Judge: Ronald F. Frank, Case: 22STCV29241, Date: 2023-12-04 Tentative Ruling

Case Number: 22STCV29241    Hearing Date: February 28, 2024    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                    February 28, 2024 

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CASE NUMBER:                      22STCV29241

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CASE NAME:                           Daniel Luna v. Los Angeles Rams, et al.

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MOVING PARTY:                   Defendant, County of Los Angeles

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RESPONDING PARTY:        Plaintiffs, Daniel Luna and Irena Sulencka

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TRIAL DATE:                           December 16, 2024

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MOTION:¿                                  (1) Demurrer¿ 

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Tentative Rulings:                     (1) County’s Demurrer is SUSTAINED, without leave to amend

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I. BACKGROUND¿¿ 

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A. Factual¿¿ 

On September 8, 2022, Plaintiffs, Daniel Luna and Irena Sulencka (collectively, “Plaintiffs”) filed a Complaint against Defendants, Los Angeles Rams, Hollywood Park Management Co. II, LLC, KSE Sportsman Media, Inc., Stockbridge Capital Group, LLC, Apex Security Group, Inc., Bryan Alexis Cifuentes, and DOES 1 through 100. On May 12, 2023, Plaintiffs filed a First Amended Complaint. On  October 2, 2023, Plaintiffs filed a Second Amended Complaint. On December 22, 2023, Plaintiffs filed a Third Amended Complaint (“TAC”) alleging causes of action for: (1) Negligence; (2) Premises Liability; (3) Assault; (4) Battery; (5) Loss of Consortium; (6) Public Employee Negligence; and (7) Mandatory Duty pursuant to Gov. Code § 815.6.

Originally, Defendant, County of Los Angeles filed a Demurrer to Plaintiffs’ Second Amended Complain. However, on January 19, 2024, this Court notes that the parties stipulated that the demurrer to the SAC would be deemed to be made as the demurrer to the TAC.

B. Procedural¿¿ 

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            On December 4, 2023, Defendant, County of Los Angeles, filed a Demurrer. On January 5, 2024, Plaintiffs filed opposition. On January 11, 2024, Defendant filed a reply brief.

II. REQUEST FOR JUDICIAL NOTICE

            Along with County of Los Angeles’s Demurrer, it requests this Court take Judicial Notice of the following documents:

1.     Mr. Luna’s prelitigation government claim that his attorneys of record, Arns Davis Law f/k/a the Arns Law Firm, submitted to the County on or about August 19, 2021; (Exhibit 1); and

2.     Ms. Sulencka’s prelitigation government claim that her attorneys of record, Arns Davis Law f/k/a the Arns Law Firm, submitted to the County on or about August 19, 2021 (Exhibit 2.)

This Court GRANTS this request and takes judicial notice of the above documents.

Additionally, along with Plaintiffs’ opposition, they request this Court take judicial notice of the following:

1.     Mr. Luna’s government claim submitted to the County on or around August 19, 2022. (Exhibit 1)

The Court GRANTS this request and takes judicial notice of above.

III. ANALYSIS¿ 

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A.    Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿ 

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A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿

B.    Discussion

Defendant, County of Los Angeles (“County”), demurs to the TAC on the grounds it argues all causes of action against it, (Fifth, Sixth, and Seventh) fail to state facts sufficient to constitute a cause of action because the County cannot be liable for not detaining Mr. Luna, it did not owe a duty to Mr. Luna, it cannot be liable for enforcing laws, and cannot be liable for not approving sufficient police protection services. Specifically, Defendant, County bases its argument on the Government Claims Act.

Employee Negligence

            First, County argues that Plaintiffs’ Sixth Cause of Action for Employee Negligence fails because the County is not liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody. (Gov. Code, § 846.) In Plaintiffs’ opposition, they do not disagree that this cause of action is subject to the Government Claims Act, but argue that it falls under Government Code § 815.2, § 820, which notes that a public entity can be liable for their employee’s torts. While this is true about these specific Code sections, such an argument has been struck down by many Courts.

For example, County cites to Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 592-593, where the Court thee considered a cause of action brought under Government Code Sections 845, 846, 818.2, and 821, and concluded the statutory scheme employed makes it clear that failure to provide adequate police protection will not result in government liability, nor will a public entity be liable for failure to arrest a person who is violating the law. The statutory scheme indicates the legislature’s intent to immunize the police function from tort liability, from the inception of its exercise to the point of arrest, regardless of whether the action be labeled ‘discretionary’ or ‘ministerial.’ (Antique Arts Corp., supra, 39 Cal.App.3d at 952-53.) However, the California Supreme Court in Williams v. State of California (1983) 34 Cal.3d 18, noted that Antique Arts Corp, among other cases overlooked the logical sequence of inquiry in dicta, where they placed the immunity cart before the duty horse. (Williams, supra, 34 Cal.3d at 22.) The Supreme Court further pointed out that this fallacy was later exposed in Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 689, where the Court of Appeal there arrayed the subjects of the inquiry in proper order: ‘The parties assume that if we conclude the alleged facts established as a matter of law the existence of a “special relationship” (a relationship giving rise to the county’s duty to act prudently, and appellants’ justifiable reliance thereon) we will obviate the need to consider whether respondents are immune from liability under sovereign immunity principles. Implicit in this exception theory is the assumption the “special relationship” creates an affirmative governmental responsibility which when breached gives rise to governmental liability notwithstanding the discretionary (immunized) character of the tortious act. (Witcombe, supra, 73 Cal.App.3d at 706.) The Witcombe Court disagreed, correctly stating (as deemed by the California Supreme Court) that the question of “duty” is only a threshold issue, beyond which remain the immunity barriers. (Ibid.)

As such, just as the California Supreme Court did in Williams, this Court turns first to the initial question of duty under general principles of tort law. Namely, an individual has no duty to come to the aid of another. One who has not created such a peril being suffered by Plaintiff cannot be found liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to an affirmative duty to act. (Williams, supra, 34 Cal.3d at 23.) Another theory relevant to our discussion is that of “good Samaritan” laws, those who volunteer, without having an initial duty to do so, but nonetheless comes to the aid of another. A good Samaritan has a duty to exercise due care in performance and is only liable if (1) their failure to exercise said care increases the risk of such harm, or (2) the harm is suffered because of the other’s reliance upon the undertaking (Rest. 2d Torts, § 323.)

The Williams Court noted that it is settled that the rules concerning the duty – or lack thereof – to come to the aid of another are applicable to law enforcement personnel in carrying out routine traffic investigations. Thus, the Court noted the state highway patrol has the right, but not the duty, to investigate accidents (Veh. Code, § 2412; McCarthy v. Frost (1973) 33 Cal.App.3d 872, 876.), or to come to the aid of stranded motorists (Mann v. State of California (1977) 70 Cal.App.3d 773, 778.) (Williams, supra, 34 Cal.3d at 24.) Despite this, while “no special relationship may exist between members of the California Highway Patrol and the motoring public generally, or between the Patrol and stranded motorists generally” (Mann, supra, 70 Cal.App.3d at 780), “when the state, through its agents, voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person or organization. (Williams, supra, 34 Cal.3d at 24.)

For example, this Court notes that in McCorkle v. Los Angeles (1969) 70 Cal.2d 252, a breach of duty was held to potentially be an affirmative act when it placed a person in peril or increased the risk of harm. In McCorkle, an officer that was investigating an accident directed the plaintiff there to follow him into the middle of an intersection, where that plaintiff was subsequently hit by another car. Another example is in the case of Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, where the court recognized that negligence may also be an omission or failure to act. In Morgan, a deputy sheriff made a promise to warn an individual, who subsequently was murdered, if a prisoner that had made threats on her life, was released. The Morgan Court found that the county was liable when the sheriff failed to warn.

The California Supreme Court in Williams clarified that the above analysis was not to be interpreted to mean that a promise and reliance thereon are indispensable elements of a special relationship, noting that such a special relationship has also been found where the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection. In Mann, a highway patrolmen, coming to the aid of a stranded motorist, placed their car with flashing lights behind two cars stalled on the freeway. After calling for a tow truck, the officers withdrew without warning, did not wait for the tow truck to line up behind the stalled car or provide alternative protection with flares. Minutes after their departure, the stalled car was sideswiped by a passing car and the persons nearby were injured. The Mann Court found that the officers’ conduct contributed to, increased, and changed the risk which would have otherwise existed. The Court noted that they stopped to investigate and took affirmative steps to provide assistance, lulling the injured parties into a false sense of security and perhaps preventing other assistance from being sought.

Turning now to the facts of Williams. there, the Supreme Court noted that Plaintiff’s complaint alleged that an unnamed agent of the state “arrived within minutes of the accident and assumed the responsibility of investigating the accident.” (Williams, supra, 34 Cal.3d at 27.) The Supreme Court found that the alleged negligence was nonfeasance – failure to test for the heat of the object which struck her, failure to secure identification of witnesses, and failure to attempt investigation or pursuit of the owner or occupant of the truck whose brake drum had caused her injuries. (Ibid.) The Williams Court noted that the plaintiff’s complaint did not include any allegations that the officers assured her, either expressly or impliedly, that they would do any of the acts she faults them for not doing, no allegations that they conducted themselves in such a manner as to warrant reliance upon them to do the acts which plaintiff alleges they should have done nor, were there any allegations that they prevented plaintiff from conducting an investigation of her own. Based on this, the Williams Court concluded that plaintiff had not stated a cause of action in that she failed to establish a duty of care owed by the defendant state. The Williams Court reasoned that the officers did not create the peril in which plaintiff found herself; they took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed; there was no indication that they voluntarily assumed any responsibility to protect plaintiff’s prospects of recovery by civil litigation; and there were no allegations of the requisite factors to a finding of a special relationship, namely detrimental reliance by the plaintiff on the officers’ conduct, statements made by them which induced a false sense of security and thereby worsened her position.

Now, using the analysis of the lower court cases cited in Williams, and the Williams decision itself, Plaintiffs have failed to allege a duty of care owed via a special relationship between County and/or its employees. Here, the sheriff’s department did not create the peril in which plaintiff found himself. Plaintiff alleges that he was already inebriated when he was detained initially. (TAC, ¶ 93.) The sheriffs took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed. Plaintiff suggests that when the sheriffs detained him initially (for allegedly attempting to enter the game without a ticket), he was already intoxicated, and that sheriffs should have performed an investigation to determine whether or not he was intoxicated in public, and should have moved him to a place of relative safety. (FAC, ¶ 85-87 93.) This allegation is certainly not an affirmative action taken by officers. Instead, it is an allegation of omission. There is no allegation that sheriffs assumed any responsibility to protect plaintiff’s prospects of recovery by civil litigation, and there are no allegations of detrimental reliance by the officers’ conduct, statements made by the sheriffs which induced a false sense of security and thereby worsened Plaintiff Daniel Luna’s position. Instead, the Complaint indicates that once Daniel Luna realized that he would not get into the game, and after he had already been detained by the sheriffs, he joined a tailgate and continued drinking. This indicates to this Court, as indicated to the California Supreme Court in Williams, that Plaintiffs have failed to establish a duty of care through a special relationship between the parties.

This combined with the fact that Government Code § 846 clearly states: “Neither a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody,” leads this Court to SUSTAIN demurrer as to the Sixth Cause of Action for Mandatory Duty pursuant to Government Code § 815.6.

As this is already Plaintiffs’ fourth bite at the apple, the Court’s tentative ruling is to sustain without leave to amend.

Violation of Mandatory Duty

            Next, Defendant County argues that Plaintiffs’ Seventh Cause of Action for Mandatory Duty Premises Liability is barred by immunities. County asserts that Plaintiffs incorrectly contend that it owed a mandatory duty to Daniel Luna under Government Code § 26602 and Penal Code § 647. County argues that neither Government Code § 26602 nor Penal Code § 647 can serve the basis for any claim against the County.

            Government Code § 818.2 states that “[a] public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” Here, Plaintiffs’ cause of action for Mandatory Duty alleges that pursuant to Government Code § 26602, the Los Angeles County Sheriff’s Department had a mandatory duty to prevent and suppress any affrays, breaches of the peace, riots, and insurrections that come to his or her knowledge, and to investigate public offenses which have been committed. (TAC, ¶ 92.) Plaintiff based this argument on the fact that Plaintiffs claim Daniel Luna was clearly intoxicated in a public location and thus in violation of Penal Code § 647(f). Plaintiffs argue that sheriffs failed to perform their mandatory duty under Penal Code § 647(g), which states that when a peace officer discovers an individual intoxicated in public, and is reasonably able to do so, that they shall place the person, or cause the person to be placed, in civil protective custody.

Here, County cites, in its reply brief, to Stout v. City of Porterville, which is instructive on the case at bar. There, a police officer stopped a Plaintiff while walking on a major street in the early hours of the morning. (Stout v. City of Porterville (1983) 148 Cal.App.3d 937.) The plaintiff in Stout sued the city when the officer allowed him to leave and he was subsequently struck by a vehicle and injured. The plaintiff alleged that the officer and city was liable for his injuries because the officer failed to arrest him and take him to a facility described in Penal Code § 647(g) – as the Plaintiffs allege in the case at bar. The trial court there sustained the City’s demurrer without leave to amend. (Id. at 940-41.) The Court of Appeal in Stout affirmed, and noted case law had interpreted other statutes’ use of “shall” as directory rather than mandatory and there was no “simple, mechanical test for determining” its meaning (Id.at 947.) The Court there held that subdivision (g) did not require the police take a “public inebriate” into custody, and instead, simply gave officers the option to offer treatment to an arrestee, rather than to prosecute him (Id. at 946-47.) The Court added that if section 647(g) created a mandatory duty of some kind, that duty was solely “to…make a reasonable decision concerning the appropriate disposition of a lawfully arrested drunk.” (Id. at 947.) Here, the allegations alleged are almost the exact same as those alleged in Stout. Because Plaintiffs’ Seventh Cause of Action is based on the falsely identified “mandatory” duty imposed by Penal Code § 647(g), which has already been identified by Courts as not a mandatory duty, the Court SUSTAINS the County’s demurrer.

As with the Sixth Cause of Action, this Court is inclined to sustain without leave to amend.

Fifth Cause of Action – Loss of Consortium

            Lastly, the County demurs to the Fifth Cause of Action for Loss of Consortium on the grounds that Plaintiffs’ claims fail for the same reasons the sixth and seventh did. The Court agrees. Because the demurrer has been sustained as to the sixth and seventh causes of action (the only causes of action against County besides this fifth cause of action), Plaintiffs have failed to establish liability on the part of County. Thus, the demurrer to the fifth cause of action is SUSTAINED.  The Court is inclined to sustain without leave to amend.

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