it is a policy rule, application of the rule depends upon the balancing of countervailing policies. (Shaw v. Superior Court of Contra Costa County (2022) 78 Cal.App.5th 245, 255–256, internal quotation marks and citations omitted.)

Although customarily applied to civil cases, the same policies suggest a similar doctrine ought to stay further proceedings on Plaintiff’s claims while Markowitz’s criminal case is pending. To proceed to a ruling on the demurrer would risk conflicting rulings on issues material to an earlier-filed criminal proceeding — namely, the legality of Plaintiff’s arrest. And although Defendants seek relief on the grounds of the pending criminal proceedings, and Plaintiff objects that Defendants’ demurrer “attempts to adjudicate facts which are at issue in the pending criminal case” (Opposition at p. 5), neither party briefs the issue.

The parties previously stipulated to stay these proceedings on just such a basis, and an order was entered on August 3, 2023, staying these proceedings on the same grounds. But the stay was set for an initial duration of 90 days “in order to determine whether the criminal case may be resolved.” (8/3/2023 Stipulation.) At a December 3, 2024, OSC re: why the stay should not be lifted, no party presented a declaration stating why the stay should continue, and the court accordingly lifted the stay. (See 12/3/2024 Order.) The parties in arguing the present demurrer confirm that the criminal case remains ongoing, and raise concerns suggesting that a stay remains appropriate while the criminal claim persists.

Accordingly, the hearing on the present demurrer is CONTINUED, to be heard pending an order to show cause why a stay should not be entered pending resolution of Plaintiff Markowitz’s criminal case.