Judge: Yolanda Orozco, Case: 21STCV27613, Date: 2022-11-28 Tentative Ruling

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Case Number: 21STCV27613    Hearing Date: November 28, 2022    Dept: 31

MOTION FOR JUDGMENT ON THE PLEADINGS IS DENIED; PLAINTIFF’S REQUEST FOR ORDER RE: SERVICE OF COMPLAINT IS DENIED

Background 

On July 28, 2021, Plaintiff Jeff Baoliang Zhang, Ph.D. (“Plaintiff”), who is self-represented, filed the instant action against Defendant Los Angeles Police Department. The Complaint asserts causes of action for:  

1)               Willful Perjuries, the Serious Violation of the Federal Laws;  

2)               Violation of the United States Constitution; and 

3)               Theft and Robbery of Plaintiff’s Property.  

On June 28, 2022, Defendant filed a Motion for Judgment on the Pleadings. Plaintiff filed an opposition on November 8, 2022. No reply has been filed. 

meet and confer 

A motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.) 

Defense counsel asserts they tried to meet and confer with Plaintiff via phone and email. (Estrada Decl. ¶¶ 3, [sic] 43.) The Court is satisfied that the meet and confer requirement has been met. 

Legal Standard 

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)¿¿¿ 

Request for Judicial Notice 

Defendant requests Judicial Notice of Declaration of Michael Valdivia, Deputy City Clerk, dated June 14, 2022 attesting that no claim was filed on behalf of Jeff Baoliang Zhang, attached as Exhibit A. (RJN Ex. A.) 

Defendant asserts Judicial Notice is proper under Evidence Code section 452, subdivision (c) because the declaration concerns the records, files, and or notices of a government entity. (See

Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752 [permitting judicial notice that no claim under the Government Torts Claims Act was filed attested to by a state employee familiar with the records.].) However, the Court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)  

Therefore, the request for Judicial Notice is GRANTED. 

Discussion

I.                motion for Judgment on the Pleadings 

On March 24, 2022, the Defendants’ demurrer was SUSTAINED WITHOUT LEAVE TO AMEND as to the first cause of action for “Willful Perjuries, the Violation of the Federal Laws” and OVERRULED as to the second and third causes of action for “Violation of the United States Constitution” and “Theft and Robbery of Plaintiff’s Property.”  (See Min. Or. 03/25/22.) In overruling the demurrer as to the second and third causes of action, the Court reasoned that liability for the second and third causes of action was premised on the fact that the Los Angeles Police Department (LAPD) committed theft of Plaintiff’s personal belongings when it failed to return the items within Plaintiff’s vehicle and the items it retrieved form the alleged robbery. (Id; see also Compl. ¶¶ 57-58, 66-67.) 

Defendants now move for judgment on the pleadings on the basis that Plaintiff failed to comply with the Government Torts Claim Act by failing to file a claim with the Defendant and their claim is now barred. (Gov. Code, § 945.4) 

“A public entity cannot be sued for tort unless (1) a timely written claim has previously been presented to the governmental entity, (2) any late claim has been presented to the public entity and been excused by it or the court, or (3) conditions described by Government Code section 946.4, not applicable to this case, have been met. (Gov. Code, § 945.4; all other code citations are to the Gov. Code unless otherwise noted.) A personal injury claim must be presented within 100 days from its accrual. (§ 911.2.).” (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 483.) “As general rule, California law requires that all claims for money or damages against a local public entity must first be filed with the entity as a “condition precedent to the maintenance of the action.” (Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1571 citing City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454; see also Gov. Code, §§ 905, 945.4.) 

In addition to alleging perjury by Defendant, Plaintiff seeks to recover his personal belongings that was impounded due to his arrest. (Compl. ¶ 57-58, 66-67, 72.) Plaintiff’s Complaint asserts causes of action “Fraud” and “Intentional Tort,” as attached to his Complaint.  The fraud cause of action pertains to Plaintiff’s alleged wrongful conviction. (See CAUSE OF ACTION—Fraud, ATTACHMENT TO Complaint, Page 76.) Plaintiff’s cause of action for Intentional Tort similarly references his alleged wrongful conviction but also alleges that: 

“LAPD stole/robbed me of all my valuables from my car but they intentionally ignored my legal demand for the a inventory. . . . Those bad cops in LAPD were so greedy as they have not returned my valuable physical items to me till this date, and they never told me about the money they got from impounding my car.” 

(See CAUSE OF ACTION—Intentional Tort, ATTACHMENT TO Complaint, Page 78 of 78.) Therefore, it is undisputed that Plaintiff was required to file a claim under the Government Torts Claim Act. 

Defendant asserts that Plaintiff has failed to file any claim within six months of the dates alleged in his Complaint. (Mot. at p. 7:4-7). Defendant attaches a declaration from Michael Valdivia, Deputy City Clerk, who asserts that after a diligent search of the City of Los Angeles’ Claims and Refund Database, the City Clerk’s Office “has not been served with a claim for Damages or a Claim for refund of personal loss or injury filed on behalf of, or by anyone with the name of Jeff Baoliang Zhang for any incident as of June 14, 2022.” (RJN Ex. A.) Defendant does not dispute this assertion. 

The purpose of the Government Tort Claim Act is “to provide the public entity sufficient information to enable it to adequately investigate and to settle them, if appropriate, without the expense of litigation.” (City of San Jose, supra, 12 Cal.3d 447 at 455.) “Consequently, a claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what the entity is alleged to have done.’ (Citations.) As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious action, the claims statute ‘should not be applied to snare the unwary where its purpose has been satisfied’ (Citation).” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446.) 

Here, Plaintiff’s complaint is rife with assertions that Plaintiff provided notice to Defendants that he was seeking to recover his property from the LAPD. This includes several letters to the Chief of Police dated July 20, 2017, detailing the property lost and Plaintiff’s attempts to recover said property from the LAPD dated September 18, 2017; October 23, 2017; February 05, 2019; May 28, 2019; April 23, 2019; and October 21, 2020.  (See Compl. Attachments.) 

As explained by Defendant, the LAPD and the City of Los Angeles are not separate and distinct entities. (See Alcala v. City of Corcoran (2007) 147 Cal.App.4th 666, 669-670.) Therefore, a suit against the Los Angeles Police Department is tantamount to a suit against the City of Los Angeles. Accordingly, the proper defendant in this case is the City of Los Angeles, and not the Los Angeles Police Department. Defendant fails to explain why notice to the LAPD regarding Plaintiff’s lost property did not satisfy the notice requirements of the Government Tort Claim Act. Moreover, Defendants cannot show that Plaintiff’s letters to the Chief of Police or his other requests to the LAPD fail to comply with the notice requirements outlined in Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441.  In general, Plaintiffs letters to the Chief of Police stated: 

“On the day of 12-15-2011 when I turned myself in to La Brea City Police Department, I drove my car with a full load of my personal property inside. I did so because my wife was in China and I had no place to store at that time. Among the valuables, there are two new laptop computers with English and Chinese software, $500 cash, a gold ring, a golden watch, some foreign currency, a genuine leather briefcase, four flash drives, and other valuable items. However, the most valuable stuff to me are the many academic and literary works from my long-time doctoral studies and life experiences. A few books were complete and were ready to get published. Because they are irreplaceable, i.e., I do not have copies in other places, they thus mean everything to me. For these, I inquired a few times in the past after I was sent to jail. But LAPD did not respond. They just ignored my request for a detailed category list of all my properties that they have kept all the time. After I came to Wasco State Prison, in early Nov. 2015, I wrote again to La Brea City Police Department. They informed me that I should contact LAPD. As mentioned, I wrote to LAPD a few times already but they would not respond, so I knew it was hard. But according to the laws, they must return everything to me. That’s why I wrote to your Department once more in Dec. 2015. After half a year, in July 2016, I got reply that your Department has only kept a bundle of my clothes. I rebutted to such a reply. In late December 2016, two female LAPD detectives came to WSP for investigation. They still attempted to deny me. On 12-28-2016, I wrote a more detailed list of all my properties that are kept in your Department. Then, not until 09-13-2017, I got such a reply from Robert Long, who again denied me.” 

(See Compl [Attachment Feb. 05, 2019 Letter].) 

Plaintiff’s Complaint asserts that he provided notice to the LAPD and even alleged to have received a reply that his request was being denied. Plaintiff’s letter “fairly describes what the entity is alleged to have done” and appears to have given the LAPD sufficient notice to investigate and evaluate the claim. (See Stockett, supra, 34 Cal.4th at 446.) 

For the reasons outlined above, the Court cannot find that Plaintiff failed to comply with the notice requirements of the Government Tort Claim Act or that the notice was inadequate as a matter of law. Second, Defendant has not shown that even if Plaintiff did provide notice, the notice was untimely under Government Code sections 905 and 945.4. 

Accordingly, the Motion for Judgment on the Pleadings is DENIED. 

II.             Plaintiff’s Request that Defendants “Pass” Copies of the Complaint 

Plaintiff requests that the Court compel Defendant to “pass” copies of the complaint to Charlie Beck and Albert Dalarocha [sp]. The Court assumes Plaintiff seeks an Order that Defendant City serve these Defendants with the complaint. 

Plaintiff asserts that he has not been able to obtain the contact information of the two Defendants in order to serve them. Plaintiff has not provided sufficient information to show that he has been diligent in trying to serve the defendants or that Plaintiff has hired a process server to help locate the two defendants. 

Moreover, Plaintiff has failed to cite any legal authority, and the Court is not aware of any authority, that this Court may compel Defendant City to serve the Complaint on other defendants. 

For the reasons stated, the Motions are DENIED. 

Conclusion 

1)               Defendant’s Motion for Judgment on the Pleadings is DENIED.

2)               Plaintiff’s request that Defendant “Pass” the Complaint to the other two individual defendants is DENIED. 

Defendant City to give notice.