Judge Mark E. Windham, Case Number: 21STLC06138, Date: 2024-02-13 Tentative Ruling

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Gonzalez v. Los Angeles Police Department, et al.

DEMURRER

(CCP §§ 430.10, et seq.)

Defendant City of Los Angeles’ Demurrer to the Complaint is SUSTAINED WITHOUT EAVE TO AMEND.

On August 20, 2021, Plaintiff Jose Manuel Gonzalez (“Plaintiff”) brought the instant action for personal injury and tort claims against Defendant City of Los Angeles (erroneously sued as “Los Angeles Police Department”) (“Defendant”) for injuries sustained during an incident with officers.

On June 26, 2023, Defendant filed a motion to dismiss the action without prejudice under CRC rule 3.110(b), Government Section 68608(b) and Code of Civil Procedure section 575.2, subdivision (a). The Court denied the motion to dismiss on September 18, 2023, and granted Defendant’s oral request for 30 days’ leave to file a demurrer. On October 16, 2023, Defendant filed the instant Demurrer to Plaintiff’s Complaint.

At the hearing on January 17, 2024, the case was reassigned from Department 25 of the Spring Street Courthouse to Department 26 of the Spring Street Courthouse. No opposition to the Demurrer has been filed.

The demurring party must meet and confer in person or by telephone with the party who filed the pleading to resolve objections raised in the demurrer. (Code Civ. Proc. § 430.41(a).) Here, Defendant did not properly meet and confer with Plaintiff as required under section 430.41. The supporting declaration indicates that defense counsel made several attempts to call Plaintiff on October 5, 2023, to no avail. (Demurrer, Lazarevich Decl. ¶6, Ex. 1.) Plaintiff later responded by email, to which defense counsel scheduled a call for October 13, 2023, at 2:30pm, however, Plaintiff did not answer. (Id. at ¶7, Ex. 1.) It was later explained to defense counsel that Plaintiff’s phone was not operable. (Id. at ¶8.) Communication between the parties solely occurred by email. (Id. at Ex. 1.) This does not satisfy the meet and confer requirements under section 430.41, which does not limit parties’ ability to “meet and confer” to telephone communications; it also allows the parties to meet in person. Here, Defendant had evidence that Plaintiff is of limited means and had issues with communications via telephone. Yet defense counsel did not offer Plaintiff the opportunity to meet in person to confer about resolving the objections raised in the demurrer. Despite this deficiency, the Court cannot sustain or overrule the demurrer under this basis, therefore Court will address the merits of the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

Plaintiff’s complaint appears to allege two causes of action for assault and discrimination. “The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

Here, Plaintiff simply alleges that he was assaulted and discriminated against by police in relation to an alleged report describing an attempted break-in of a car. These are conclusions of law, not facts. Gonzales does not allege facts sufficient to establish each element of a cause of action for assault or discrimination. In addition, Defendant correctly notes that under Government Code section 815, subdivision (a) “[e]xcept as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” The Complaint does not identify any statutory basis for liability against Defendant for assault. Similarly, the cause of discrimination lacks an allegation demonstrating a statutory basis for liability. Based on the foregoing, the demurrer is sustained.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.) Here, Plaintiff has not filed any opposition to the demurrer, nor otherwise demonstrated that amendment to the Complaint is possible to assert any cause of action against Defendant. Leave to amend is denied.

Defendant City of Los Angeles’ Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.