Judge: Thomas D. Long, Case: 20STCV29211, Date: 2023-02-21 Tentative Ruling

Case Number: 20STCV29211    Hearing Date: February 21, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On September 30, 2022, Plaintiffs Ryan Greenup and Gilbert Torres filed a third amended complaint (“TAC”) against Defendant County of Los Angeles.

On October 31, 2022, Defendant filed a demurrer to the TAC.

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, accepting the alleged facts as true.  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

Defendant demurs to Torres’s eighth cause of action for due process violations under 42 U.S.C. Section 1983, the Fourteenth Amendment to the United States Constitution, and Article 1 Section 7 of the California Constitution.  Plaintiffs allege that Torres filed a government tort claim alleging discrimination, retaliation, violation of his right to privacy, and violation of the Fire Fighters’ Bill of Rights (“FIBOR”).  (TAC ¶ 78.)  In retaliation for Torres filing this government claim, Defendant served a notice of intent to discipline.  (TAC ¶ 80.)  Torres received a pre-disciplinary Skelly hearing, but Defendant conspired to violate Torres’s due process rights by not responding to his inquiries for six months and not releasing a result of the Skelly hearing.  (TAC ¶¶ 80-82.)  Plaintiffs allege that Defendant is withholding the favorable results “in retaliation for Plaintiff’s lawsuit under FEHA and FIBOR, and in order to attempt to gain an unfair advantage in the legal proceeding.”  (TAC ¶ 82.)

Defendant argues that the Skelly right arises only under state law, and there is no basis for a federal claim under 42 U.S.C. Section 1983.  (Demurrer at p. 3.)  Defendant also argues that Plaintiffs do not identify a “statute, ordinance, regulation, custom, or usage” under which it acted, as required for a Section 1983 claim.  (Demurrer at p. 5.)  Relying on unpublished federal decisions, Defendant further argues that “there is no requirement under the U.S. Constitution that a hearing report be rendered within a set amount of time.”  (Demurrer at p. 5.)  The California Supreme Court in Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 217, considered whether the procedures denied the petitioner of due process of law under both the United States Constitution and the California Constitution.  Moreover, this cause of action is also brought under the California Constitution.  While focusing on federal rights and requirements, Defendant ignores the state law basis for this cause of action.  The demurrer is overruled on these grounds.

Similarly, Defendant argues that Plaintiffs do not and cannot allege an official custom or policy of constitutional violations, as required by Monell v. Department of Social Services of City of New York (1978) 436 U.S. 658 (Monell).  (Demurrer at p. 6.)  A local governing body may be liable for federal constitutional violations under Section 1983 when “action pursuant to official municipal policy of some nature caused a constitutional tort.”  (Monell, supra, 436 U.S. at p. 691.)  But Monell does not bar claims arising under state law and the California Constitution.  The demurrer is overruled on this ground.

Defendant also argues that Torres his failed to allege deprivation of his right to substantive due process.  (Demurrer at pp. 3-5.)  According to Defendant, Torres has not alleged harm.  (Demurrer at p. 5.)  Plaintiffs allege that the failure to release a final decision is an “attempt to gain an unfair advantage in the legal proceeding.”  (TAC ¶ 82.)  But Plaintiffs do not identify harm arising from a statutory benefit or identifiable property interest subject to deprivation.  (See Schultz v. Regents of University of California (1984) 160 Cal.App.3d 768, 786-787.)  The demurrer is sustained on this ground.

The demurrer is SUSTAINED with 21 days’ leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 21st day of February 2023