Judge: Malcolm Mackey, Case: 21STCV25562, Date: 2023-01-04 Tentative Ruling

Case Number: 21STCV25562    Hearing Date: January 4, 2023    Dept: 55

ALLEN  v. THE CITY OF LOS ANGELES                                 21STCV25562

Hearing Date:  1/4/23,  Dept. 55

#8:   DEMURRER TO FIRST AMENDED COMPLAINT.

Notice:  Okay

Opposition

MP:  Defendant VISTA POINT, INC.

RP:  Plaintiff

Summary

On 7/13/21, Plaintiff RANDALL BERNARD ALLEN , a self-represented litigant, filed a Complaint.

On 8/24/21, Plaintiff filed a First Amended Complaint, alleging that Pacific Life Insurance Company, acting as a subsidiary of the City of Los Angeles, failed to establish a special needs trust of structured annuity payments due monthly to Vista Points Inc., thereby creating financial difficulties for Plaintiff and his son.

The causes of action are:

1.      42 USC   § 1983 – EQUAL PROTECTION OF THE LAW, DUE PROCESS.

2.      42 USC   § 1983 - BREACH OF CONTRACT.

On 12/14/21, the Court sustained, without leave to amend, a similar demurrer of co-Defendant PACIFIC LIFE INSURANCE COMPANY, based on the demurrer page numbers, and as unopposed.

MP Positions

Moving party requests an order sustaining the demurrer to each claim of the First Amended Complaint, on grounds including the following:

·         1^st Claim - Deprivation of Civil Rights:  A 42 USC 1983 claim requires allegations of action under color of state law, but the FAC fails to allege any action under color of state law by Vista and it fails to state any specific contractual provision, or how Vista allegedly breached that provision under color of state law.  Julian v. Mission Community Hospital, 11 Cal. App. 5th 360, 398 (2017).

·         2^nd Claim - Breach of Contract:  There is no identification of any contractual provision that is breached or how it was breached.  And, again, Section 1983 law applies.

RP Positions

Opposing party advocates overruling, on bases including the following:

·         The First Amended Complaint has an exhibit that is an agreement with Defendant Vista, having highlight text to indicate breached provisions.

·         Defendant is providing public functions, pursuant to a settlement agreement with the City of Los Angeles, in administering annuity payments based on a structured settlement, and so is to be treated as a state actor.

·         Defendant has wrongfully denied certain uses of Plaintiff’s funds.

·         Both defendants Vista and Pacific are forcing Plaintiff to hold a Special Needs Account, after he no longer qualifies due to termination of Social Security Benefits based on determining there no longer is a qualified disability.

·         Defendants refuse to deposit the funds in Plaintiff’s own bank account.

·         At the demurrer hearing on 12/14/21, the Court erred in sustaining and dismissing, after demurring counsel misrepresented that Plaintiff had not responded, where Plaintiff had responded in meeting and conferring about the demurrer, and Plaintiff has been dealing with stolen and delayed mail, possibly preventing notice of demurrers.

Tentative Ruling

The demurrer hearing is continued, again, to 4/20/23 at 8:30 a.m., in Department 55.

There is a stay pending an appeal pending, as addressed in the 3/10/22, 7/22/22 and 10/25/22 rulings.

Judicial notice of the Court of Appeal’s docket currently shows that oral argument is still pending.