Judge: Maurice A. Leiter, Case: 23STCV13788, Date: 2023-10-12 Tentative Ruling

Case Number: 23STCV13788    Hearing Date: February 16, 2024    Dept: 54

Hearing Date: February 16, 2024

Department 54, Judge Maurice A. Leiter

Demurrer to First Amended Complaint and Motion to Strike

Moving Party: Defendants Franchise Tax Board and Daniel Ortiz

Responding Party: Plaintiff Azariah M. Ellington

T/R:      DEFENDANTS’ DEMURRER IS SUSTAINED WITH LEAVE TO AMEND. THE MOTION TO STRIKE IS MOOT.

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

DEFENDANTS 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 15, 2023, Plaintiff Azariah M. Ellington filed a complaint against Defendants Franchise Tax Board of California and Daniel Ortiz, asserting causes of action for (1) reckless disregard; (2) criminal negligence; (3) elder abuse; (4) tortious interference; (5) abuse of authority; (6) invasion of privacy; (7) fraud; (8) bank fraud; and (9) mail fraud.

On October 12, 2023, the Court sustained Defendants’ demurrer to the complaint. On November 22, 2023, Plaintiff filed a first amended complaint for (1) civil rights violation; (2) negligence; (3) abuse of authority; (4) IIED/elder abuse; (5) invasion of privacy; (6) fraud; and (7) interference with business.

Plaintiff alleges Defendants have improperly levied exempt bank accounts.

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.)

Defendants demur to the first amended complaint on the grounds that it is uncertain and fails to state sufficient facts, Defendants are immune from liability, and Plaintiff failed to comply with the claim presentation requirements of the Gov. Code.

Under Gov. Code § 860.2, public entities and public employees are immune from liability for any injury caused by: (a) “[i]nstituting any judicial or administrative proceeding or action for or incidental to the assessment or collection of a tax”; or (b) “[a]n act or omission in the interpretation or application of any law relating to a tax.” Gov. Code § 815 states public entities are immune from liability for common law torts. Gov. Code § 945.4 requires an individual to file a claim with the defendant public entity before filing suit for damages.

Plaintiff alleges his only income is from social security and, under federal and state law, Defendants cannot levy tax debt from accounts in which SSI funds are deposited. Plaintiff seeks damages against Defendants. Plaintiff does not allege compliance with the claim presentation requirements nor allege statutory authority allowing tort liability against Defendants. As pleaded, the FAC is barred.

Defendants’ demurrer is SUSTAINED with leave to amend. The motion to strike is MOOT.