Judge: Michael E. Whitaker, Case: 25SMCV00454, Date: 2025-05-08 Tentative Ruling

Case Number: 25SMCV00454    Hearing Date: May 8, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from an incident in which Plaintiffs allege they were stopped, detained, threatened, and subjected to a search by Defendant. 

On January 29, 2025, Plaintiffs Roberto Dager (“Roberto”) and Wilmer Dager (“Wilmer”) (together, “Plaintiffs”)  brought suit against Defendant City of Santa Monica (“Defendant” or “City”) alleging six causes of action for (1) intentional infliction of emotional distress; (2) false imprisonment; (3) assault; (4) violation of CA Civil Code section 51.7; (5) violation of Civil Code section 52.1; and (6) punitive damages.

Defendant now demurs to the entire Complaint as to Wilmer as being time barred by Government Code section 945.6 and to the first, second, third, fourth, and fifth causes of action brought by both Plaintiffs, for failure to state a cause of action and uncertainty, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively.  Defendant also moves to strike Plaintiffs’ request for punitive damages.

Both the demurrer and motion to strike are unopposed.

REQUEST FOR JUDICIAL NOTICE

            Defendant requests judicial notice of the following:

1. Plaintiff, Wilmer Dager’s government claim form submitted bearing a stamp dated June 26, 2024. (See Declaration of Michael Mack, Ex. 1)

2. The rejection notice identifying a claim rejection date for the claim of Wilmer Dager by Defendant, City of Santa Monica of July 22, 2024. (See Declaration of Michael Mack, Ex. 2)

3. Plaintiff, Roberto Dager’s government claim form submitted bearing a stamp dated June 26, 2024. (See Declaration of Michael Mack, Ex. 3)

4. The filing date of Plaintiffs’ complaint in this action of January 29, 2025

            Regarding the first three exhibits, Courts may take judicial notice of the governmental entity’s records regarding a plaintiff’s compliance with the claims presentation requirement, pursuant to Evidence Code section 452, subdivision (c).  (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376.)

            Regarding the fourth request, judicial notice may be taken of records of any court in this state.  (Evid. Code, § 452, subd. (d)(1).)  Because the date Plaintiffs’ complaint was filed in this action is part of the Court’s record for this case, the Court may take judicial notice of it.  (Ibid.)   

            Therefore, the Court grants Defendant’s request for judicial notice of Exhibits 1, 2, 3, and 4.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Although Defendant purports to bring the demurrer based on uncertainty, the body of the memorandum of points and authorities does not raise any arguments about the complaint being uncertain.  As such, Defendant does not demonstrate that any portions of the Complaint are so bad that it cannot reasonably determine what issues must be admitted or denied or what claims are directed against it.  The Court thus declines to sustain Defendant’s demurrer based on uncertainty.    

B.    FAILURE TO STATE A CAUSE OF ACTION

                                                         i.          Wilmer’s Claims

Government Code section 911.2 requires:

(a) A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.

(b) For purposes of determining whether a claim was commenced within the period provided by law, the date the claim was presented to the Department of General Services is one of the following:

(1) The date the claim is submitted with a twenty-five dollar ($25) filing fee.

(2) If a fee waiver is granted, the date the claim was submitted with the affidavit requesting the fee waiver.

(3) If a fee waiver is denied, the date the claim was submitted with the affidavit requesting the fee waiver, provided the filing fee is paid to the department within 10 calendar days of the mailing of the notice of the denial of the fee waiver.

Government Code section 912.4 provides that the government is required to act on the claim within 45 days of the claim being presented (unless this period is extended by agreement of the parties), and if the government fails to act within that time, the claim is deemed rejected. 

Here, Wilmer submitted his claim to the City on June 26, 2024 (RJN Ex. 1) and the City timely mailed its rejection notice to Wilmer on July 22, 2024.  (RJN Ex. 2.)

Pursuant to Government Code section 945.6, subd. (a)(1), a plaintiff’s suit must be brought within six months after the written notice is deposited in the mail.  Six months from July 22, 2024 is January 22, 2025.  However, Plaintiffs did not file the Complaint until January 29, 2025.  Therefore, Wilmer’s claims are time barred.

                                                       ii.          First Cause of Action for Intentional Infliction of Emotional Distress, Second Cause of Action for False Imprisonment, and Third Cause of Action for Assault

The City next demurs to the first three causes of action on the grounds that there is no statute authorizing Plaintiffs to bring common law claims against the City.

Government Code section 815 provides that “[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” except as provided by statute.  (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)  “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

The Complaint does not cite to any such authorizing statutes.  Therefore, the Court grants City’s demurrer to the first, second, and third causes of action for common law intentional infliction of emotional distress, false imprisonment, and assault.

                                                     iii.          Fourth Cause of Action – Violation of the Ralph Civil Rights Act of 1976

To allege a violation of Civil Code section 51.7, a plaintiff must allege that he was subject to violence or intimidation by threat of violence because of their political affiliation or their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.  (Civ. Code., § 51.7; § 51.)  General allegations are insufficient to state a statutory cause of action for government tort liability.  (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5 (hereafter Mittenhuber).)

Here, the Complaint alleges that on January 19, 2024 at Arizona and 15^th Street in Santa Monica, “That Defendants in violation California Civil Code Section 51.7 committed a violent act against Plaintiffs. A substantial motivating reason for Defendants conduct was Defendant's perception of Plaintiffs race, color, and physical characteristics. Plaintiffs were harmed and suffered substantial injury as a direct result of Defendant's conduct.”  (Complaint at p. 7.)

But the Complaint does not specify specifically who from the City, or even what type of City employee allegedly committed the acts.  Further, as currently crafted, Plaintiffs seek to hold the City directly liable, but the City itself cannot physically injure a plaintiff.  Even further, the Complaint does not allege exactly what the City (or its agents) did to be violent or threaten violence against Plaintiffs.

Therefore, the Complaint lacks sufficient specificity to allege a violation of Civil Code section 51.7 (Ralph Civil Rights Act of 1976).

                                                     iv.          Fifth Cause of Action – Violation of the Tom Bane Civil Rights Act

To allege a violation of Civil Code section 52.1, a plaintiff must allege the defendant interfered with plaintiff’s rights secured by the Constitution or laws of the United States or California, through use of threat, intimidation, or coercion.  (Civ. Code, § 52.1.)  As discussed above, a plaintiff must allege specific facts; general allegations are insufficient to allege government tort liability.  (Mittenhuber, supra, 142 Cal.App.3d at p. 5.)

Here, the Complaint alleges:

Defendants in violation of Civil Code Section 52.1, intentionally interfered with Plaintiff's Civil Rights by threats, intimidation, coercion and physical force. Defendant through threats, intimidation and phsyical [sic] force caused Plaintiffs to reasonably believe that if they exercised their right to freedom of association and movement, Defendant would commit violence against them and arrest them. Defendants had the ability to carry out the threats and acted violently against Plaintiffs by physically detaining Plaintiffs. Defendants without cause or justification intended to deprive Plaintiffs of their liberty and the enjoyment of the interest associated with that liberty. Plaintiffs were harmed as a direct result of Defendants conduct.

(Complaint at p. 8.)

            Again, Plaintiffs do not specifically allege who at the City allegedly threatened or used physical force, or what specifically the City or agents of the City are alleged to have done to threaten Plaintiffs or use physical force against Plaintiffs. 

Therefore, the Complaint lacks the requisite specificity to allege a violation of Civil Code section 52.1 (Tom Bane Civil Rights Act).

2.     MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  Here, the Complaint alleges:

Plaintiffs Pray for Punitive Damages. Defendants acted withmalice, [sic] oppression, or fraud. Defendant's malice, oppression, and fraud was intentional conduct by the Defendants, who conspired to and did act together to employ and train individuals to act for them with advance knowledge that the idividuals [sic] are unfit for the position, and that those employees acted with a knowing disregard of the rights and safety of others. The conduct constituting malice, oppression, or fraud was authorized and approved by one or more of the Defendants.

(Complaint at p. 9.) 

However, “[p]unitive damages are prohibited in an action against a public entity.”  (Pearl v. City of Los Angeles (2019) 36 Cal.App.5th 475, 486 citing Gov. Code § 818.)  Government Code section 818 provides:  “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”

Therefore, the Court determines that Defendant is immune from Plaintiff’s claim for punitive damages as pled as the Sixth Cause of Action. 

3.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiffs have not met that burden, as they have failed to oppose the demurrer and therefore do not address whether leave should be granted if either the demurrer is sustained or the motion to strike is granted. 

CONCLUSION AND ORDER

For the reasons stated, the Court sustains without leave to amend Defendant’s demurrer to the entire complaint regarding Plaintiff Wilmer Dager, and sustains without leave to amend Plaintiff Wilmer Dager and Roberto Dagers’s First through Fifth Causes of Action. 

Further, the Court strikes Plaintiff Wilmer Dager and Roberto Dagers’s request for punitive damages as pled as the Sixth Cause of Action without leave to amend. 

Further, Defendant shall lodge (and deliver courtesy copies to Department 207) proposed Orders and a Judgment of Dismissal in conformity with Court’s rulings on or before May 22, 2025.  The Court does not find the proposed Orders lodged on April 2, 2025 to be satisfactory considering the Court’s rulings. 

Defendant shall provide notice of the Court’s rulings and file the notice with a proof of service forthwith. 

DATED:  May 8, 2025                                                           ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court