Judge Teresa A. Beaudet, Case Number: 22STCV33580, Date: 2024-03-01 Tentative Ruling

Plaintiff Carolyn Tracie Love, individually and as trustee for Trashawn Tillett (“Plaintiff”) filed this action on October 14, 2022 against Defendants Los Angeles County, Department of the Coroner; Los Angeles City; Los Angeles Police Department; and Los Angeles Fire Department.

On May 23, 2023, Defendant City of Los Angeles filed a notice of removal of the action to federal court.

On November 15, 2023, the United States District Court, Central District of California issued an “Order Granting in Part Defendants’ Motions to Dismiss [DKT Nos. 70, 71] And Remanding Case” in the matter Carolyn Tracie Love v. Los Angeles County, et al., Case No. 2:23-cv-03851-SB-PVC (herein, the “Federal Action”). The November 15, 2023 Order in the Federal Action provides, inter alia, as follows:

“After Defendants moved to dismiss her Second Amended Complaint (SAC), Plaintiff, now proceeding pro se, filed an untimely Third Amended Complaint (TAC) nearly two weeks after her opposition deadline had passed. Dkt. No. 65. The TAC significantly expands on her earlier pleadings, spanning 68 pages and alleging 24 causes of action…including 13 federal claims. Id. The Court allowed the filing of the TAC and denied as moot the motions to dismiss the SAC. Dkt. No. 67. The City and County now move to dismiss Plaintiff’s TAC for failure to state a claim. Dkt. Nos. 70, 71. The Court finds this matter suitable for decision without oral argument and vacates the December 1, 2023 motion hearing. Fed. R. Civ. P. 78; L.R. 7-15. Because Plaintiff has not alleged any plausible federal claims, the Court dismisses her federal causes of action and remands the remaining claims to state court.” (November 15, 2023 Order, p. 2.)

The November 15, 2023 Order in the Federal Action concludes that “[a]ccordingly, the Court GRANTS IN PART Defendants’ motions to dismiss, and Plaintiff’s federal claims in Counts 7, 11, 14, and 16-25 are DISMISSED on the merits with prejudice. The Court does not reach the rest of Defendants’ arguments, but instead declines to exercise supplemental jurisdiction over Plaintiff’s remaining state-law claims. The case is therefore REMANDED to the state court from which it was removed.” (November 15, 2023 Order, p. 8.)

On November 20, 2023, a notice from the United States District Court, Central District of California was filed in this action indicating, inter alia, that “[p]ursuant to this Court’s ORDER OF REMAND issued on 11/15/2023, the above-referenced case is hereby remanded to your jurisdiction.”

Defendants County of Los Angeles (the “County”) and City of Los Angeles (the “City”) indicate that Plaintiff filed the subject Third Amended Complaint for Damages (“TAC”) in the Federal Action on September 28, 2023. (County’s RJN, ¶ 1, Ex. A; Hunter Decl., ¶ 3, Ex. A.) The TAC alleges twenty-five causes of action. (Ibid.)

The County now demurs to the third, fifth, sixth, eighth, ninth, and tenth causes of action of the TAC. The County’s demurrer is unopposed. In addition, the City now demurs to the first, second, third, fifth, sixth, eighth, ninth, tenth, twelfth, thirteenth, and fifteenth causes of action of the TAC. The City’s demurrer is unopposed.

The Court grants the County’s request for judicial notice filed in support of the County’s demurrer.

In the TAC, Plaintiff alleges, inter alia, that on October 20, 2021, Plaintiff arrived at the home of her son, Trashawn Alton Tillet (herein, the “Decedent”). (See County’s RJN, ¶ 1, Ex. A, TAC, ¶ 1.) Plaintiff alleges that the Decedent’s eyes were closed and that he did not respond to his name. (TAC, ¶ 8.) Plaintiff alleges the Decedent had contusions on “the right-side temple above his ear…” (TAC, ¶ 10.) Plaintiff alleges that “[m]ultiple bottles of alcohol were everywhere in his living room as if there had been a party,” and that “Plaintiff believes that the alcohol bottles were staged and planted by a violent perpetrator to district attention from a crime and crime scene.” (Compl., ¶¶ 5, 14.)

Plaintiff alleges that paramedics arrived at the apartment. (TAC, p. 11:5.) Plaintiff alleges that she “never observed either paramedic deploy life saving measures.” (TAC, ¶ 48.) Plaintiff further alleges that one paramedic said, “sorry he been dead for maybe a few days.” (TAC, ¶ 56.) Plaintiff further alleges, inter alia, that “LAPD officers…never thoroughly investigated…whether [the Decedent] was the victim of a homicide[].” (TAC, ¶ 185.)

In addition, Plaintiff alleges that “there is substantial evidence that the coroner mixed up the findings of a different deceased.” (TAC, ¶ 322.) Plaintiff further alleges that “[it] appears that [the Decedent’s] body may have been cremated. Upon information and belief, the coroner gave the funeral possession of the wrong body.” (TAC, ¶ 386.)

As an initial matter, the County asserts that the TAC is subject to demurrer on the ground that it is uncertain. 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¿.)¿¿

The County asserts that “[h]ere, it is not clear exactly from the TAC which of the remaining eleven causes of action are being asserted against which defendants…Indeed, while some of the causes of action identify in their heading certain specific defendants, several of the other causes of action do not provide this basic information.” (Demurrer at pp. 13:28-14:4.)

However, as set forth above, the County demurs to the third, fifth, sixth, eighth, ninth, and tenth causes of action of the TAC.[1] The TAC alleges that the third and fifth causes of action are alleged against, inter alia, “County of Los Angeles.” (TAC, pp. 51:10-11; 52:7.) In addition, the TAC alleges that the sixth, eighth, ninth, and tenth causes of action are alleged against “all Defendants.” (TAC, pp. 53:10; 55:12-13; 56:16; 57:3-4.) Thus, the Court does not find that the causes of action that are the subject of the County’s demurrer are so ambiguous that the County cannot determine whether such causes of action are being asserted against it.

In addition, the County asserts that “the TAC also refers both to the County and the ‘Department of Coroner,’ but does not specify clearly whether the Department of Medical Examiner-Coroner is being separately sued.” (Demurrer at p. 14:7-8.) The Court agrees, as the caption page of the TAC lists, inter alia, “Los Angeles County, Department of the Coroner.” (County’s RJN, ¶ 1, Ex. A, p. 5.) Accordingly, the Court sustains the County’s demurrer on the grounds of uncertainty as to the third, fifth, sixth, eighth, ninth, and tenth causes of action of the TAC against the “Department of the Coroner,” to the extent these causes of action are alleged against any purported separate entity named “Department of the Coroner.”

C. Third, Fifth, Sixth, Eighth, Ninth, and Tenth Causes of Action as to Plaintiff’s Claims on Behalf of the Decedent

Next, the County asserts that “the claims that Plaintiff is asserting (presumably) on behalf of Decedent fail because there are no allegations against the County relating to conduct occurring before Decedent’s death, and Plaintiff, proceeding in pro se, cannot represent the Decedent.” (Demurrer at p. 15:5-8.)

In the TAC, Plaintiff alleges that “Plaintiff CAROLYN TRACIE LOVE, an individual, and on behalf of TRASHAWN ALTON TILLETT, her deceased son by and her [sic] attorney alleges as follows against Defendants Los Angeles County Coroner’s, Los Angeles City Fire Dept, Los Angeles City Police Dept does 1 to 10.” (TAC, p. 5.) In addition, the caption page of the TAC states that the Plaintiff is “CAROLYN TRACIE LOVE, individually and [a]s trustee for Trashawn Tillett.” (Ibid.)

The County cites to People v. Runyan (2012) 54 Cal.4th 849, 861-862, where the California Supreme Court noted that “[n]o civil claim can be asserted, on a decedent’s personal behalf, for injury or damage to the decedent that occurs, or accrues, after the decedent has died. The governing statutes recognize two, and only two, mutually exclusive types of actions that may be brought, or maintained, in consequence of a person’s death. First, a cause of action in favor of a person survives the person’s death, and may be commenced, or continued, by the decedent’s personal representative, or, if none, by the decedent’s successor in interest. However, the damages recoverable in such an action are limited to the loss or damage that the decedent sustained or incurred before death…” (Internal quotations and citations omitted.)

The County asserts that “[h]ere, the factual basis of the County’s wrongdoing, as alleged in the TAC, relates solely to conduct occurring after Decedent’s death – namely, the purported negligent investigation of Decedent’s cause of death and the mishandling of his remains…” (Demurrer at p. 15:13-17, emphasis omitted, citing County’s RJN, ¶ 1, Ex. A, ¶¶ 196-208.) The County asserts that “[b]ecause there are no allegations against the County relating to conduct occurring before Decedent’s death, no claim accrued as to Decedent against the County before his death and each of the claims asserted on his behalf as to the County are properly dismissed.” (Demurrer at p. 15:21-24, emphasis omitted.) Plaintiff does not oppose the County’s demurrer, and thus does not dispute this point.

The County also asserts that “Plaintiff, who is not an attorney, cannot represent the interests of Decedent’s estate proceeding pro se.” (Demurrer at p. 16:3-4.) The caption page of the TAC lists “Carolyn Tracie Love” above “Attorneys for CAROLYN TRACIE LOVE (pro per) Individually and as trustee for Trashawn Tillet.” (County’s RJN, ¶ 1, Ex. A, p. 5, emphasis added.) In addition, as discussed, the “Plaintiff” named on the caption page of the TAC is “CAROLYN TRACIE LOVE, individually and [a]s trustee for Trashawn Tillet.” (Ibid.)

The County cites to Hansen v. Hansen (2003) 114 Cal.App.4th 618, 621, where the Court of Appeal noted that “[a] person who is unlicensed to practice law and who represents a decedent’s estate cannot appear in propria persona on behalf of the estate in matters outside the probate proceedings. Since the passage of the State Bar Act in 1927, persons may represent their own interests in legal proceedings, but may not represent the interests of another unless they are active members of the State Bar.” (Internal citations omitted.) Accordingly, in light of the foregoing, the Court sustains the County’s demurrer to the third, fifth, sixth, eighth, ninth, and tenth causes of action of the TAC, to the extent these causes of action are alleged by Plaintiff on behalf of the Decedent.

Next, the County asserts that “Plaintiff’s third, fifth, and eighth causes of action fail to plead the requisite statutory provision imposing a mandatory duty on the County for liability under Government Code § 815.6.” (Demurrer at p. 16:6-8.) Plaintiff’s third cause of action is for “negligent investigation and failure to render aid,” the fifth cause of action is for “negligent hiring,” and the eighth cause of action is for “intentional and negligent infliction of emotional distress.”

The County notes that “‘[a] public entity is not liable for an injury,’ ‘[e]xcept as otherwise provided by statute.’ (Gov. Code, § 815.)…In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care…” ((Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) In Plaintiff’s third and fifth causes of action, she alleges that “Defendants owed her a duty pursuant to Government Code section 815.6…” (TAC, ¶¶ 398, 401.) In the eighth cause of action, Plaintiff alleges that “Defendant Los Angeles Coroner’s Department owed her a duty pursuant to Government Code section 815.6…” (TAC, ¶ 419.)

Government Code section 815.6 provides that “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” The County notes that “[a] plaintiff seeking to hold a public entity liable under Government Code section 815.6 must specifically identify the statute or regulation alleged to create a mandatory duty.” ((In re Groundwater Cases (2007) 154 Cal.App.4th 659, 689.) As noted by the County, Plaintiff’s third, fifth, and eighth causes of action do not appear to identify any specific statute, enactment, or provision that Plaintiff claims imposed a mandatory duty on the County.

In light of the foregoing, the Court sustains the County’s demurrer to the third, fifth, and eighth causes of action of the TAC.

The sixth cause of action of the TAC is for “violation of California Constitutional rights.”

This cause of action alleges that “Defendants’ actions violated, and continue to violate, Plaintiff’s rights under Article I, Sections 1, 2, 3, 7, 13 and 15 of the California Constitution.” (TAC, ¶ 408.) Plaintiff alleges that Defendants “violate[d] her due process right to a governmental investigation,” “violate[d] her due process right to an unbiased governmental investigation,” and “violate[d] her equal protection and/or due process right not to be singled out for irrational and/or arbitrary discriminatory treatment.” (TAC, ¶ 407.)

First, the County cites to authority supporting its assertion that Sections 1, 2, and 7 of Article I of the California Constitution do not provide for a private right of action for damages. Plaintiff cites to Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1237, footnote 6, where the Court of Appeal noted that “article I, section 1, of the California Constitution…states: ‘All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.’ Clearly, although safety and happiness are inalienable rights, this provision of the Constitution does not establish the means whereby they may be enjoyed. No case has ever held that this provision enunciating the inalienable right to obtain safety and happiness is self-executing in the sense that it gives rise, in and of itself, to a private right of action for damages or an affirmative duty on the part of the state to take particular steps to guarantee the enjoyment of safety or happiness by all citizens.” The County also cites to Degrassi v. Cook (2002) 29 Cal.4th 333, 342, where the California Supreme Court “conclude[d] that there is no indication in the language of article I, section 2(a), nor any evidence in the history of that provision, from which we may find, within that provision, an implied right to seek damages for a violation of the free speech right set out therein.” In addition, the County cites to Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 324, where the California Supreme Court “conclude[d] that there is no indication in the language of article I, section 7(a), nor any evidence in the history of that section, from which we may find, within that provision, an implied right to seek damages for a violation of the due process liberty interest.” As discussed, Plaintiff does not oppose the County’s demurrer and thus does not address this legal authority.

As to Article I, Sections 3, 13 and 15, the County asserts that “[n]one of these provisions of the California Constitution provide Plaintiff a ‘due process’ right to a ‘governmental investigation’ by the County’s DMEC as to the cause of Decedent’s death.” (Demurrer at p. 18:17-19.) Indeed, as noted by the County, Section 3 concerns “[a]ssembly, petition, open meetings,” Section 13 concerns “search and seizure,” and Section 15 concerns “safeguards in criminal prosecutions.” ((Cal. Const., art. I, § 3); (Cal. Const., art. I, § 13); (Cal. Const., art. I, § 15.) Thus, the Court does not see how these provisions are relevant to Plaintiffs claims in the TAC.

The County also asserts that “[n]or has Plaintiff alleged any facts to support her allegation that she was ‘singled out for irrational and/or arbitrary discriminatory treatment’ by the County.” (Demurrer at p. 18:19-21; see TAC, ¶ 407.) Plaintiff does not oppose the demurrer and thus does not address this point.

In light of the foregoing, the Court sustains the County’s demurrer to the sixth cause of action of the TAC.

As noted by the County, the ninth cause of action of the TAC is untitled, but alleges that “Plaintiff, as DECEDENT’S successor in interest, seek [sic] all damages accruing to DECEDENT in a survival action, pursuant to Code of Civil Procedure section 377.34.” (TAC, ¶ 425.) The County asserts that “there are no recoverable damages on behalf of Decedent against the County given that he was already deceased when the County’s DMEC responded.” (Demurrer at p. 20:26-17.) As noted by the County, Code of Civil Procedure section 377.34, subdivision (a) provides that “[i]n an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” Plaintiff does not oppose the demurrer and thus does not address this point.

Based on the foregoing, the Court sustains the County’s demurrer to the ninth cause of action of the TAC.

Plaintiff’s tenth cause of action is for “constructive fraud – intentional misrepresentation – concealment.” In the tenth cause of action, Plaintiff alleges, inter alia, that “Defendants…intentionally misrepresented the status of decedents medical exam and the location of his remains…” (TAC, ¶ 427.) The County asserts that the tenth cause of action fails because “Plaintiff fails to identify any statutory basis for imposing direct liability as to the County for this claim.” (Demurrer at p. 20:26-27.) As discussed, pursuant to Government Code section 815, “[e]xcept as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person…” Indeed, the tenth cause of action does not allege any statutory basis for imposing liability on the County as to this cause of action.

In light of the foregoing, the Court sustains the County’s demurrer to the tenth cause of action of the TAC.

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, supra, 39 Cal.3d at p. 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., supra, 53 Cal.4th at p. 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., supra, 2 Cal.4th at pp. 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 713.)

B. First, Second, Third, Fifth, Sixth, Eighth, Ninth, Tenth, Twelfth, Thirteenth, and Fifteenth Causes of Action as to Plaintiff’s Claims on Behalf of the Decedent

As set forth above, the City demurs to the first, second, third, fifth, sixth, eighth, ninth, tenth, twelfth, thirteenth, and fifteenth causes of action of Plaintiff’s TAC.

The City asserts that Plaintiff cannot assert any claims or seek any damages on behalf of the Decedent, as Plaintiff’s “alleged status as a trustee does not alter the fact that Plaintiff is prohibited from bringing these claims as a pro per.” (Demurrer at p. 7:9-10.) In addition, as to the ninth cause of action specifically, the City asserts that “[t]he Ninth Cause of Action is untitled and appears to allege a variety of damages to [the Decedent]. This cause of action is essentially a survival action, which is a claim personal to [the Decedent] and not to Plaintiff.” (Demurrer at p. 6:13-15.)[2] As discussed, “[a] person who is unlicensed to practice law and who represents a decedent’s estate cannot appear in propria persona on behalf of the estate in matters outside the probate proceedings. Since the passage of the State Bar Act in 1927, persons may represent their own interests in legal proceedings, but may not represent the interests of another unless they are active members of the State Bar.” (Hansen v. Hansen, supra, 114 Cal.App.4th at p. 621 [internal citations omitted].)

In light of the foregoing, the Court sustains the City’s demurrer to the first, second, third, fifth, sixth, eighth, ninth, tenth, twelfth, thirteenth, and fifteenth causes of action of the TAC, to the extent these causes of action are alleged by Plaintiff on behalf of the Decedent. The Court also sustains the City’s demurrer to Plaintiff’s ninth cause of action to the extent this cause of action is purportedly brought in Plaintiff’s individual capacity.

C. First, Second, Third, Fifth, Sixth, Eighth, Tenth, Twelfth, Thirteenth, and Fifteenth Causes of Action

Next, the City asserts that “[t]he TAC does not allege any statutory authority on which to bring any state law claims against the City, any of its departments or any of its employees.” (Demurrer at p. 8:18-19.) As discussed, “‘[a] public entity is not liable for an injury,’ ‘[e]xcept as otherwise provided by statute.’ (Gov. Code, § 815.)…In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care…” (Eastburn v. Regional Fire Protection Authority, supra, 31 Cal.4th at p. 1183.)

Plaintiff’s tenth cause of action for “constructive fraud-intentional misrepresentation-concealment” alleges that “Defendants…intentionally misrepresented the status of decedents medical exam and the location of his remains…” (TAC, ¶ 427.) However, the tenth cause of action does not appear to allege any statutory basis for imposing liability on the City.

Plaintiff’s first cause of action for failure to conduct a homicide investigation and wellness check, second cause of action for negligent investigation, third cause of action for negligent investigation and failure to render aid, and fifth cause of action for negligent hiring allege that “Plaintiff…contends that Defendants owed her a duty pursuant to Government Code section 815.6…” (TAC, ¶¶ 388, 392, 398, 401.) In addition, Plaintiff’s eighth cause of action for intentional and negligent infliction of emotional distress alleges that “Plaintiff contends that the Defendant Los Angeles Coroner’s Department owed her a duty pursuant to Government Code section 815.6…” (TAC, ¶ 419.) As set forth above, “[a] plaintiff seeking to hold a public entity liable under Government Code section 815.6 must specifically identify the statute or regulation alleged to create a mandatory duty.” (In re Groundwater Cases, supra, 154 Cal.App.4th at p. 689.) Plaintiff’s first, second, third, fifth, and eighth causes of action do not appear to identify any specific statute or regulation purportedly imposing a mandatory duty on the City.

Based on the foregoing, the Court sustains the City’s demurrer to the first, second, third, fifth, eighth, and tenth causes of action of the TAC.

The Court notes that Plaintiff’s sixth cause of action for “violation of California constitution rights” alleges, inter alia, that “Defendants’ actions violated, and continue to violate, Plaintiff’s rights under Article I, Sections 1, 2, 3, 7, 13 and 15 of the California Constitution.” (TAC, ¶ 408.) In addition, Plaintiff’s twelfth cause of action for violation of California’s Unruh Civil Rights Act alleges that “Plaintiffs sought appropriate medical care for [the Decedent], a service Defendants provides to the public,” and that “Defendants conduct [sic] denied, aided, incited a denial of, discriminated, or made a distinction that denied full and equal advantages, privileges, and services to [the Decedent] based upon his sex, and therefore constituted a violation of California Civil Code Section 51(b)…” (TAC, ¶¶ 436, 437.) Plaintiff’s thirteenth cause of action for violation of California’s Unruh Civil Rights Act also alleges that “Defendant’s conduct violated the Unruh Civil Rights Act…” (TAC, ¶ 445.) In addition, Plaintiff’s fifteenth cause of action for violation of Government Code section 11135 alleges that “Defendant’s conduct also denied Carolyn, who is ‘associated with’ [the Decedent] under the meaning of the statute…full and equal access to the services, programs, and activities offered by Defendant in violation of Section 11135.” (TAC, ¶ 457.)

Thus, the Court does not find that the City has shown that the sixth, twelfth, thirteenth, or fifteenth causes of action should be dismissed for failure to allege the statutory authority on which the causes of action are based, to the extent that is what the City is arguing here. In addition, the City does not appear to argue that the fifteenth cause of action should be dismissed on any other basis.[3] Thus, the Court overrules the City’s demurrer to the fifteenth cause of action. Plaintiff’s sixth, twelfth, and thirteenth causes of action are addressed below.

As set forth above, Plaintiff’s sixth cause of action alleges that “Defendants’ actions violated, and continue to violate, Plaintiff’s rights under Article I, Sections 1, 2, 3, 7, 13 and 15 of the California Constitution.” (TAC, ¶ 408.) Plaintiff alleges that Defendants “violate[d] her due process right to a governmental investigation,” “violate[d] her due process right to an unbiased governmental investigation,” and “violate[d] her equal protection and/or due process right not to be singled out for irrational and/or arbitrary discriminatory treatment.” (TAC, ¶ 407)

Article I, Section 1 of the California Constitution provides that “[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Cal. Const, art. I § 1.) The City asserts that “Plaintiff has not pled sufficient facts to support her claim for violation of her state constitutional right to privacy.” (Demurrer at p. 11:15-16.) Plaintiff does not oppose the demurrer and thus does not dispute this point.

In light of the foregoing, the Court sustains the City’s demurrer to the sixth cause of action of the TAC.

The City also asserts that Plaintiff’s “claims based on an alleged violation of California’s Unruh Civil Rights Act, Civil Code §51 et seq…fail as well.” (Demurrer at p. 10:17-18.) As set forth above, Plaintiff’s twelfth cause of action for violation of California’s Unruh Civil Rights Act alleges that “Plaintiffs sought appropriate medical care for [the Decedent], a service Defendants provides [sic] to the public,” and that “Defendants [sic] conduct denied, aided, incited a denial of, discriminated, or made a distinction that denied full and equal advantages, privileges, and services to [the Decedent] based upon his sex, and therefore constituted a violation of California Civil Code Section 51(b)…” (TAC, ¶¶ 436, 437.)

Plaintiff’s thirteenth cause of action for violation of California’s Unruh Civil Rights Act alleges that the Decedent “is a gay black man with HIV which constitutes a disability that limits a major life activity…This disability falls within the purview of the Unruh Civil Rights Act…[sic] sought appropriate medical care, a service Defendants provide[] to the public.” (TAC, ¶ 444.) Plaintiff further alleges that “Defendant’s conduct violated the Unruh Civil Rights Act by denying…[the Decedent’s] rights to full and equal use of the accommodations, advantages, facilities, privileges, or services Defendant’s offers [sic] to patients by denying [the Decedent] adequate care based on his disability.” (TAC, ¶ 445.)

The City asserts that “first responders are afforded immunity under California law.” (Demurrer at p. 10:4-5.) The City cites to Health and Safety Code section 1799.106, subdivision (a), which provides that “[i]n addition to the provisions of Section 1799.104 of this code, Section 2727.5 of the Business and Professions Code, and Section 1714.2 of the Civil Code, and in order to encourage the provision of emergency medical services by firefighters, police officers or other law enforcement officers, EMT-I, EMT-II, EMT-P, or registered nurses, a firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, EMT-P, or registered nurse who renders emergency medical services at the scene of an emergency or during an emergency air or ground ambulance transport shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith. A public agency employing such a firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, EMT-P, or registered nurse shall not be liable for civil damages if the firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, EMT-P, or registered nurse is not liable.” Plaintiff’s twelfth and thirteenth causes of action do not appear to allege that any acts or omissions of the City were performed in a grossly negligent manner or that any acts or omissions of the City were not performed in good faith. In addition, as discussed, the City’s demurrer is unopposed. Thus, Plaintiff does not dispute that her twelfth and thirteenth causes of action fail.

In light of the foregoing, the Court sustains the City’s demurrer to the twelfth and thirteenth causes of action of the TAC.

Based on the foregoing, the Court sustains the County’s demurrer to the third, fifth, sixth, eighth, ninth, and tenth causes of action of the TAC as to the County and the “Department of the Coroner,” with leave to amend.

In addition, based on the foregoing, the Court sustains the City’s demurrer to the first, second, third, fifth, sixth, eighth, ninth, tenth, twelfth, and thirteenth causes of action of the TAC, with leave to amend. The Court overrules the City’s demurrer to the fifteenth cause of action of the TAC.

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, the Court orders the County to file and serve a proposed judgment of dismissal as to the County within 30 days of the date of this order. In addition, if no amended complaint is filed within 20 days of this Order, the City is ordered to file and serve its answer to the TAC within 30 days of the date of this Order.¿¿The County is ordered to give notice of this Order.

[1]The County asserts that “[a]s to the County, Plaintiff asserts the Third, Fifth, Sixth, and Eighth through Tenth Causes of Action only.” (Demurrer at p. 12:1-2.) The County cites to Plaintiff’s opposition to the County’s motion to dismiss Plaintiff’s Third Amended Complaint filed in the Federal Action. (County’s RJN, ¶ 3, Ex. C.) This opposition states, inter alia, that “Causes of Action: 3, 5, 6-10 Belong to both the City and County of Los Angeles,” and that “Causes of Action: 3, 5, 23-25. Belong to the County of Los Angeles and Los Angeles County Coroner.” (County’s RJN, ¶ 3, Ex. C, p. 93.) Plaintiff does not oppose the instant demurrer and thus does not dispute that only the third, fifth, sixth, eighth, ninth, and tenth causes of action of the TAC are asserted against the County.

[2]As set forth above, the ninth cause of action of the TAC is untitled, but alleges that “Plaintiff, as DECEDENT’S successor in interest, seek [sic] all damages accruing to DECEDENT in a survival action, pursuant to Code of Civil Procedure section 377.34.” (TAC, ¶ 425.)

[3]The City generally contends that “Plaintiff’s claims arise from an alleged failure to conduct a homicide investigation, and as such, they…should be dismissed…” (Demurrer at p. 7:16-18.) However, the City does not provide any argument as to how the fifteenth cause of action “arise[s] from an alleged failure to conduct a homicide investigation,” to the extent that is what the City contends.

Superior Court of California

County of Los Angeles

Department 50