Judge: Yolanda Orozco, Case: 22STCV00710, Date: 2023-03-08 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 22STCV00710    Hearing Date: March 8, 2023    Dept: 31




Defendant County of Los Angeles’s demurrer to the Plaintiff’s First Amended Complaint is SUSTAINED WITH 30 DAYS LEAVE TO AMEND. 


On January 07, 2022, Plaintiff in pro se Marco A. Abeyta filed a Complaint against Defendants the County of Los Angeles, the City of Burbank, and Does 1 to 50. 

On September 06, 2022, Plaintiff filed a First Amended Complaint (FAC) alleging causes of action for: 

1) Discrimination based on Race in violation of Civil Rights,

2) Trespass to Property;

3) Invasion and Intrusion of Privacy and Private Affairs; and

4) Intentional Infliction of Emotional Distress. 

On October 07, 2022, Plaintiff and Defendant City of Burbank entered into a joint stipulation to dismiss the City of Burbank as a Defendant. 

On October 06, 2022, Defendant County of Los Angeles filed a demurrer without a motion to strike Plaintiff’s FAC. 

No opposition or reply has been filed. 


Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., §§ 430.41, 435.5.) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)  

The meet and confer requirement has been met. (Mathevosian Decl. ¶ 2.) 

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.)¿¿ 

¿ ¿¿ 

 “Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ 


Allegations in FAC 

The FAC alleges that Plaintiff was arrested by the Burbank Police Department (“BPD”) on August 23, 2018. (FAC ¶¶ 7-9). The FAC alleges that the Plaintiff’s arrest and intrusion into his personal dwelling and property occurred at the direction of the City of Burbank and the County of Los Angeles. (FAC ¶ 9.) The FAC alleges Plaintiff spent one year in jail due to fabricated and unsupported facts made up by Defendants. (FAC ¶ 11.) 

Plaintiff was released on November 04, 2020, and suffered a loss of reputation due to his arrest and incarceration. (FAC ¶¶ 16, 17.) Plaintiff’s personal assets, including bank accounts, were wrongfully seized, and the use of excessive force caused Plaintiff to suffer emotional distress. (FAC ¶ 19.) 

County’s Demurrer to FAC 

Defendant Los Angeles County (the “County”) demurrer to the FAC on the bases that the FAC (1) fails to allege a viable cause action or basis for liability against the County, (2) fails to comply with the mandatory provisions of the Government Claims Act, and (3) fails to allege a federal claim under Monell against the County. 

a. 1st COA: Failure to Allege a Cause of Action under the Federal Civil Rights Act 

The County asserts that as a public municipal entity, Plaintiff’s ability to sue Defendant federally is governed by Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, in which the United States Supreme court held that in order for a local government to be held liable for monetary, declaratory or injunctive relief, the plaintiff must allege and prove the conduct complained of “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by the body’s officers.” (Id. at 690.) Moreover, municipal entities may not be held liable under a theory of respondeat superior solely because its employee is tort-feasor. (Id. at 691.) 

Here, there are no facts alleged to show that Plaintiff suffered a constitutional violation on the basis of race pursuant to a government custom or that the police officers that arrested Plaintiff were employed by the County. “But where an agent or employee of the government who violated a plaintiff's rights did not do so in accordance with a settled governmental custom or an official policy, the government would not be liable under section 1983.” (Beames v. City of Visalia (2019) 43 Cal.App.5th 741, 778.) 

Accordingly, Plaintiff’s first cause of action for Civil Discrimination based on race fails and the demurrer to the first cause of action is sustained with leave to amend. 

b. 2d, 3d, and 4th COAs: Failure to Allege A Statutory Basis for Tort Liability 

Government Code section 815 states: 

“(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.


(b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.” 

“Tort liability of public entities in California is governed by the Tort Claims Act (Gov. Code, § 810 et seq.). The act provides generally that public entities are not liable for injuries ‘except as otherwise provided by statute ....’ (§ 815, subd. (a).) Section 815 ‘abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation.” (Citation.) Accordingly, ‘public entities may be held liable only if a statute ... is found declaring them to be liable.’ (Citations.)” (Forbes v. County of San Bernardino (2002) 101 Cal.App.4th 48, 53.) 

Plaintiff fails to cite any statutory basis for imposing liability on the County. As explained by the California Supreme Court, “in order to impose a mandatory duty on a public entity” under the Torts Claims Act, “the mandatory nature of the duty must be phrased in explicit and forceful language, and the statute must impose a duty on the specific public entity sought to be held liable.” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 894 [internal citations and quotations omitted].) 

Accordingly, the County cannot be held liable for injury arising from an act or omission except as provided by statute. Plaintiff’s failure to identify the specific statutes purporting to subject the County to liability means that plaintiff’s second, third and fourth tort-based causes of action for Trespass to Property, Invasion of Privacy, and Intentional Infliction of Emotional Distress, are subject to demurrer. 

The demurrer to the second, third, and fourth causes of action is SUSTAINED WITH LEAVE TO AMEND. 

c. Failure to Comply with the Mandatory Provision of the Government Claims Act 

“As a 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.)  

Defendant County asserts that Plaintiff has failed to allege he complied with the mandatory requirements of the Government Torts Claim Act by failing to file a claim with the Defendant. (Gov. Code, § 945.4.) 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.) 

Having failed to state facts that Plaintiff complied with the mandatory requirements of the Government Claims Act by presenting a claim to the County, the demurrer to the FAC is SUSTAINED WITH LEAVE TO AMEND. 


Defendant County of Los Angeles’s demurrer to the Plaintiff’s First Amended Complaint is SUSTAINED WITH 30 DAYS LEAVE TO AMEND. 

Moving party to give notice.