Judge Marcella O. Mclaughlin, Case Number: 37-2023-00049651-CU-CR-CTL, Date: 2024-04-19 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2023-00049651-CU-CR-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 18, 2024

04/19/2024 09:00:00 AM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited Civil Rights Demurrer / Motion to Strike 37-2023-00049651-CU-CR-CTL FOGGY VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 01/12/2024

The demurrer to the complaint is OVERRULED.

A. As an initial matter, the court notes that the City did not file a meet and confer declaration pursuant to Code of Civil Procedure section 430.41. While this is disappointing to the court, section 431.41 does not contain any penalties for failing to meet and confer. To the contrary, a determination by the court that the meet and confer process was insufficient 'shall not' be grounds to overrule or sustain a demurrer.

Code Civ. Proc. § 431.41(a)(4). The court, however, directs counsel for the City to comply with the meet and confer requirements for any future pleading challenges in this matter.

B. The court also notes that plaintiffs' opposition brief consists of 16 pages of text. This exceeds the page limitations set forth in CRC 3.1113(d). Nevertheless, the court, in its discretion, has considered the entire opposition brief. CRC 3.1113(g), 3.1300(d). In the future, counsel for plaintiffs must comply with the page limitations or, if necessary, seek relief to file a longer memorandum 'at least 24 hours before the memorandum is due' pursuant to rule 3.1113(e).

C. Finally, the court declines to consider the declarations of Lisa Dickinson or Marcus Bourassa. '[A] defendant cannot...strengthen the demurrer by asserting evidence which would make the complaint defective.' Hayward v. Henderson (1979) 88 Cal.App.3d 64, 71. This is because 'a demurrer looks only to the face of the pleadings and to matters judicially noticeable and not to the evidence or other extrinsic matter.' Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 239 fn. 2.

D. Turning to the merits, it is unclear whether the demurrer is directed to the entire complaint or to any of the six causes of action alleged therein. See CRC 3.1320(a). The demurrer itself only addresses the negligence claim and plaintiffs' 'request for relief.' See ROA 19 at p. 2. However, the supporting memorandum of points and authorities explicitly challenges all causes of action. See ROA 20. As there was no objection to this defect from plaintiffs, the court will deem the demurrer as applying to all of plaintiffs' claims, notwithstanding the City's failure to comply with CRC 3.1320(a).

The demurrer to the entire complaint based on the failure to comply with the claims presentation requirement is overruled. '[A] plaintiff may allege compliance with the claims presentation requirement in the Government Claims Act by including a general allegation that he or she timely complied with the claims statute.' Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1237. Plaintiffs have done so here. (See Complaint at ¶ 16.) Whether plaintiffs can prove this allegation is a question for another day. See Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 ('A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.').

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3075400 13 CASE NUMBER: CASE TITLE: FOGGY VS CITY OF SAN DIEGO [IMAGED] 37-2023-00049651-CU-CR-CTL The demurrer to count 1 is overruled. Sufficient facts have been pled to state a claim for violation of the Bane Act. See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67. The City's reliance on Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947 is misplaced. Unlike in Shoyoye – a jail overdetention case – plaintiffs allege more than 'mere negligence' on the part of the SDPD. See Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 798-99; see also B.B. v. County of Los Angeles (2018) 25 Cal.App.5th 115, 130, reversed on other grounds in B.B. v. County of Los Angeles (2020) 10 Cal.5th 1 ('Although the Shoyoye court seemed to suggest a categorical rule requiring independent coercion whenever coercion is inherent in the underlying civil rights violation, the court's analysis of the statutory text indicates it meant the rule to apply only where the underlying violation (and the incidental coercion that accompanied it) was the product of unintentional or negligent error.').

The demurrers to counts 2, 3, and 6 are overruled. It is well-settled that 'a court is not bound by the captions or labels of a cause of action in a pleading.' Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281. Rather, '[t]he nature and character of a pleading is to be determined from the facts alleged, not the name given by the pleader to the cause of action.' Id. In this case, the facts alleged are sufficient to state claims for assault, battery by a police officer, and false imprisonment.

The demurrer to count 4 is overruled. 'The elements of a cause of action for intentional infliction of emotional distress are (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the plaintiff's extreme or severe emotional distress.' Ragland v. U.S.

Bank National Assn. (2012) 209 Cal.App.4th 182, 204. Here, although not all of the conduct in alleged paragraph 156 qualifies as 'outrageous,' the court is persuaded that the allegations in subdivisions f, g, and h would cause an average member of the community to exclaim 'Outrageous!' See KOVR-TV, Inc.

v. Superior Court (1995) 31 Cal.App.4th 1023, 1028; see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 ('A demurrer does not lie to a portion of a cause of action.').

The demurrer to count 5 is overruled. '[A] governmental entity can be held vicariously liable when a police officer acting in the course and scope of employment uses excessive force or engages in assaultive conduct.' Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 215. In this case, sufficient facts have been pled showing that SDPD officers used excessive force so as to support a claim for negligence. (See Complaint at ¶¶ 163, 166.) E. Judicial notice is taken as requested. Evid. Code § 452(d). 'However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.' Lockley v. Law Offices of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.

F. The City must file and serve an answer to the complaint by April 29, 2024.

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3075400 13