Judge: Michael P. Linfield, Case: 22STCV21003, Date: 2023-01-18 Tentative Ruling
Case Number: 22STCV21003 Hearing Date: January 18, 2023 Dept: 34
SUBJECT: Demurrer
Moving Party: Defendant
City of Long Beach
Resp. Party: None
Defendant City of Long Beach’s
Demurrer is SUSTAINED in part. The Demurrer is sustained without leave to amend
the cause of action for breach of contract. The Demurrer is OVERRULED as to the
cause of action for theft and the other grounds discussed herein.
PRELIMINARY COMMENT:
The Court recognizes that to the
pro per litigant, “interrogatories, requests for admissions, law and motion
proceedings, and the like” are “baffling devices.”¿¿(Bruno v. Superior Court¿(1990)
219 Cal.App.3d 1359, 1363, quoting¿Burley v. Stein¿(1974) 40 Cal.App.3d
752, 755, fn. 3.)¿¿Further, “[p]roviding access
to justice for self-represented litigants is a priority for California
courts.”¿¿(California Rules of Court, rule 10.960, subdivision (b).)
Nonetheless, Plaintiff did not oppose the demurrer. The Court must base
its analysis on the law. Of course, if
Plaintiff wishes to be heard on these matters, he may appear at oral argument
on the demurrer.
Additionally, the Court is not sure why this is filed as an unlimited
case. It appears from the complaint that
Plaintiff is suing for approximately $10,000. (See Complaint, ¶ 10.) If either party believes that this case
should be sent to a limited civil court, they can filed the appropriate
pleadings.
BACKGROUND:
(1) Breach of contract;
(2) Theft;
(3) Wrongful withholding
of property.
On December 20, 2022,
Defendant City of Long Beach (erroneously sued as Shoreline Marina) filed its
Demurrer.
On January 10, 2023,
Defendant City of Long Beach filed its Notice of Non-Opposition.
Plaintiff has not
filed an opposition or other response to the Demurrer.
ANALYSIS:
I.
Legal Standard
A demurrer is a pleading used to test the legal sufficiency of other
pleadings. It raises issues of law, not fact, regarding the form or content of
the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for the purpose of the ruling
on the demurrer, all facts pleaded in the complaint are assumed to be true,
however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)
A demurrer can be used only to challenge defects that appear on the
face of the pleading under attack; or from matters outside the pleading that
are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No
other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A
demurrer is brought under Code of Civil Procedure section 430.10 (grounds),
section 430.30 (as to any matter on its face or from which judicial notice may
be taken), and section 430.50(a) (can be taken to the entire complaint or any
cause of action within).
A demurrer may be brought under Code of Civil Procedure section 430.10,
subdivision (e) if insufficient facts are stated to support the cause of action
asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10,
subdivision (f)), is disfavored and will only be sustained where the pleading is
so bad that defendant cannot reasonably respond—i.e., cannot reasonably
determine what issues must be admitted or denied, or what counts or claims are
directed against him/her. (Khoury v. Maly's of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Id.)
II.
Discussion
Defendant City of Long Beach demurs
as follows:
(1)
As to the entire Complaint, on the grounds
that Plaintiff has failed to allege compliance with the claim filing
requirement under the Government Claims Act;
(2)
As to the cause of action for Breach
of Contract, on the grounds that Plaintiff has failed to state sufficient facts
to constitute the cause of action;
(3)
As to the cause of action for Theft,
on the grounds that Plaintiff cannot maintain a private cause of action for a
violation of a criminal statute; and
(4)
As to the entire Complaint, on the
grounds that Plaintiff has not identified any specific statute or statutes
authorizing direct liability against Defendant City of Long Beach and there is
no vicarious liability here.
(Demurrer, pp. 4:2–3, 5:7, 5:17, 7:5.)
A. Government
Claims Act
1.
Legal
Standard
“Except as
provided in Sections 946.4 and 946.6, no suit for money or damages may be
brought against a public entity on a cause of action for which a claim is
required to be presented in accordance with Chapter 1 (commencing with Section
900) and Chapter 2 (commencing with Section 910) of Part 3 of this division
until a written claim therefor has been presented to the public entity and has
been acted upon by the board, or has been deemed to have been rejected by the
board, in accordance with Chapters 1 and 2 of Part 3 of this division.” (Gov.
Code, § 945.4.)
“There shall be
presented in accordance with Chapter 1 (commencing with Section 900) and
Chapter 2 (commencing with Section 910) all claims for money or damages against
local public entities except any of the following: . . . (h) Claims that relate
to a special assessment constituting a specific lien against the property
assessed and that are payable from the proceeds of the assessment, by offset of
a claim for damages against it or by delivery of any warrant or bonds
representing it.” (Gov. Code, § 905, subd. (h).)
“No claim is
required to be filed to maintain an action against a public entity for taking
of, or damage to, private property pursuant to Section 19 of Article I of the
California Constitution. (Gov. Code, § 905.1)
2.
Analysis
Here, Plaintiff has alleged that
Defendant City of Long Beach has: (1) taken his boat (i.e., his private
property); and (2) charged him a special assessment (i.e., the towing fees and
docking fees) that may be payable from an auction of the boat. (Complaint,
“Complaint for Damages”, pp. 2:1–5, 3:16–20, 4:3–7.)
As Defendant City of Long Beach has
not adequately explained why the Government Claims Act applies here, the Court
OVERRULES the Demurrer on these grounds.
B. Breach
of Contract
1.
Legal
Standard
To state a cause of action for breach of contract, Plaintiff must be
able to establish “(1) the existence of the contract, (2) plaintiff’s
performance or excuse for nonperformance, (3) defendant’s breach, and (4) the
resulting damages to the plaintiff.” (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
2.
Analysis
Here, Plaintiff states that there is
no contract. (Complaint, Item 8.) Given that Plaintiff has explicitly stated
that an element of the cause of action for breach of contract does not exist,
the Court SUSTAINS without leave to amend this cause of action on these
grounds.
C. Theft
1.
Legal
Standard
“Every person who
buys or receives any property that has been stolen or that has been obtained in
any manner constituting theft or extortion, knowing the property to be so
stolen or obtained, or who conceals, sells, withholds, or aids in concealing,
selling, or withholding any property from the owner, knowing the property to be
so stolen or obtained, shall be punished by imprisonment in a county jail for
not more than one year, or imprisonment pursuant to subdivision (h) of Section
1170.” (Pen. Code, § 496, subd. (a).)
“Any person who
has been injured by a violation of subdivision (a) or (b) may bring an action
for three times the amount of actual damages, if any, sustained by the plaintiff, costs
of suit, and reasonable attorney’s fees.” (Pen. Code, § 496, subd. (c).)
2.
Analysis
Here, Plaintiff alleges: (1) that
Plaintiff suffered an emergency on his boat due to being stricken ill with
COVID-19; (2) that Defendant City of Long Beach towed and held Plaintiff’s
boat; (3) that Defendant City of Long Beach never entered into a contract with
Plaintiff regarding Defendant’s withholding of Plaintiff’s boat; (4) that
Plaintiff was not released from quarantine until February 10, 2022; and (5)
that upon Plaintiff’s release from quarantine, Plaintiff came to reclaim his
property. (Complaint, “Complaint for Damages,” pp. 1–3.)
As to the relevant question of law,
the Court disagrees with Defendant City of Long Beach. Pursuant to Penal Code
section 496 (and not section 497, as cited by Defendant), Plaintiff is able to
obtain civil damages as a result of theft.
The Court OVERRULES the Demurrer as
to Plaintiff’s cause of action for theft.
D. Statutory
Liability Against Public Entity
1.
Legal
Standard
“Except as otherwise
provided by statute: (a) 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.” (Gov. Code, § 815, subd. (a).)
“A public entity is
liable for injury proximately caused by an act or omission of an employee of
the public entity within the scope of his employment if the act or omission
would, apart from this section, have given rise to a cause of action against
that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).)
2.
Analysis
Here, Defendant City of Long Beach
argues that Plaintiff has not cited a statute upon which Defendant City of Long
Beach could be held liable. Yet Government Code section 815.2, subdivision (a)
clearly authorizes such vicarious liability, and Defendant City of Long Beach
has not made clear based upon these allegations why it is not possible as a
matter of law that one of Defendant City of Long Beach’s workers acted
wrongfully in withholding Plaintiff’s boat.
The Court OVERRULES the Demurrer on
the grounds that there is no statutory authorization for liability here.
III.
Conclusion
Defendant City of Long Beach’s
Demurrer is SUSTAINED in part. The Demurrer is sustained without leave to amend
the cause of action for breach of contract. The Demurrer is OVERRULED as to the
cause of action for theft and the other grounds discussed herein.
Defendant City of Long Beach is to
give notice.