Superior Court of California

County of Los Angeles

DAIMON MCGUIRE;

Plaintiff,

vs.

LOS ANGELES POLICE DEPARTMENT;

Defendant.

Case No.: 23STCV16461

DEPARTMENT 45

[TENTATIVE] ORDER

Action Filed: 07/14/23

Trial Date: None Set

Hearing date: September 10, 2024

Moving Party: Los Angeles Police Department

Responding Party: None

Defendant Los Angeles Police Department’s Demurrer to Complaint

The court has considered the moving papers. No opposition was filed.

The court SUSTAINS Defendant Los Angeles Police Department’s demurrer to the Complaint, WITHOUT LEAVE TO AMEND.

Background

Plaintiff Daimon McGuire (Plaintiff) filed this action on July 14, 2023, against Defendant Los Angeles Police Department (Defendant) and arresting officers in booking number 6624683. The complaint alleges that Plaintiff can no longer drive safely in his neighborhood, because he fears officers in the 77^th department will harass him. He alleges he is a victim of discrimination. He alleges the officers took his phone. He alleges officers arrested him for the second time for no reason and that they have a personal vendetta against him.

On November 9, 2023, Defendant filed a demurrer to the Complaint.

Legal Standard

When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

“[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, quoting Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Discussion

Meet and Confer

CCP § 430.41(a) states, in relevant part: “Before filing a demurrer . . . the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”

CCP § 430.41(a)(2) states, in relevant part: “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.”

CCP § 430.41(a)(3) provides: “The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”

Defendant’s counsel submits a declaration stating that on November 9, 2023, she called Plaintiff in order to meet and confer and determine if an agreement could be reached to resolve the issues raised in Defendants’ Demurrer. Plaintiff did not answer so counsel left a detailed message on his voicemail. She also emailed Plaintiff at the same date at approximately 11:30 a.m. with the same goal. (Young Decl., ¶ 4.)

As part of the meet and confer process, defense counsel identified the specific allegations that she believes are subject to demurrer and identified with legal support the basis of Defendants’ arguments. She relayed this information in her voicemail as well as her email to Plaintiff. However, defense counsel was unable to contact Plaintiff directly in order to reach an agreement resolving the issues raised in Defendants’ Demurrer. (Id., ¶ 5.)

The court finds Defendant’s counsel’s declaration is sufficient to satisfy the meet-and-confer requirements of CCP § 430.41(a)(3)(B). The court therefore proceeds to rule on the merits of the demurrer.

Demurrer

Defendant demurs to the complaint on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP §§ 430.10(e)(f).)

CRC, Rule 2.112 provides that: “Each separately stated cause of action, count, or defense must specifically state: [¶] (1) Its number (e.g., "first cause of action"); [¶] (2) Its nature (e.g., "for fraud"); [¶] (3) The party asserting it if more than one party is represented on the pleading (e.g., "by plaintiff Jones"); and [¶] (4) The party or parties to whom it is directed (e.g., "against defendant Smith").” “As the leading practical treatise advises, failure to comply with [CRC 2.112] presumably renders a complaint subject to a motion to strike (Code of Civ. Proc., § 436), or a special demurrer for uncertainty.” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1014.)

Here, it is unclear what causes of action are being asserted against Defendant as the complaint fails to comply with CRC, Rule 2.112. There are no causes of action listed against Defendant, but only incoherent allegations. Those recitals, references to, or allegations of material facts which are left to surmise are subject to special demurrer for uncertainty. (Bernstein v. Piller (1950) 98 Cal.App.2d 441, 443-444.) Thus, the complaint is subject to demurrer for uncertainty.

In addition, the complaint fails to state a cause of action against Defendant because it does not identify any statutory basis to assert a cause of action against a public entity such as Defendant.

Under the Government Claims Act, “[a] public entity is not liable for an injury . . .” [e]xcept as otherwise provided by statute . . ..”¿ (Gov. Code, section 815;¿State ex rel. Department of California Highway Patrol v. Superior Court¿(2015) 60 Cal.4th¿1002, 1009.) A plaintiff claiming direct tort liability against a public entity must identify a specific statute declaring the entity to be liable, or at least creating some specific duty of care by the agency in favor of the injured party, and not on the general tort provisions of Code Civ. Proc., section 1714. (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 252.)

Because all liability under the Government Claims Act is statutory, “the general rule that statutory causes of action must be pleaded with particularity is applicable.”¿(Susman¿v. City of Los Angeles¿(1969) 269 Cal.App.2d 803, 809.)¿Thus, “to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.”¿(Searcy v. Hemet Unified School District¿(1986) 177 Cal.App.3d 792, 802.)

As noted above, there is no statutory basis identified in the complaint. As such, the complaint is subject to demurrer on this ground as well.

Moreover, Gov. Code §¿821.6 provides, “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” The court in Blackburn v. County of Los Angeles (1974) 42 Cal.App.3d 175, 178 held a criminal investigation fell within the protection of Section 821.6: “'When the duty to investigate crime and to institute criminal proceedings is lodged with any public officer, it is for the best interests of the community as a whole that [the officer] be protected from harassment in the performance of that duty.” It appears this section applies in this case to the extent that Plaintiff is criticizing the investigation and subsequent prosecution of his arrest. (See also Johnson v. City of Pacifica (1970) 4 Cal.App.3d 82, 85-86.)

Lastly, although Plaintiff has named the Los Angeles Police Department (LAPD) as a defendant in this action, the LAPD cannot be sued in state court because it does not exist separate and apart from the City of Los Angeles, and thus, the LAPD does not have its own legal identity. (See Alcala v. City of Corcoran (2007) 147 Cal.App.4th 666, 669-71.) Defendant avers that a lawsuit against the LAPD is tantamount to a lawsuit against the City of Los Angeles. Plaintiff does not dispute this assertion or otherwise provide any explanation for why he can sue LAPD separately from the City. Thus, LAPD is not a properly named defendant in this matter.

Accordingly, based on the foregoing independent reasons, Defendant’s demurrer is SUSTAINED.

Because there is no argument by Plaintiff showing that these defects can be cured, there is no reasonable probability of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 347.) The court therefore will not allow leave to amend.

Defendant’s demurrer is SUSTAINED without leave to amend.

It is so ordered.

Dated: September 10, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court