Judge: Robert B. Broadbelt, Case: 21STCV07736, Date: 2023-01-31 Tentative Ruling
Case Number: 21STCV07736 Hearing Date: January 31, 2023 Dept: 53
Superior Court of California
County of Los Angeles – Central District
Department
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21STCV07736 |
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Hearing
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January
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[Tentative]
Order RE: (1)
demurrer
to second amended complaint (2)
motion
to strike portions of second amended complaint |
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MOVING PARTIES:
Defendants County of Los
Angeles and Jonathan E. Sherin, M.D.
RESPONDING PARTY: Plaintiff Rachel Schmeidler
(1)
Demurrer
to Second Amended Complaint
MOVING PARTIES:
Defendants County of Los
Angeles and Jonathan E. Sherin, M.D.
RESPONDING PARTY: Unopposed
(2)
Motion to Strike Portions of Second
Amended Complaint
The court considered the moving, opposition, and reply papers filed in
connection with the demurrer. The court
considered the moving papers filed in connection with the motion to
strike. No opposition papers were filed
as to the motion to strike.
BACKGROUND
Plaintiff Rachel Schmeidler (“Plaintiff”) filed the operative Second
Amended Complaint in this action against defendants County of Los Angeles
(“County”) and Jonathan E. Sherin, M.D., Ph.D. (“Sherin”) (collectively,
“Defendants”) on June 27, 2022. Plaintiff’s
Second Amended Complaint alleges three causes of action for (1) injunctive
relief, (2) libel, and (3) intentional infliction of emotional distress.
Defendants now move the court for an order (1) sustaining their
demurrer to each cause of action alleged in Plaintiff’s Second Amended
Complaint, and (2) striking Plaintiff’s request for punitive damages and all
related allegations.
DEMURRER
The court sustains Defendants’ demurrer to Plaintiff’s first cause of
action for injunctive relief because it does not state facts sufficient to
constitute a cause of action. (Code Civ.
Proc., § 430.10, subd. (e).)
Plaintiff brings this cause of action against Defendants pursuant to
Code of Civil Procedure section 526a, which “creates a taxpayer private right
of action to restrain the illegal or wasteful expenditure of public
funds.” (Animal Legal Defense Fund v.
California Exposition & State Fairs (2015) 239 Cal.App.4th 1286, 1291;
SAC ¶ 2.) A “taxpayer action must
involve an actual or threatened expenditure of public funds. [Citation.]
[¶] General allegations,
innuendo, and legal conclusions are not sufficient [citation]; rather, the
plaintiff must cite specific facts and reasons for a belief that some illegal
expenditure or injury to the public fisc is occurring or will occur. [Citations.]”
(Humane Society of the United States v. State Bd. of Equalization (2007)
152 Cal.App.4th 349, 355 [internal citations omitted].) Plaintiff bases this cause of action on the
allegation that Defendants “subject[] minors to involuntary civil commitments
even when their parents have provided authorization for ‘voluntary treatment’”
in violation of Welfare and Institutions Code section 5585.50. (SAC ¶¶ 9-10.) However, Plaintiff has not alleged specific facts
establishing that (1) Defendants have not complied, or have a practice of not
complying, with section 5585.50, or (2) public funds are being used illegally,
or that some other injury to the public fisc is occurring or will occur based
on Defendants’ conduct. Thus, the court
finds that Plaintiff has not alleged “specific facts and reasons for a belief
that some illegal expenditure or injury to the public fisc is occurring or will
occur” and therefore has not alleged facts sufficient to constitute a taxpayer
action against Defendants. (Humane
Society of the United States, supra, 152 Cal.App.4th at p.
355.)
The court sustains County’s demurrer to Plaintiff’s second cause of
action for libel because (1) it does not state facts sufficient to constitute a
cause of action since Plaintiff does not allege that the allegedly false
statement was published by defendant County to a person other than Plaintiff, and
Plaintiff alleges only that defendant “County informed” Plaintiff of the
anonymous complaint against her, and (2) Plaintiff exceeded the scope of the
court’s June 10, 2022 order granting Plaintiff leave only to “amend[] the first
cause of action” for injunctive relief, and therefore impermissibly amended
this cause of action to be alleged against defendant County in the Second
Amended Complaint without authorization by the court. (Code Civ. Proc., § 430.10, subd. (e); Kelly
v. General Telephone Co. (1982) 136 Cal.App.3d 278, 284 [“publication
occurs when a statement is communicated to any person other than the party
defamed”]; June 10, 2022 Order, p. 3:1-2; Harris v. Wachovia Mortgage, FSB (2010)
185 Cal.App.4th 1018, 1023 [“Following an order sustaining a demurrer or a
motion for judgment on the pleadings with leave to amend, the plaintiff may
amend his or her complaint only as authorized by the court’s order”].)
The court sustains County’s demurrer to Plaintiff’s third cause of
action for intentional infliction of emotional distress because (1) it does not
state facts sufficient to constitute a cause of action since Plaintiff does not
allege that County’s conduct was “so extreme as to exceed all bounds of that
usually tolerated in a civilized community” and therefore has not alleged the
element of extreme and outrageous conduct, and (2) Plaintiff exceeded the scope
of the court’s June 10, 2022 order granting Plaintiff leave to amend her first
cause of action and therefore impermissibly added this cause of action to the
Second Amended Complaint. (Code Civ.
Proc., § 430.10, subd. (e); Hughes v. Pair (2009) 46 Cal.4th 1035,
1050-1051 [internal quotations omitted]; Harris, supra, 185
Cal.App.4th at p. 1023.)
The burden is on the plaintiff “to articulate how it could amend its
pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners
Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that
burden, a plaintiff “must show in what manner he can amend his complaint and
how that amendment will change the legal effect of his pleading.”¿ (Goodman
v. Kennedy (1976) 18 Cal.3d 335, 349.)
The court finds that Plaintiff has not met her burden to show in what
manner she can amend her complaint to render it sufficient. The court therefore sustains Defendants’ demurrer
without leave to amend.
MOTION TO STRIKE
Defendants move the court for an order striking from the Second
Amended Complaint Plaintiff’s request for punitive damages and related
allegations. (SAC ¶¶ 15-16; SAC
Prayer, ¶ 2.)
The court has sustained Defendants’ demurrer without leave to amend,
and therefore denies Defendants’ motion to strike as moot.
The
court sustains defendants County of Los Angeles and Jonathan E. Sherin, M.D.,
Ph.D.’s demurrer to plaintiff Rachel Schmeidler’s Second Amended Complaint
without leave to amend.
The
court denies as moot defendants County of Los Angeles and Jonathan E. Sherin,
M.D., Ph.D.’s motion to strike.
The
court orders defendants County of Los Angeles and Jonathan E. Sherin, M.D.,
Ph.D. to lodge and serve a proposed order of dismissal from the Second Amended
Complaint filed by plaintiff Rachel Schmeidler within 10 days of the date of
this order pursuant to Code of Civil Procedure section 581, subdivision (f)(1).
The court orders defendants County of Los
Angeles and Jonathan E. Sherin, M.D., Ph.D. to give notice of this ruling.
IT IS SO ORDERED.
DATED:
_____________________________
Robert
B. Broadbelt III
Judge
of the Superior Court