Demurrer CLM

Cal. Super. - 2nd Dist.June 16, 2017

123 23561 378401583 562400020067960 113454 21905 89 SUPERIOR COURT OF CALIFORNIA, MINUTE ORDER TIME: 08:20:00 AM JUDICIAL OFFICER PRESIDING: Mark Borrell COUNTY OF VENTURA VENTURA DATE: 11/01/2017 DEPT: 40 CLERK: Evelyn Balam REPORTER/ERM: None CASE NO: 56-2017-00497815-CU-PO-VTA CASE TITLE: Cortez Arevalo vs County of Ventura CASE CATEGORY: Civil - Unlimited CASE TYPE: PI/PD/WD - Other EVENT TYPE: Demurrer (CLM) to Pltf's Complaint for Damages; Memo of p&a's and Declaration of Jonathan C. Magno and Exhibits in support thereof MOVING PARTY: Sergeant Diaz, County of Ventura, Senior Deputy Scott Reeder CAUSAL DOCUMENT/DATE FILED: Demurrer to Pltf's Complaint for Damages; Memo of p&a's and Declaration of Jonathan C. Magno and Exhibits in support thereof, 10/02/2017 EVENT TYPE: Motion to Strike Portions of Pltf's Complaint; Memo of p&a's in support thereof MOVING PARTY: Sergeant Diaz, County of Ventura, Senior Deputy Scott Reeder CAUSAL DOCUMENT/DATE FILED: Motion to Strike Portions of Pltf's Complaint; Memo of p&a's in support thereof, 10/02/2017 STOLO APPEARANCES STOLO Michael Coletti, counsel, present for Plaintiff(s) telephonically. Jonathan C. Magano, counsel, present for Defendant(s). Stolo Matter submitted to the Court with argument. The Court finds/orders: Matter taken under submission. Having considered the submitted matter, the Court rules as follows: Defendants, County of Ventura, Senior Deputy Scott Reeder and Sergeant Diaz, demur to the plaintiff's complaint. In addition, the County moves to strike allegations concerning punitive damages. The demurrer is opposed. The motion to strike is not. For the reasons stated below, the court sustains the demurrer with leave to amend and grants the motion to strike without leave to amend. Request for Judicial Notice Defendants request judicial notice of (1) Certified Minute Order of the County of Ventura Superior Court dated 9/19/17, in the matter of The People of the State of California v. Juan Arevalo Cortez, Criminal Case No. 2016039502 F.A., and (2) Certified Felony Complaint of the County of Ventura Superior Court dated 9/19/17, in that same case. Plaintiff has not objected to the request. Pursuant to Evidence Code § 452(d), the court will take judicial notice as requested. VEN-FNR-10.03 MINUTE ORDER DATE: 11/01/2017 Page 1 DEPT: 40 CASE TITLE: Cortez Arevalo vs County of Ventura CASE NO: 56-2017-00497815-CU-PO-VTA Demurrer - Heck v. Humphrey (1994) 512 U.S. 477 - As To All Moving Defendants In Heck v. Humphrey (1994) 512 U.S. 477 (Heck), the United States Supreme Court considered "whether a state prisoner may challenge the constitutionality of his conviction in a suit for damages under 42 U.S.C. § 1983." (Id. at p. 478.) Roy Heck was convicted in Indiana state court of voluntary manslaughter, and while the appeal from his conviction was pending, he filed a lawsuit in the district court under section 1983, alleging that state law enforcement officers had engaged in an unlawful investigation, destroyed evidence, and used unlawful voice identification procedures in his manslaughter trial. (Id. at p. 479.) Heck's conviction was affirmed on appeal while his section 1983 lawsuit was pending. (Ibid.) Noting that section 1983 created a species of tort liability, the Heck court recognized the established principle that "civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments ...." (Id. at p. 486.) The court therefore held that "when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." (Id. at p. 487.) Because Heck's section 1983 action challenged the validity of his conviction for manslaughter, and that conviction had been validated and finalized, the court affirmed the dismissal of his action. In Yount v. City of Sacramento (2008) 43 Cal.4th 885, 893-894 (Yount), the California Supreme Court adopted Heck, supra, 512 U.S. 477, and used the following test: "First, the court must determine, using the substantial evidence test, what acts or omissions may have formed the factual basis for the plaintiff's obstruction conviction. Second, the court must ascertain what alleged misconduct by the officer forms the factual basis for the civil rights claim (e.g., excessive force). The final step is to consider the relationship between the plaintiff's acts of obstruction and the officer's alleged misconduct." (Yount, supra, 43 Cal.4th at p. 894.) The court also adopted the rationale of Heck to be applied to state law tort claims such as battery, stating: "we cannot think of a reason to distinguish between section 1983 and a state tort claim arising from the same alleged misconduct ... Indeed, Yount's common law battery cause of action, like his section 1983 claim, requires proof that Officer Shrum used unreasonable force." (Id. at p. 902.) Here, plaintiff pleads that defendants "negligently and carelessly stopped, detained, restrained, arrested, inspected, searched and transported Plaintiff while purportedly conducting a law enforcement investigation as to cause Plaintiff to sustain physical injury." In his section 1983 and Civil Code 52.1 claims, plaintiff pleads that defendants, after having notice and knowledge that Plaintiff had complied with instructions to stop and surrender himself, nonetheless under color of law battered Plaintiff and subjected Plaintiff to severe and continuing physical battery and K-9 attack." In the IIED and assault/battery claims, plaintiff pleads that defendants subjected him to assault and battery upon plaintiff and cause severe emotional distress. This court has taken judicial notice of court records showing that defendant pled guilty to a violation of Penal Code § 148(a)(1) [resist, obstruct, delay of peace officer] and Health and Safety Code § 11378 [possession of controlled substance]. Unlike Yount, supra, 43 Cal.4th 885, and Hooper v. County of San Diego (9th Cir. 2011) 629 F.3d 1127, where there was a demarcation between acts supporting the violation of Penal Code § 148(a)(1) (i.e. kicking and biting in Yount; jerking hand away in Hooper) and the acts allegedly constituting a use of excessive force (i.e. getting shot in Yount; getting bitten by a dog in Hooper), there are no such distinction pleaded in this case. That is, plaintiff has not shown which acts formed the basis of the Penal Code § 148(a)(1) conviction and which other, distinct acts constitute an excessive force under 42 U.S.C § 1983. In the absence of such a distinction having been established by the fact pleaded, plaintiff does VEN-FNR-10.03 MINUTE ORDER DATE: 11/01/2017 Page 2 DEPT: 40 CASE TITLE: Cortez Arevalo vs County of Ventura CASE NO: 56-2017-00497815-CU-PO-VTA not state a cause of action under § 1983. At the hearing on the demurrer, plaintiff suggested that he is not required to plead the facts which distinguished the actionable conduct from that which would be barred by the rule of Heck and Yount. But the court is not persuaded. (For example, see Reed v. Labbe (C.D. Cal., Oct. 22, 2012, No. CV 10-8315-SVW OP) 2012 WL 5267726 [granting Fed. Rules of Civ. Proc., rule 12(b)(5) motion to dismiss on Heck grounds].) - First and Fourth Causes of Action for Negligence and IIED - Failure to State a Claim against County "[A] public entity cannot be held liable for common law negligence." (McCarty v. State of California Dept. of Transportation (2008) 164 Cal.App.4th 955, 977.) "[T]he general rule is that a public entity is not liable unless a statute imposes liability." (Wright v. State (2004) 122 Cal.App.4th 659, 672.) Plaintiff asserts that the stated rule should not bar his common law claims. He cites to Government Code section 815.2 as a basis for finding liability against defendants for negligence and intentional infliction of emotional distress (IIED). That statute provides: "[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative." In the reply, defendants argue that allowing plaintiff's claims to be brought against the County through vicarious liability or any other legal theory would undermine the immunity afforded to public entities under Government Code section 815. However, in McCarty v. State of California Dept. of Transportation, supra,164 Cal.App.4th at p. 977, the court proceeded with the "retained control doctrine" since Government Code section 815.4 provided for government liability for acts of independent contractors. In Wright v. State, supra, 122 Cal.App.4th at p. 672, the court found no liability for negligence and IIED only because there were specific immunity provisions barring claims. (See Gov. §§ 844.6, subd. (a)(2) [immunity for injury to prisoner]; 845.6 [immunity failure to provide medical care].) Defendants have not cited a specific immunity provision that would bar a claim under Government Code section 815. The demurrer to these causes of action is sustained on this ground, but with leave to permit plaintiff to allege facts which may establish the application of Government Code section 815.2 to the common law tort causes of action against the County. - Second Cause of Action for Violation of 42 U.S.C. § 1983 - Failure to State a Claim against County State courts have concurrent jurisdiction with federal courts to entertain suits brought under section 1983. (Williams v. Horvath (1976) 16 Cal.3d 834, 837.) "States, and state officials sued in their official capacity, are not considered 'persons' who can be sued, either in state or federal court, for damages under section 1983. [Citation]. Local governmental units such as counties or municipalities, on the other hand, are 'persons' within the meaning of section 1983. [Citations]. A local governmental unit cannot be liable under this section for acts of its employees based solely on a respondeat superior theory. A local governmental unit is liable only if the alleged deprivation of rights 'implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers,' or when the injury is in 'execution of a [local] government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.' [Citation]." (County of Los Angeles v. Superior Court (1998) 68 Cal.App.4th 1166, 1171.) In Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, a husband and wife filed claims against the County of Los Angeles, its sheriff's department, sheriff and deputies, and others, under § 1983 for unreasonable detention, search and seizure. The Supreme Court considered the following issue: "Does a sheriff act on behalf of the state or county when conducting a criminal investigation, including detaining VEN-FNR-10.03 MINUTE ORDER DATE: 11/01/2017 Page 3 DEPT: 40 CASE TITLE: Cortez Arevalo vs County of Ventura CASE NO: 56-2017-00497815-CU-PO-VTA suspects and searching their home and vehicle?" (Id. at p. 826.) The Venegas court held that "sheriffs act on behalf of the state when performing law enforcement activities," and therefore, like the state, are absolutely immune from prosecution for asserted violations of § 1983 by virtue of the Eleventh Amendment and the doctrine of sovereign immunity. (Id., at p. 826.) In County of Los Angeles v. Superior Court, supra, 68 Cal.App.4th 1166, 1171, the appellate court found that the trial court should have sustained the County of Los Angeles' demurrer to plaintiff's § 1983 cause of action. There, plaintiff sued the County for his continued detention after he had posted bail based on a warrant that plaintiff said did not apply to him. The County argued the sheriff acted as a state official rather than a policymaking county official. Plaintiff argued that the sheriff acted as a county official in setting policies governing the county jail. The court stated: "[w]e conclude that in setting policies concerning release of persons from the Los Angeles County jail, the Los Angeles County Sheriff acts as a state officer performing state law enforcement duties, and not as a policymaker on behalf of the County of Los Angeles. The county's demurrer to plaintiff's third cause of action alleging liability of the county under section 1983 should have been sustained." (Id. at p. 1178.) Here, there is no indication that defendant County is being sued for a policy statement, ordinance, regulation, or decision it had officially adopted and promulgated. Rather, it appears that it is being sued for the actions of the individual defendants. Although the complaint does not identify these individuals as working for the Sheriff's department, their titles ("Senior Deputy" and "Sergeant") and alleged actions ("under color of law" and "conducting a law enforcement investigation") indicate that they are sheriff's deputies. Under Venegas, supra, 32 Cal.4th 820 and County of Los Angeles v. Superior Court, supra, 68 Cal.App.4th at p. 1171, the County would be entitled to assert Eleventh Amendment immunity to such a § 1983 action. Plaintiff's citation to Anthony v. County of Sacramento (E.D. Cal. 1995) 898 F.Supp. 1435, 1451 and Long v. County of Los Angeles (2006) 442 F.3d 1178, 1186, is misplaced since both cases involve municipal policies that resulted on alleged deprivation of rights. The facts alleged in the complaint suggest the County is not being sued for its policy or other official act but for the acts of the individual defendants. Accordingly, demurrer is sustained as to the County with leave to amend. - Third Cause of Action for Violation of Civil Code 52.1 - All Defendants "There are two distinct elements for a section 52.1 cause of action. A plaintiff must show (1) intentional interference or attempted interference with a state or federal constitutional or legal right, and (2) the interference or attempted interference was by threats, intimidation or coercion." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67.) "Coercion inherent in the alleged constitutional violation, i.e., an overdetention in jail, is insufficient to meet the statutory requirement of 'threat, intimidation, or coercion.' [Citation]. The statute requires a showing of threatening conduct independent from the alleged interference or violation of a civil right." (Doe v. State (2017) 8 Cal.App.5th 832, 842-843.) The court in Doe v. State, supra, 8 Cal.App.5th at p. 843 stated: "Here, assuming agents of the State DOJ threatened to arrest/prosecute John if he failed to register as a sex offender, the Does did not allege those agents engaged in independently threatening (or intimidating, coercive) conduct apart from the threats to arrest/prosecute him. Moreover, the evidence shows that John could have determined his legal duties regarding registration as a sex offender; State agents did nothing to prevent him from exercising his legal rights. Under the circumstances, the State DOJ's sharing of John's information with local law enforcement does not constitute 'threat, intimidation, or coercion' for purposes of Civil Code section 52.1. Accordingly, the Does have not established a probability of prevailing on their Bane Act claims." Plaintiff alleges in the third cause of action that defendants intentionally, recklessly and/or with gross negligence and with deliberate indifference and reckless disregard to the safety of plaintiff, after notice and knowledge that plaintiff had complied with instructions to stop and surrender himself, nonetheless VEN-FNR-10.03 MINUTE ORDER DATE: 11/01/2017 Page 4 DEPT: 40 CASE TITLE: Cortez Arevalo vs County of Ventura CASE NO: 56-2017-00497815-CU-PO-VTA under color of law battered plaintiff and subjected him to K-9 attack. It is further alleged that defendants battered and subjected plaintiff to physical injury and unreasonable risk of harm in violation of plaintiff's due process and equal protection rights. These allegations do not meet the requirement for plaintiff to allege any interference by threats, intimidation or coercion that is independent from the alleged interference or violation of a civil right. Therefore, the third cause of action fails to allege facts on which such a cause of action may be stated. Motion to Strike Government Code § 818 states: "[n]otwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant." Plaintiff has filed a notice of non-opposition to the County's motion to strike the request for punitive and exemplary damages. Further, there is no dispute that defendant County is a public entity which is not subject to punitive damages under Government Code § 818. Therefore, the motion to strike is granted without leave to amend. Conclusion The demurrer is sustained as to the entire complaint with leave to amend. The unopposed motion to strike is granted without leave to amend. The amended complaint, if any, is to be filed and served by November 20, 2017. The clerk is directed to give notice. STOLO VEN-FNR-10.03 MINUTE ORDER DATE: 11/01/2017 Page 5 DEPT: 40