Judge Randolph M. Hammock, Case Number: 24STCV10325, Date: 2024-08-19 Tentative Ruling

Plaintiff Danny De Leon brings this action against the City of Los Angeles Police Department and Officers Moreno and Argueta. Plaintiff’s brother, Jesse Patrick Del Leon, Jr., was tragically killed in a workplace accident at Estes Expressways when he was struck and dragged by a commercial truck. Plaintiff alleges that the LAPD and its officers were negligent in their investigation of the accident. Plaintiff asserts causes of action for (1) negligent performance of ministerial duty, (2) negligent undertaking in discretionary act, (3) negligent infliction of emotional distress, (4) injunctive relief, and (5) judicial orders.

However, Plaintiff will be given an opportunity at the hearing to submit a sufficient offer of proof as to how his Complaint can be successfully amended, as to any of the causes of action, consistent with this ruling. If he fails to do so, no leave will be granted.

The court declines to take judicial notice of Plaintiff’s Exhibits 1 through 4 as they are not relevant to the disposition of this motion. (See Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal. App. 4th 471, 482 [declining to take judicial notice of irrelevant matters].)

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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days…before the hearing.” (CCP 1005(b).) Here, Plaintiff filed his opposition on August 13, 2024, only four court days before the August 19th hearing.

Generally, “the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” [Citation.]” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.) Be that as it may, the court exercises its discretion to consider the untimely opposition, and it has done so..

Plaintiff alleges that his brother, Jesse Patrick De Leon aka “Alex,” was tragically killed from injuries he sustained at work after being struck and dragged by a commercial truck. (Compl. ¶¶ 38-40.) Plaintiff further alleges misconduct or negligence by the LAPD and its officers in its handling of the investigation into Alex’s death. (Id. ¶¶ 33, 41-43, 47-48.)

Plaintiff asserts causes of action for (1) negligent performance of ministerial duty, (2) negligent undertaking in discretionary act, and (3) negligent infliction of emotional distress. The underlying allegations for each cause of action are the same, that is, that Defendants were negligent in their investigation into Plaintiff’s brother’s death. The court construes these causes of action as a single cause of action for common law negligence. (Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1386 [When characterizing a pleading, it is policy to “emphasiz[e] substance over form”].)

Plaintiff also asserts causes of action for injunctive relief and a “request for judicial orders.” This court construes the request for judicial orders as a cause of action for declaratory relief. (Id.)

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.) “The Claims Act generally applies only to claims for money or damages, and not to actions for declaratory relief.” (Hart v. Alameda Cnty. (1999) 76 Cal. App. 4th 766, 782.) “This exception does not apply, however, where the demand for nonmonetary relief is merely incidental or ancillary to a prayer for damages.” (Id.)

The code claim requirements do not apply to nonpecuniary actions, “such as those seeking injunctive, specific or declaratory relief.” (Canova v. Trustees of Imperial Irrig. Dist. Employee Pension Plan (2007) 150 Cal. App. 4th 1487, 1493.) The court therefore focuses the analysis on the negligence claim.

But Plaintiff emphasizes in his opposition that he “seeks no monetary damages” by his negligence causes of action, and thus, no claim was required. (Opp. 2: 12.) Even so—and assuming the negligence claim could survive on nonmonetary damages—the cause of action fails for the additional reason of the lack of a duty owed to Plaintiff. The existence of a duty of care is an essential element of negligence. (See Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Duty “may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.)

Here, Plaintiff has not demonstrated that the City or Defendant-officers owed him any duty under these facts, whether it be imposed by law, assumed by Defendants, or through a special relationship. Plaintiff provides no authority suggesting that law enforcement owes a duty of care to the family-members of victims of crimes or accidents.

Accordingly, Defendants’ Demurrer to the First, Second, and Third Causes of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) It appears that the failure to provide a Government claim and the lack of a duty owed under these circumstances cannot be remedied. Therefore, no leave to amend is given.

By the Complaint, Plaintiff seeks orders (1) invalidating the subject L.A.P.D. injury investigation and (2) ordering a new investigation. (See Compl., Prayer for Relief, ¶¶ 1, 2.) In the alternative, Plaintiff asks the court to refer the matter to the Office of the LA County District Attorney or the California Attorney General. (Id. ¶¶ 3, 5.) Finally, Plaintiff seeks an order requiring training of L.A.P.D. officers. (Id. ¶ 4.)

As to an injunction, “[o]ur Supreme Court has emphasized that ‘principles of comity and separation of powers place significant restraints on courts’ authority to order or ratify acts normally committed to the discretion of other branches or officials. [Citations.] In particular, the separation of powers doctrine (Cal. Const., art. III, § 3) obligates the judiciary to respect the separate constitutional roles of the Executive and the Legislature.” (O'Connell v. Superior Ct. (2006) 141 Cal. App. 4th 1452, 1464.) With this in mind, the court concludes it lacks authority to require the L.A.P.D. to take the actions Plaintiff requests.

And though the scope of declaratory relief is broad, “an actual controversy that is currently active is required for such relief to be issued, and both standing and ripeness are appropriate criteria in that determination. [Citation.]” (D. Cummins Corp. v. United States Fid. & Guar. Co. (2016) 246 Cal. App. 4th 1484, 1489.) “In the context of a demurrer, the court will evaluate ‘whether the factual allegations of the complaint for declaratory relief reveal that an actual controversy exists between the parties. [Citation.]’” (Id.) “[T]rial courts have discretion at the demurrer stage of a dispute to weed out disputes in which a declaration would not be necessary or proper at the time.” (See Osseous Techs. of Am., Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal. App. 4th 357, 372.)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.