Judge: Michael Shultz, Case: 24STCV31697, Date: 2025-05-06 Tentative Ruling
Case Number: 24STCV31697 Hearing Date: May 6, 2025 Dept: 40
24STCV31697 Aron Macal
Montenegro v. Mike Hallinan, et al.
[TENTATIVE] ORDER SUSTAINING DEMURRER
TO COMPLAINT BY DEFENDANTS, CITY OF CLAREMONT AND OFFICER L. ASTI
I. BACKGROUND
The complaint
alleges that Plaintiff, a professor at Claremont
College, was participating in a student-led protest by playing Palestinian
music through a portable loudspeaker. Plaintiff alleges that the protest was
relevant to a course he was teaching. Plaintiff alleges that Defendant, Mike
Hallinan (“Hallinan”), the college’s assistant Vice President, had Plaintiff
arrested for trespass while Plaintiff was teaching a class. Plaintiff alleges
claims for (1) false arrest and imprisonment, (2) negligent supervision under
Civil Code § 1714, (3) intentional infliction of emotional distress, (4) violations
of the Bane and Ralph Acts, and (5) discrimination in violation of Government
Code §11135.
II. ARGUMENTS
A. Demurrer
filed March 7, 2025.
Defendants,
City of Claremont (“City”) and Officer L. Asti (“Officer Asti”) (collectively “City
defendants”), demur to the second and fifth causes of action. The second cause
of action fails because Plaintiff must allege a statutory basis for liability
against a public entity. Civil Code § 1714 does not qualify as it does not
impose direct tort liability against a public entity.
Defendants
argue that the fifth cause of action for violation of Government Code § 11135
also fails because Plaintiff did not allege facts to support Defendants’
violation of the statute. Claims under that statute are left to the Department
of Fair Employment and Housing (“DFEH”) and do not provide for a private right
of action. The statute is designed to prohibit discrimination in the
educational context.
B. Opposition
filed April 23, 2025.
Plaintiff argues
that Civil Code § 1714, a general negligence statute can support a claim
against a public entity. Defendant City is not immune from liability for false
arrest. Defendant’s case authority is inapplicable. The City is vicariously
liable for the acts of its employee Officer Asti, who is liable to the same
extent as a private employee.
Plaintiff
argues the fifth cause of action is properly alleged. Plaintiff is not seeking
exemplary damages for that claim. Plaintiff seeks equitable remedies. Plaintiff
asks for leave to amend if the court sustains demurrer.
C. Reply
filed April 29, 2025.
Plaintiff
cannot rely on the general negligence provision of Civil Code § 1714 for
liability against the City because public entities are liable only if a statute
imposes liability. The cause of action is duplicative of the first cause of
action for false arrest. Plaintiff did not allege facts to support a claim that
the City intentionally discriminated against Plaintiff to support a claim for
violation of Gov Code § 11135. Plaintiff alludes to statements made by
President Starr, Pomona College’s president that cannot be attributed to the
City.
III. LEGAL
STANDARDS
A demurrer tests the sufficiency of a
complaint as a matter of law and raises only questions of law. (Schmidt
v. Foundation Health (1995) 35
Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must
assume the truth of the properly pleaded factual allegations as well as facts
that can be reasonably inferred from those expressly pleaded facts. The court
may also consider matters properly subject to judicial notice. (Blank
v. Kirwan (1985) 39 Cal.3d
311, 318.)
The court may not consider contentions, deductions, or
conclusions of fact or law. (Moore
v. Conliffe (1994) 7 Cal.4th
634, 638.) Plaintiff is required to allege facts sufficient to establish every
element of each cause of action. (Rakestraw
v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint
fails to state facts sufficient to constitute a cause of action, courts should
sustain the demurrer. Code Civ. Proc., § 430.10(e); Zelig
v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1126.)
IV.
DISCUSSION
A.
The second cause
of action for negligent supervision fails to state a claim.
A public entity is not liable for an injury “[e]xcept as
provided by statute.” (Gov. Code § 815.) Plaintiff must allege sufficiently detailed facts to support an
inference that each of the statutory elements of liability is satisfied.
General allegations are regarded as inadequate. (Mittenhuber
v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5. Moreover,
“[s]ince the duty of a governmental agency can only be created by statute or
‘enactment,’ the statute or ‘enactment‘ claimed to establish the duty must at
the very least be identified." (Searcy
v. Hemet Unified School Dist. (1986)
177 Cal.App.3d 792, 802.)
Plaintiff alleges that all Defendants breached their duties to
exercise restraint in use of force and the exercise of arrest powers. Plaintiff
relies on section Civil Code section 1714 which states in pertinent part that
“[e]veryone is responsible, not only for the result of his or her willful acts,
but also for an injury occasioned to another by his or her want of ordinary
care or skill in the management of his or her property or person, … .” (Civ. Code, § 1714).
A public entity’s direct liability “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.” (Summerfield
v. City of Inglewood (2023) 96
Cal.App.5th 983, 999.)
Plaintiff does not cite any other statute imposing liability
against a government entity. Summerfield makes clear that liability against the City, a
public entity, cannot be based on Civ. Code, § 1714. Accordingly, the demurrer
is sustained as to second cause of action.
B.
The fifth cause of
action for violation of Gov. Code section 11135 fails to state a claim.
Plaintiff alleges here that it is illegal for any State-funded
institution to discriminate on the basis of a protected status. (Complaint, ¶
69.) Plaintiff alleges that Hallinan’s conduct, which was ratified by Pomona
College and the Claremont Colleges violated section 11135. Plaintiff does not
allege any facts to support liability against the City or Officer Asti.
Section 11135 bars discrimination or denial of full and equal
access to benefits by a state-funded program or activity against a person based
on that person’s protected status. (Gov. Code, § 11135.) Defendants correctly argue that DFEH "has
the power and duty, ‘to receive, investigate, conciliate, mediate, and
prosecute complaints alleging practices made unlawful pursuant to Article 9.5
(commencing with Section 11135) of Chapter 1 of Part 1, except for
complaints relating to educational equity brought under Chapter 2 (commencing
with Section 200) of Part 1 of Division 1 of Title 1 of the Education Code and
investigated pursuant to the procedures set forth in Subchapter 5.1 of Title 5
of the California Code of Regulations, and not otherwise within the
jurisdiction of the department.” (Collins
v. Thurmond (2019) 41
Cal.App.5th 879, 904 [italics in
original].)
This cause of action does not allege a violation of rights
relating to educational equity against the City defendants, and therefore, the
exception does not apply to this action.
Moreover, the process for violations of this section is
governed by the Civil Rights department. Where a state agency has reasonable
cause to believe that a contractor, grantee, or local agency has violated this
section, "the head of the state agency, or that person's designee, shall
notify the contractor, grantee, or local agency of such violation and shall
submit a complaint detailing the alleged violations to the Civil Rights
Department for investigation and determination pursuant to Article 1
(commencing with Section 12960) of Chapter 7 of this code." (Gov. Code, § 11136.)
Plaintiff has not cited any case authority to suggest that a
person subject to discrimination under this section has a private right of
action against the state-funded agency. Rather, the statute describes a process
to be investigated by the Civil Rights Department.
Elsewhere in the complaint, Plaintiff alleges that Officer Asti
told Plaintiff he was being arrested for trespassing on college property.
(Complaint, ¶ 25.) Plaintiff was arrested, forcibly handcuffed, forced into a
police car and held in custody for several hours. (Complaint, ¶ 26.) Plaintiff
alleges that the City failed to monitor, supervise and discipline the people
involved in the false arrest and imprisonment. (Complaint, ¶ 35.)
Even if Plaintiff has a private right of action under section
11135, which is not expressly supported by the statute or Collins, the complaint does not clearly allege that the
City defendants’ conduct was discriminatory and based on Plaintiff’s protected
status.
V.
CONCLUSION
Accordingly, Defendant’s demurrer to the second and fifth
causes of action of Plaintiff’s complaint is SUSTAINED. Leave to amend is
ordinarily given if there is a reasonable possibility that the defect can be
cured. (Association
of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.) However, the burden is on the plaintiff, to “demonstrate
the manner in which the complaint might be amended ... and how that amendment will change the legal
effect of the pleading.
The second cause of action cannot support government liability
based on Civil Code § 1714. The fifth cause of action does not serve as the
basis for a private right of action and fails to state facts implicating the
City defendants. As Plaintiff has not shown how these defects can be cured, the
court is inclined to SUSTAIN without leave to amend.