Judge: Maurice A. Leiter, Case: 21STCV44756, Date: 2022-10-27 Tentative Ruling

Case Number: 21STCV44756    Hearing Date: October 27, 2022    Dept: 54

Hearing Date: October 27, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to First Amended Complaint & Motion to Strike

Moving Party: Defendant County of Los Angeles

Responding Party: Plaintiff Jane Doe

T/R:     THE DEMURRER TO THE FIFTH CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

THE DEMURRER TO THE SIXTH CAUSE OF ACTION IS SUSTAINED WITH LEAVE TO AMEND.

THE DEMURRER TO THE REMAINING CAUSES OF ACTION IS OVERRULED.

THE MOTION TO STRIKE IS GRANTED.

PLAINTIFF TO FILE AND SERVE A SECOND AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANT TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On June 6, 2022, Plaintiff Jane Doe filed the operative first amended complaint against Defendant County of Los Angeles, asserting claims for injunctive relief and possession of personal property. Plaintiff alleges Defendant wrongfully confiscated Plaintiff’s phone data.

REQUEST FOR JUDICIAL NOTICE

            Defendant’s requests for judicial notice are GRANTED as to the existence of the documents, but not as to the truth of the matters asserted in them.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. Statute of Limitations, Government Claims Act, and Collateral Estoppel

Defendant demurs to the entire FAC on the grounds that it is barred by the statute of limitations, by doctrine of collateral estoppel, and by Plaintiff’s failure to comply with the Government Claims Act. The Court is unpersuaded by these arguments. Defendant points to the one-year limitation period in CCP § 340(d), but this applies only to “the seizure of any property for a statutory forfeiture.” This is not a civil forfeiture case. Defendant asserts Plaintiff’s claims should have been brought in an earlier federal case between the parties, but Defendant concedes that the federal court declined to exercise jurisdiction over state law claims. Lastly, Plaintiff is not seeking damages; the Government Claims Act does not apply.

B. First Cause of Action for Invasion of Privacy

Defendant demurs to the first cause of action for invasion of privacy on the ground that Plaintiff voluntarily provided her phone to the police. Plaintiff alleges she did not give permission for Defendant to search the entire phone and copy the data.

The demurrer to the first cause of action is OVERRULED.

C. Fourth Cause of Action

            Defendant asserts Plaintiff’s fourth cause of action for violation of Civil Procedure section 511.010 does not apply because Plaintiff’s phone has been returned. Plaintiff seeks the return of the data, not the phone itself.

            The demurrer to the fifth fourth cause of action is OVERRULED.

D. Fifth Cause of Action

            Defendant asserts Plaintiff’s fifth cause of action under CCP § 627 fails because it addresses jury instructions and does not provide a private right of action. The Court agrees. The demurrer to the fifth cause of action is SUSTAINED without leave to amend.

E. Sixth Cause of Action

            Defendant demurs to the sixth cause of action for conversion on the ground that Plaintiff has failed to allege a statutory basis for liability against a government entity. The Court agrees. The demurrer to the sixth cause of action is SUSTAINED with leave to amend.

F. Motion to Strike

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court." (CCP § 436.) The Court's authority to strike improper pleadings includes the power to strike those pleadings that are "not filed in conformity with its prior ruling." (Janis v. California State Lottery Com (1998) 68 Cal.App.4th 824, 829.)

Defendant moves to strike Plaintiff’s prayer for attorney’s fees on the grounds that Plaintiff cannot recover attorney fees when unrepresented and Plaintiff has failed to allege a basis for attorney’s fees. The Court agrees Plaintiff cannot recover attorney’s fees without attorney representation. The motion to strike is GRANTED.