Demurrer CLM

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

123 23561 378401583 56240002006790 896 113454 21905 SUPERIOR COURT OF CALIFORNIA, MINUTE ORDER TIME: 08:20:00 AM JUDICIAL OFFICER PRESIDING: Mark Borrell COUNTY OF VENTURA VENTURA DATE: 01/25/2018 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 Plaintiff's First Amended Complaint MOVING PARTY: Sergeant Diaz, County of Ventura, Senior Deputy Scott Reeder CAUSAL DOCUMENT/DATE FILED: Demurrer and Demurrer to Plaintiff's First Amended Complaint for Damages; Memo of Points and Auth and Declaration of Jonathan C Magno and Exhibits in Support Thereof, 12/26/2017 EVENT TYPE: Motion to Strike Portions of Plaintiffs Complaint MOVING PARTY: Sergeant Diaz, County of Ventura, Senior Deputy Scott Reeder CAUSAL DOCUMENT/DATE FILED: Motion to Strike Portions of Plaintiff's First Amended Complaint; Memo of Points and Auth and Declaration of Jonathan C Magno in Support Thereof, 12/26/2017 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: The Court's tentative is adopted as the Court's ruling. [start of tentative ruling] Defendants, County of Ventura, Senior Deputy Scott Reeder and Sergeant Diaz, demur to plaintiff's first amended complaint. In addition, these defendants move to strike portions of the complaint. The demurrer is opposed. The motion to strike is not. Request for Judicial Notice Defendants ask the court to take judicial notice of four documents. Plaintiff objects to the request as it relates to the fourth document, a copy of arrest reports prepared in connection with, among other things, the apprehension and arrest of plaintiff. Plaintiff objects on the ground that these reports, and the facts stated therein, are not the proper subject of judicial notice. Specifically, plaintiff asserts that the facts contained in the report are subject to dispute and that the reports would not be admissible to prove those facts over a hearsay objection. Plaintiff's objections would be well taken if the reports were offered to prove the truth of the matters VEN-FNR-10.03 MINUTE ORDER DATE: 01/25/2018 Page 1 DEPT: 40 CASE TITLE: Cortez Arevalo vs County of Ventura CASE NO: 56-2017-00497815-CU-PO-VTA stated in the reports. But they are not. The reports were referenced in the plea form as the factual basis for the plaintiff's plea. That is, the facts stated in those reports describe the criminal conduct subsumed in and admitted by plaintiff's plea. This is relevant to the court's analysis under Heck v. Humphrey, as discussed below. Therefore, the court will take judicial notice of the police reports, not for the truth of the matters stated therein, but solely as the factual basis for plaintiff's plea. The request for judicial notice is granted. Demurrer - County's Demurrer to the Second Cause of Action for Violation of 42 U.S.C. § 1983 This is the second time plaintiff has attempted to plead a cause of action under Section 1983 against the County, and the second time the County has demurred. The court ruled on the earlier demurrer by minute order, dated November 1, 2017, and much of the analysis and authorities set out in the minute order continue to be applicable to plaintiff's complaint. Therefore, the court incorporates that prior minute order by reference. The problem which caused the court to sustain the County's previous demurrer continues in the current version of the complaint. As the court wrote in the prior minute order: "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." Plaintiff has not cured this defect. First, in his written opposition, plaintiff merely cites to authorities which this court previously considered and found were not persuasive. He fails to discuss how the allegations of the amended complaint differ from the original complaint. Second, although plaintiff has made allegations concerning certain informal policies and practices allegedly permitted within the sheriff's department (see FAC, ¶ 30 et seq.), plaintiff makes no attempt to explain in his opposition how these allegations support the cause of action. There is no explanation as to how the conduct of the sheriff's department constitutes acts of a "person" within the meaning of Section 1983 as construed in the Venegas and County of Los Angeles cases, discussed in the court's prior minute order. The court is not required to accept the conclusory allegation that the County somehow fostered the alleged improper practices in the sheriff's department. The County's demurrer to the second cause of action is sustained. - Demurrer to Third Cause of Action for Violation of Civil Code Section 52.1 (All Defendants) As with the second cause of action, the defendants' demurrer to the third cause of action bears many similarities to the prior demurrer. The court again incorporates by reference its discussion set forth in the prior minute order. The court previously sustained the demurrer to plaintiff's cause of action under Civil Code section 52.1 because: "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 VEN-FNR-10.03 MINUTE ORDER DATE: 01/25/2018 Page 2 DEPT: 40 CASE TITLE: Cortez Arevalo vs County of Ventura CASE NO: 56-2017-00497815-CU-PO-VTA and knowledge that plaintiff had complied with instructions to stop and surrender himself, nonetheless 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." In his amended complaint, plaintiff alleges that "[t]he detention and intimidation" along with "deliberate and excessive acts of battery" constituted "specific threats and coercive conduct." (FAC, ¶ 44.) But even a wrongful detention cannot be the type of "coercive conduct" for which liability may arise under Civil Code section 52.1. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 69.) And plaintiff's conclusory and unexplained allegation of "intimidation" is insufficient to state a cause of action under this section. (Ibid.) The demurrer to the third cause of action is, therefore, sustained. - Heck v. Humphry The court previously sustained defendant's demurrer based on the authority of Heck v. Humphrey (1994) 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383. Once again, this court incorporates by reference the discussion set out in its prior minute order, as it continues to be applicable. In Heck, the United States Supreme Court held that "when a state prisoner seeks damages in a [section] 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., 512 U.S. at p. 487, 114 S.Ct. 2364.) These principles are discussed in greater depth in the prior minute order. In sustaining the prior demurrer, the court reasoned: "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 not state a cause of action under § 1983." Plaintiff's causes of action are predicated on the theory that plaintiff was assaulted by law enforcement officers and their canine after he had stopped fleeing and had submitted to their authority. But plaintiff still fails to establish a distinction between the allegedly actionable conduct and the conduct that underlies his criminal conviction. Indeed, defendants have now offered the evidence of the factual basis of plaintiff's plea. The court has not noticed these records for the truth of those facts, but rather to establish the conduct which plaintiff admitted by his plea to violating Penal Code section 148. The reported facts demonstrate that the criminal conduct to which plaintiff pleaded continued throughout the time that force was used to apprehend and detain him. Plaintiff has pleaded no facts or offered any cogent argument which would persuade the court otherwise. The demurrer based on Heck v. Humphry is sustained. - Leave to Amend VEN-FNR-10.03 MINUTE ORDER DATE: 01/25/2018 Page 3 DEPT: 40 CASE TITLE: Cortez Arevalo vs County of Ventura CASE NO: 56-2017-00497815-CU-PO-VTA The court will hear argument as to whether leave to amend should be granted. If leave to amend is granted, it will be expressly conditioned on plaintiff complying with California Rules of Court, rule 2.112. Failure to abide by this condition may result in the amended complaint being stricken without leave to amend. The Court does grant leave to amend no later than 2-22-18. Motion to Strike Plaintiff does not oppose the motion to strike. It is granted without leave to amend. The court previously granted a similar motion to strike without leave. The contested matter should not have been included within the first amended complaint. [end of tentative ruling] Parties waive notice. STOLO VEN-FNR-10.03 MINUTE ORDER DATE: 01/25/2018 Page 4 DEPT: 40