Judge Marcella O. Mclaughlin, Case 37-2023-00015013-CU-CR-CTL 2023-10-20 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2023-00015013-CU-CR-CTL, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - October 19, 2023

10/20/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Civil Rights Demurrer / Motion to Strike 37-2023-00015013-CU-CR-CTL CORTEZ VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/14/2023

Tentative Ruling on Demurrer to Complaint Cortez v. County of San Diego, Case No. 2023-15013 Oct. 20, 2023, 1:30 p.m., Dept 72 1. Overview and Procedural Posture.

This is an action arises out of plaintiff's time as a pretrial detainee in the Central Jail in San Diego. He alleges he was the victim of excessive force on March 23 and 24, 2022 'while he was experiencing severe mental health symptoms.' The complaint was filed in April of 2023.

The County and the individual defendants now generally demur to the complaint.* ROA 17, 19-25.

Plaintiff filed opposition. ROA 33-35. Defendants replied. ROA 39. The court has reviewed the papers, and no further submissions are authorized in connection with this demurrer.

The battery and negligence counts have been dismissed as against the County.** ROA 29.

The case is also set for a CMC. ROA 26.

2. Applicable Law.

A. A general demurrer may only be sustained if the complaint fails to state a cause of action under any possible legal theory. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810. Properly pleaded facts must be accepted as true, but not contentions or conclusions of law or fact. Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. The court's function is limited to testing the legal sufficiency of the complaint, which must be construed with a view to substantial justice between the parties. Fremont Indemnity Co. v. Fremont General Crop. (2007) 148 Cal.App.4th 97, 113; Code Civ.

Proc. § 452.

B. The Tom Bane Civil Rights Act, codified at Civil Code section 52.1, authorizes an action at law, a suit in equity, or both, against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an individual's exercise or enjoyment of rights secured by federal or state law. In order to state a claim under the Bane Act, a plaintiff must allege '(1) interference with or attempted interference with a state or federal constitutional or legal right, and (2) the interference or attempted interference was by Calendar No.: Event ID: TENTATIVE RULINGS

3037752 40 CASE NUMBER: CASE TITLE: CORTEZ VS COUNTY OF SAN DIEGO [IMAGED] 37-2023-00015013-CU-CR-CTL threats, intimidation, or coercion.' Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67.

C. The California Tort Claims Act (Gov. Code §§ 810 et seq.) prescribes the manner in which public entities may be sued. Chalmers v. County of Los Angeles (1985) 175 Cal.App.3d 461, 464. As a general rule, a plaintiff must present a public entity with a timely written claim for damages before filing suit against it. Gov. Code, §§ 911.2, 945.4. 'A complaint is subject to dismissal if it alleges a factual basis for recovery which is not 'fairly reflected' in the government claim.' Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1231. However, where the complaint 'merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.' Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447.

3. Judicial Notice.

Defendants seek judicial notice of plaintiff's pre-filing claim. ROA 22. Judicial notice is taken as requested. See Evid. Code §452(c); see also Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376 ('If a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c), that the entity's records do not show compliance.').

4. Discussion and Rulings.

A. The demurrer to the complaint is overruled. Assuming without deciding that the March 23 injury producing conduct is not reflected in plaintiff's pre-filing claim, '[a] demurrer does not lie to a portion of a cause of action.' PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1982. The Bane Act claim is based on events that took place on March 23 and 24.

B. The uncalendared motion to strike portions of the complaint is denied.

The motion is not properly before the court because defendants failed to reserve a hearing date. See SDSC Local Rule 2.1.19(A) ('Failure to reserve a date for hearing will result in the demurrer, motion, ex parte application, or order to show cause hearing not being heard.').

Moreover, the court has discretion to grant or deny a motion to strike and, even where an allegation may be unwarranted, the court is not required to strike the allegation at the pleading stage and may instead simply deny the request on the merits at a later stage of the case or ignore the allegation. See Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227, 242. Here, the court declines to edit or re-write the complaint and will address possible unmeritorious allegations regarding the March 23 events, if necessary, at a later stage of the case. See PH II, 33 Cal.App.4th at 1683 ('[U]se of the motion to strike should be cautious and sparing. We have no intention of creating a procedural 'line item veto' for the civil defendant.').

C. Defendants must file and serve an answer to the complaint by October 30, 2023.

5. CMC.

The parties should attend the hearing prepared to assist the court in setting the case for trial and scheduling other litigation benchmarks.

____________________ *The defendants also filed a motion to strike, but did not calendar it. Also, it is unclear to the court from the moving papers whether defendant Crowley has appeared in the action.

**This document was signed by plaintiff's counsel on behalf of 'Rosa Elena Calva-Garcia,' who is a stranger to this litigation. The same error appears in ROA 28. These stipulations should be fixed Calendar No.: Event ID: TENTATIVE RULINGS

3037752 40 CASE NUMBER: CASE TITLE: CORTEZ VS COUNTY OF SAN DIEGO [IMAGED] 37-2023-00015013-CU-CR-CTL promptly.

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