Gary Salzman, et al. v. County of Los Angeles, et al.

DEFENDANTS’ DEMURRER TO COMPLAINT

 

MOVING PARTY: Defendants County of Los Angeles, Ricardo Castro, Jose Ayala, Daniel Rose, Vivian Santacruz, Benjamin Aranda, Carlton Skerrett, and Dr. Shohreh Ghaemian

RESPONDING PARTY(S): Plaintiffs Gary Salzman, Mary Salzman, Chloe Brockway, and T.J. (a minor, by and through his guardian ad litem, Jennifer Jones)

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

While incarcerated at Twin Towers Correctional Facility, Gary Salzman Jr. was murdered by his cell mate. Salzman Jr.’s father, Plaintiff Gary Salzman, mother Plaintiff Mary Salzman, and children Plaintiff T.J. and Plaintiff Chloe Brockway, now bring this action against the County of Los Angeles and various employees for Salzman’s death. 

Plaintiffs allege Defendants failed to take reasonable measures to prevent Salzman’s death and delayed in rendering life-saving aid. Accordingly, they bring causes of action against the County and individual Defendants for (1) negligence, (2) violation of the Bane Act, and (3) failure to summon medical care.

Defendants now demurrer to each cause of action in the Complaint.  Plaintiffs opposed.

TENTATIVE RULING:

Defendants’ Demurrer to the First Amended Complaint is SUSTAINED in full, without leave to amend. 

Defendants’ Request for Sanctions is DENIED without prejudice.

Defendants are to serve and file a proposed Judgment of Dismissal, pursuant to C.C.P.§ 581 (f)(3).

Any and all future dates are advanced and vacated.

Moving party to give notice, unless waived.  

DISCUSSION:

Demurrer

I. Meet and Confer

The Declaration of attorney Laura E. Inlow reflects that the meet and confer requirement was satisfied.  (CCP § 430.41.)

II. Judicial Notice

Pursuant to Defendant’s request, and without objection, the court takes judicial notice of Exhibits 1-9. 

The court takes judicial notice of the exhibits without assuming the truth of the assertions contained therein. (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal. App. 4th 798, 808.)

III. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 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 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. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

IV. Analysis

A. Procedural Background

Plaintiff Gary Salzman originally filed suit in this court under case number 21STCV14966 on April 21, 2021, for damages arising from the death of his son, Gary Salzman (decedent), in the Twin Towers Correctional Facility (TTCF) on July 5, 2020. Defendants removed the matter to federal court where it proceeded under case number 21-CV-00094-PA-SK. (Inlow Decl., ¶ 5). 

During the case, plaintiffs Mary Salzman, the mother of decedent, and decedent’s children Chloe Brockway and minor T.J., were also added as plaintiffs. (Inlow Decl., ¶ 6).  Later, these Plaintiffs dismissed their claims, leaving only Plaintiff Gary Salzman. (Inlow Decl., ¶ 8; Exhibit 5).

On October 19, 2022, the federal court granted Defendants’ motion for summary judgment as to all of Plaintiff Gary Salzman’s federal causes of action. The Court declined to exercise supplemental jurisdiction over the state law claims of Gary Salzman and accordingly

dismissed those claims without prejudice. (Inlow Decl., ¶ 12; Exhibit 9). 

Plaintiff then re-filed those claims before this court, also reviving the claims of Plaintiffs Mary Salzman, Chloe Brockway and minor T.J.

B. Allegations in Complaint

While incarcerated at Twin Towers Correctional Facility, Gary Salzman Jr. was murdered by his cell mate. (Compl. ¶ 2.) Salzman Jr.’s father, Plaintiff Gary Salzman, mother Plaintiff Mary Salzman, and children Plaintiff T.J. and Plaintiff Chloe Brockway now bring this action against the County of Los Angeles and various employees for Salzman’s death. 

Plaintiffs allege Defendants failed to take reasonable measures to prevent Salzman’s death and delayed in rendering life-saving aid. (Id. ¶¶ 49, 50, 61, 62, 66.) Accordingly, they bring causes of action against the County and individual Defendants for (1) negligence, (2) violation of the Bane Act, and (3) failure to summon medical care.

C. Demurrer to Claims by Plaintiffs Mary Salzman, Chloe Brockway, and T.J.

First, Defendants argue the claims by Plaintiffs Mary Salzman, Chloe Brockway, and T.J. fail because these Plaintiffs did not file a timely Government Tort Claim.

It is undisputed that the claims here are subject to the Tort Claims Act. It is also undisputed that Plaintiff Gary Salzman was the only Plaintiff named in the Tort Claim. (See Inlow Decl. ¶ 2; Compl. ¶ 7.)

Generally, no suit for money or damages may be brought against a government entity (or against a government employee acting in the scope of employment) unless and until a timely claim has been presented pursuant to the Government Claims Act (Gov.Code § 810 et seq.) and either acted upon or deemed rejected by the passage of time. (Gov.Code §§ 945.4, 950.2, 912.4.)  “[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement. Otherwise, his complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action.” (State of California v. Superior Ct. (2004) 32 Cal. 4th 1234, 1243.) 

“[C]ourts employ a test of substantial rather than strict compliance in evaluating whether a plaintiff has met the demands of the claims act. If the claim satisfies the purpose of the act without prejudice to the government, substantial compliance will be found.” (Mouchette v. Board of Education (1990) 217 Cal.App.3d 303, 311.) “[N]o more is required under the statutory scheme than the governmental entity be apprised of the claim and have an opportunity to investigate and potentially to settle the matter.” (Krainock v. Superior Court (1990) 216 Cal.App.3d 1473, 1477.) “The primary purpose of the governmental claims act is to apprise the governmental body of an imminent legal action so that the entity may investigate and evaluate the claim and, where appropriate, avoid litigation by settling meritorious claims. Thus, the act should not be allowed to become a snare for the unwary litigant if its statutory purposes have been satisfied.” (S. California Edison Co., supra, 217 Cal. App. 4th at 238.)  

Despite the rule of substantial compliance,“[g]enerally, each claimant must file his or her own tort claim. When people suffer separate and distinct injuries from the same act or omission, they must each submit a claim. One claimant cannot rely on a claim presented by another.” (Castaneda v. Dep't of Corr. & Rehab. (2013) 212 Cal. App. 4th 1051, 1062.) “This rule applies where different claimants are alleging survivor theories and wrongful death theories of liability arising from the same transaction.” (Id.)

D. Demurrer to Claims by Plaintiff Gary Salzman 

Next, Defendants contend that Plaintiff Gary Salzman lacks standing to bring any survivorship claims on his son’s behalf. The survival statutes “prevent the abatement of the decedent's cause of action and provide for its enforcement by the decedent's personal representative or successor in interest.” (San Diego Gas & Elec. Co. v. Superior Ct. (2007) 146 Cal. App. 4th 1545, 1553; CCP §§ 377.20, 377.30.)

The Complaint alleges that it is decedent Gary Salzman Jr.’s children who are his successors in interest and personal representatives. (Compl. ¶¶ 12, 13.) Therefore, it is only them who possess standing to bring survival claims on behalf of decedent.  [FN 1]  Plaintiff Gary Salzman therefore lacks standing to the extent he tries to assert a survival action. And as already discussed, because the other Plaintiffs did not file government claims, their claims are subject to demurrer. 

Relatedly, Defendants contend that Plaintiff lacks standing to bring a wrongful death claim. CCP section 377.60 allows a wrongful death action by a decedent’s personal representative or:

(a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent’s parents.

(b) (1) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased.

There are no allegations by the decedent’s parents that they were dependent on the decedent. (See Complaint, generally.) It does not appear that Plaintiffs address this point in their opposition. 

Because the face of the Complaint reveals that it is decedent’s children who are his personal representatives, and because there is no indication or allegation that decedents parents were dependent on decedent, it is decedent’s children—and not Plaintiff Gary Salzman—who have standing to bring the claim. Thus, the claims by Plaintiff Gary Salzman are subject to demurrer.

Finally, as already discussed, Decedent’s children never filed a claim with the government. This defeats the claims by all Plaintiffs.

Accordingly, Defendants’ Demurrer to the Complaint is SUSTAINED in its entirety. It appears there is no probability of reasonable amendment, as Plaintiffs’ claims fail as a matter of law, and not due to a lack of allegations that could be supplemented. Therefore, no leave to amend is given. 

E. Defendants’ Request for Sanctions

Defendants seek sanctions against Plaintiffs for bringing this action, which they contend was “baseless and in bad faith.” (Mtn. 13: 4-5.)

CCP section 128.5 provides that “[a] trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”  “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. (CCP § 128.5(b)(2).)

A motion for sanctions under this section “shall be made separately from other motions or requests.” (§ 128.5(f)(1)(A).) Because Defendants’ request for sanctions is contained within the demurrer, it is procedurally deficient. 

Accordingly, Defendants’ request for sanctions is DENIED on that procedural basis alone. 

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated:   August 25, 2023 ___________________________________