Judge Peter A. Hernandez, Case Number: 24STCV09951, Date: 2024-09-30 Tentative Ruling

Defendant Sgt. Dawanna Gilbert’s Demurrer to Plaintiff’s Complaint is SUSTAINED. The Court will inquire at the hearing whether leave to amend should be granted.

On May 3, 2023, Plaintiff filed a Complaint for injuries he sustained from a motor vehicle collision that occurred on October 16, 2016. Plaintiff asserts the following causes of action against Defendants Dawanna Gilbert, Armando Federico Reyes, Daniel Barrios, Los Angeles Sheriff’s Department, City Logistics & Transport, and Does 1-25 (“Defendants”) [1]:

On August 30, 2024, Defendant Stg. Dawanna Gilbert (“Gilbert”) filed this Demurrer to Plaintiff’s Complaint. As of September 23, 2024, Plaintiff has not filed an opposition to Gilbert’s Demurrer which was due on September 17, 2024. As such, Gilbert has not filed a reply.

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Gilbert demurs, pursuant to Code of Civil Procedure section 430.10, subdivision (e), to all causes of action in Plaintiff’s Complaint, on the basis that they each fail to state facts sufficient to constitute a cause of action. Gilbert also demurs, per Code of Civil Procedure section 430.10, subdivision (f), to Plaintiff’s Complaint on the basis that it is uncertain.

Gilbert also argues that (1) Plaintiff’s Complaint is barred by the relevant statute of limitations; (2) Plaintiff’s causes of action against Gilbert are barred by the immunity for failure to prosecute or enforce the law; (3) Plaintiff’s first four causes of action are barred by the statutory basis rule; (4) Plaintiff does not allege compliance with the claims presentation requirements of the Government Claims Act; (5) the Court lacks subject matter jurisdiction; and (6) Plaintiff’s Complaint is barred by issue preclusion and claim preclusion.

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference 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. (C.C.P. §430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Gilbert’s counsel declares that on August 8, 2024, she sent correspondence to Plaintiff requesting to meet and confer but was unable to meet with Plaintiff since Plaintiff is currently in prison. (Dem., 7:13-18; Brenner Decl., ¶ 4-6.)

Gilbert’s Request for Judicial Notice (“RJN”) is granted. “A court may properly take judicial notice of its own records. (Evid. Code, § 452, subd. (e).)” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21.)

However, the Court does not grant judicial notice of factual findings in the above documents. Factual findings in prior judicial orders, opinions, or decisions are not a proper subject of judicial notice. (Kilroy v. State of Calif. (2004) 119 Cal.App.4th 140, 148.) But the finding itself may be a proper subject of judicial notice if it has a res judicata or collateral estoppel effect in a subsequent action. (Ibid.)

Thus, the Court grants judicial notice of factual findings if they have a res judicata effect or collateral estoppel effect in this action.

“The elements of a cause of action for professional negligence are (1) the existence of the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Plaintiff’s Complaint makes one mention of Gilbert stating that she is an individual residing in the County of Los Angeles. (Cmplt., ¶ 1.) However, Plaintiff includes Gilbert in its allegations claiming that “Defendants negligently failed to take steps to make sure that the collision report [10/16/2016] contained the correct traffic violation and supporting facts, in failing to do so, has caused irrepariable [sic] damage to his rights preserved by the Victim Bill Of Rights provided under the states 'constitution".” (Cmplt. ¶ 12.)

Gilbert argues that Plaintiff’s allegations admit that it was California Highway Patrol (“CHP”) which wrote the traffic collision report disputed by Plaintiff, not the Los Angeles County Sherriff’s Department (“LASD”) who employs Gilbert. (Dem., 13:13-16.) Thus, Gilbert argues that Plaintiff fails to allege a connection between Gilbert and CHP. (Ibid.) Additionally, Gilbert argues that Plaintiff failed to make allegations that Gilbert owed any professional duty to Plaintiff which is essential for a professional negligence cause of action. (Id., 13:21-28.)

Plaintiff fails to allege sufficient facts to assert a professional negligence cause of action. Plaintiff’s Complaint does not show that Gilbert was involved in the drafting of the collision report in any professional capacity to create a duty. As such, Plaintiff did not address Gilbert’s specific conduct or professional capacity to allege sufficient facts to assert that a duty exists for a professional negligence cause of action.

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Plaintiff makes general allegations as to all Defendants for negligence. (Cmplt., ¶¶ 14-20.) Specifically, Plaintiff alleges that there was a dangerous condition and that the automobile involved in the collision was driven negligently. (Ibid.)

Gilbert argues that since there are no allegations stablishing that Gilbert drove the vehicle involved, Plaintiff did not establish the existence of a duty of care which is essential to a claim of negligence. (Dem., 14:9-15.)

The Court agrees with Gilbert’s argument. Plaintiff does not allege sufficient facts to assert that Gilbert owed a duty to Plaintiff in regard to the driving of the vehicle involved or the collision itself. Plaintiff’s allegations are too general to create any imposition of a duty on Gilbert.

Plaintiff does not identify a third cause of action but makes general allegations regarding injuries sustained from the vehicle collision involved. (Cmplt., ¶¶ 25-29.)

Gilbert argues that Plaintiff’s Complaint fails to state a third cause of action. (Dem., 14:16-18.)

As such, the Court finds that Plaintiff failed to allege sufficient facts to assert a third cause of action.

“The law of negligent infliction of emotional distress in California is typically analyzed by reference to two theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks omitted.)

Plaintiff makes general allegations that Defendants owed Plaintiff a duty of care and breached this duty. (Cmplt., ¶¶ 30-31.)

Gilbert argues that Plaintiff made no additional allegations to support an emotional distress claim or to support that Gilbert owed a duty to Plaintiff. (Dem., 14:19-26.)

The Court finds that Plaintiff’s allegations are insufficient to impose any duty of care on Gilbert or to allege that Gilbert breached any duty which is essential to a negligent infliction of emotional distress cause of action.

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.)

A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.) “The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” (California Insurance Guarantee Association v. Superior Court (1991) 231 Cal.App.3d 1617, 1624), and a duplicative cause of action is subject to demurrer (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290). Further, “there is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.)

Plaintiff seeks declaratory relief requesting that the Court finds that Gilbert and LASD breached a fiduciary obligation by failing to hold Defendant Armando Reyes (“Reyes”) criminally liable for reckless driving after being found responsible for causing the collision involved in this action. (Cmplt., ¶ 36.) Plaintiff also alleges that Gilbert and LASD’s failure to prosecute Reyes obstructed the administration of justice. (Id., ¶ 37.)

Gilbert argues that Plaintiff has not alleged a legal theory for declaratory relief to support his claims. (Dem., 15:1-3.) Additionally, Gilbert argues that the Court lacks jurisdiction to direct any prosecution which is the sole responsibility of the public prosecutor. (Id., 15:8-19.)

The Court agrees with Gilbert in that declaratory relief is inappropriate in Plaintiff’s case. Since there are other available methods of relief for Plaintiff’s injuries, Plaintiff has not alleged sufficient facts to assert that a cause of action for declaratory relief exists.

Gilbert demurs to Plaintiff’s Complaint arguing that it is uncertain since Plaintiff fails to label which allegations pertain to each defendant. Gilbert also argues that the uncertainty of Plaintiff’s Complaint does not show a connection between Gilbert and Plaintiff’s causes of action.

“A statute of limitations defense may be asserted by a general demurrer.” (SLPR, L.L.C. v. San Diego Unified Port District (2020) 49 Cal.App.5th 284, 316.) As grounds for demurrer, expiration of a limitations period is a subspecies of Code of Civil Procedure section 430.10, subdivision (e), failure to state a cause of action. (Cavey v. Tulla (2021) 69 Cal.App.5th 310, 326.)

However, “ ‘ “[a] demurrer on the ground of the bar of the statute of limitations will not lie where an action may be, but is not necessarily barred.” It must appear affirmatively that, upon the face of the complaint, the right of action is necessarily barred.’” (Leasequip, Inc. v. Dapeer (2002) 103 Cal.App.4th 394, 400.) In order for a court to sustain a demurrer based on a statute of limitations defense, “ ‘the complaint [must allege] every fact which the defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense. [Citation.]’ ” (Ibid., citing Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

Gilbert argues that Plaintiff’s action is time-barred since Plaintiff’s alleged injuries occurred on October 16, 2016 and Plaintiff’s Complaint was filed on May 3, 2023 which is more than two years past the date of the vehicle collision. (Dem., 10:10-15.)

Code of Civil Procedure § 335.1 states: “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” The statute of limitation can be tolled while a party is in custody, for up to two years. (Code Civ. Proc. § 352.1.)

Gilbert argues that even though Plaintiff went to state prison on November 21, 2019, the statute of limitations was not tolled since the two year limitations period had expired prior to 2019. (Dem., 10:16-21.)

Additionally, Gilbert argues that Plaintiff’s allegations against Gilbert is that she failed to prosecute Reyes for reckless driving is also time-barred by California Penal Code section 802, subdivision (a). (Dem., 10:21-28.) Section 802, subdivision (a) states “...prosecution for an offense not punishable by death or imprisonment in the state prison...shall be commenced within one year after commission of the offense.” Thus, Plaintiff’s action should have been filed by October 16, 2019. As such, Plaintiff’s Complaint filed on May 3, 2023 is untimely. (Dem., 11:1-4.)

The Court finds that Plaintiff’s Complaint is time-barred because Plaintiff filed his Complaint more than two years after the day of the vehicle collision.

Gilbert argues that Plaintiff cannot sue LASD or Gilbert for failing to prosecute Reyes and Defendant Daniel Barrios (“Barrios”) for the vehicle collision involved in this case according to Government Code section 818.2. (Dem., 11:7-16.) Gilbert cites section 818.2 stating that “ ‘[a] public entity is not liable for an injury caused …by failing to enforce any law.’ Similarly, Government Code section 845 provides: ‘Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.’ (Summerfield v. City of Inglewood (2023) 96 Cal.App.5th 983, 998.)” (Ibid.)

The Court finds that Gilbert, as a public employee, is not liable for LASD’s alleged failure to prosecute Reyes and Barrios. As such, Plaintiff’s suit is baseless.

Gilbert also argues that Plaintiff’s first four causes of action are barred by the statutory basis rule. (Dem., 11:19-26.)

The Court finds that Plaintiff’s allegations against Gilbert do not have a sufficient statutory basis.

Gilbert argues that Government Code section 945.4 requires a written claim to a public entity before a suit may be brought against them. (Dem., 12:13-28.) Gilbert cites Rubenstein v. Doe (2017) 3 Cal.5th 903, 906 holding that “[c]omplaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action.” (Ibid.) Thus, since Plaintiff did not make any allegations that he presented the claim or that he was excused from doing, Plaintiff’s first four causes of action should be subject to demur. (Id., 13:2-3.)

The Court finds that Plaintiff did not comply with Government Code section 945.4.

Defendant Sgt. Dawanna Gilbert’s Demurrer to Plaintiff’s Complaint is SUSTAINED. The Court will inquire at the hearing whether leave to amend should be granted.

[1] Plaintiff’s Complaint makes allegations referring to Defendants generally. It is unclear when certain allegations pertain to specific Defendants.

[2] Plaintiff’s Complaint does not include a title for his third cause of action and portions of the relevant allegations are redacted. (Cmplt., ¶¶ 25-29.) Gilbert’s Demurrer summarizes Plaintiff’s Complaint and includes “personal injury” as the third cause of action. (Dem., 9:8-10.)