Case Number: EC066860 Hearing Date: June 08, 2018 Dept: A

Kevorkian v L.A. County Sheriff’s Dept.

DEMURRER

Calendar: 6
Case No: EC066860
Date: 6/8/18
Action Filed: 7/10/17

Trial: Not set (CMC 7/18/18)

MP: Defendants Los Angeles County Sheriff’s Department and Detective Ronald Hernandez

RP: Plaintiff Antranik Kevorkian

ALLEGATIONS IN COMPLAINT:

In this action, Plaintiff Antranik Kevorkian alleges that Defendants accused him of vandalism in a Ralph’s market parking lot and thereafter filed a misdemeanor criminal complaint against him. Plaintiff alleges this has subjected him to going to court and malicious prosecution.

The complaint, filed July 10, 2017, alleges causes of action for: (1) negligence; (2) negligent infliction of emotional distress; (3) violation of 14th Amendment to the U.S. Constitution (42 U.S.C. section 1983); (4) violation of Article 1, section 7(a) of the California Constitution; and (5) intentional infliction of emotional distress.

RELIEF REQUESTED:
Defendants Los Angeles County Sheriff’s Department (“LASD”) and Detective Ronald Hernandez (“Hernandez”) demur to each cause of action alleged in the complaint on the basis that they fail to state sufficient facts to constitute a cause of action and that the action is barred because Plaintiff has not complied with the statutory time requirements of the California Tort Claims Act (Gov’t Code, §911.2).

DISCUSSION:

General Appearance

Preliminarily, the Court notes that LASD and Hernandez’s motion to quash was granted on April 13, 2018. On June 1, 2018, the Court denied Plaintiff’s motion for reconsideration on the demurrer of Defendants Reed, Marques, and Nebel, and the motion to quash by LASD and Hernandez.

However, as LASD and Hernandez state in the demurrer’s memorandum of points and authorities that they were served on April 18, 2018. Based on this service and the filing of this demurrer, they have waived any defect in jurisdiction. (Fireman’s Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1145; Cal. Prac. Guide Civ. Pro. Before Trial, Rutter Guide (June 2018 Update) Ch. 4-F, §4:420.)

As such, LASD and Hernandez have made a general appearance and the demurrer will be considered on its merits.

Procedural Issues

In opposition, Plaintiff argues that the demurrer was untimely served, as it did not account for the additional 5 days of mailing pursuant to CCP §§1005 and 1013. While this may be the case, the Court notes that Plaintiff has and was able to respond to the merits of the demurrer and does not appear to have been prejudiced.

Further, the Court notes that Plaintiff’s opposition violates the page length requirements pursuant to CRC Rule 3.1113(d), which states that no motion or opposition may exceed 15 pages (except for summary judgment motions). Thus, the Court may, in its discretion, treat a memorandum that exceeds the page limit to be considered in the same manner as a late-filed paper by refusing to consider it. (CRC Rule 3.1113(g).)

As neither party appears to be prejudiced by the service or page length, the Court will consider the parties’ papers on their merits.

Request for Judicial Notice

LASD and Hernandez request that the Court take judicial notice of: (A) the October 31, 2016 Claim for Damages filed by Plaintiff; (B) the November 8, 2016 Notice of Insufficiency Letter by the Board of Supervisors; (C) the November 15, 2016 Amended Claim for Damages filed by Plaintiff; and (D) the January 3, 2017 Denial Notice by the Board of Supervisors. The Court grants judicial notice of these documents pursuant to Evidence Code, §452(c) and Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368 FN1, 376 [“The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.”].)

Statutory Time Requirements of the California Tort Claims Act

Government Code, §911.2(a) provides: “A claim relating to a cause of action for death or for injury to person or to personal property … shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.” (Gov. Code, § 911.2(a).) “[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented … until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board ….” (Gov. Code, §945.4.) A suit brought against a public entity for which a claim is required to be presented, must be commenced, if written notice is given pursuant to section 913, not later than six months after the date such notice is personally delivered or deposited in the mail. (Gov. Code, §945.6(a)(1).)

Presenting a claim to the public entity and its rejection are mandatory prerequisites to maintaining a suit against an entity. (Nguyen v. Los Angeles County Harbor/UCLA Medical Center (1992) 8 Cal.App.4th 729, 732.) The purpose of the claim is to provide the public entity with sufficient information to enable it to investigate and evaluate the merits of claims, assess liability, and, where appropriate, to settle claims without the expense of litigation. (Id.) Once this underlying purpose has been satisfied, the courts should employ a substantial compliance test to determine whether the plaintiff has met the filing requirements. (Id.) However, the doctrine of substantial compliance does not apply where there has been a failure to comply with all of the statutory tort claim requirements. (Id. at 733.) “Timely compliance with the claim filing requirements and rejection of the claim by the governmental agency must be pleaded in a complaint in order to state a cause of action.” (Dujardin v. Ventura County Gen. Hosp. (1977) 69 Cal.App.3d 350, 355.)

In the complaint, Plaintiff alleges he received a call from Hernandez accusing him of vandalism on August 31, 2015. He also alleges that on October 8, 2015 he received a letter from the Altadena Sheriff’s Department, signed by Reed, that a complaint had been filed against Plaintiff or October 21, 2015 charging him with a violation of Penal Code, §594. (Compl., ¶¶2, 11, 13.) Plaintiff alleges that he complied with the Government Tort Claims Act by timely filing a claim against LASD and by then timely filing the complaint. (Compl., ¶5.) He alleges he submitted a written tort complaint to the County of Los Angeles Counsel on November 15, 2016. (Compl., ¶16.)

According to the documents submitted in Defendants’ request for judicial notice, Plaintiff did not submit a Claim for Damages until October 31, 2016. Even applying the latest date of October 21, 2015 from when Plaintiff’s cause of action may have accrued, Plaintiff would have been required to submit his claim by April 21, 2016 (i.e., 6 months from the accrual date). Thus, Plaintiff’s Claim for Damages was not timely submitted.

Plaintiff’s cause of action also did not accrued on May 9, 2016 when the misdemeanor charges were dropped. While Government Code, §945.3 states that no person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing the peace officer, “[n]othing in this section shall prohibit the filing of a claim with the board of a public entity, and this section shall not extend the time within which a claim is required to be presented pursuant to Section 911.2.” (Emphasis added.) As such, while Plaintiff could not initiate a civil lawsuit, he was still required to bring his government claim timely. He failed to timely submit his claim and satisfy the statutory time requirement of the California Tort Claims Act.

In addition, the Board of Supervisors served Notices of Insufficiency on Plaintiff on November 8, 2016 and January 3, 2017 by mail. Thus, Plaintiff had 6 months thereafter (plus 5 days for mailing) to file a lawsuit against Defendants (i.e., by July 8, 2017). The lawsuit was not filed until July 10, 2017, which is untimely.

The Court will sustain the demurrer on this basis as Plaintiff has not met the requirements of the California Tort Claims Act.

Demurrer to the 1st and 2nd Causes of Action for Negligence and Negligent Infliction of Emotional Distress

The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.) Negligent infliction of emotional distress is not an independent tort, but rather is a tort of negligence of which the duty element applies. (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 463.) Damages for emotional distress are recoverable only if defendant has breached some other, independent duty to plaintiff, which may be imposed by law, assumed by the defendant, or exist by virtue of a special relationship between the parties. (Id.)

In the first cause of action, Plaintiff alleges that Defendants owed a duty to Plaintiff to not violate his state and federal constitutional laws and they breached their duty by acting or failing to act in a certain and unlawful way (i.e., not investigating the incident lawfully), which caused Plaintiff’s injury. (Compl., ¶18 at p.5:19-25.) However, Plaintiff fails to plead how this duty of care arose, whether this was imposed by law, assumed by Defendants, or if a special relationship existed. Furthermore, for the negligent infliction of emotional distress claim, Plaintiff fails to allege a separate duty from which his emotional distress claim arises. (See Compl., ¶20.)

In the opposition, Plaintiff recites the standard for demurrer and the elements for his causes of action, but he does not provide any further analysis of his causes of action or how he can cure his causes of action in amendment.

Accordingly, the Court will sustain the demurrer to the first and second causes of action on the ground that they fail to allege sufficient facts to constitute a cause of action against LASD and Hernandez.

Demurrer to the 3rd and 4th Causes of Action for Violation of the 14th Amendment to the U.S. Constitution and for Violation of Article 1, Section 7(a) of the California Constitution

42 U.S.C. §1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” In other words, the two essential elements of a section 1983 claim are: “(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” (Parratt v. Taylor (1981) 451 U.S. 527, 535.)

Under the 14th Amendment of the U.S. Constitution, “No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Article 1, section 7 of the California Constitution mirrors the 14th Amendment protections of the U.S. Constitution.

In the complaint, the third cause of action is merely a recitation of the law and conclusory statements that Defendants violated section 1983. (Compl., ¶27.) Plaintiff generally alleges that his 14th Amendment rights were violated, but fails to allege facts showing how his rights were violated. The fourth cause of action is similarly devoid of facts.

As such, the Court will sustain the demurrer to the third and fourth causes of action on the ground that they fail to allege sufficient facts to constitute a cause of action against LASD and Hernandez.

Demurrer to the 5th Cause of Action for Intentional Infliction of Emotional Distress

The elements for an intentional infliction of emotional distress claim are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228–229.) Conduct is deemed outrageous when it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. at 229.) In order to avoid a demurrer, the plaintiff must allege with great specificity, the acts which she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

In the fifth cause of action, Plaintiff against merely recites the law, but fails to show that Defendants’ conduct was extreme and outrageous. Thus, Plaintiff has not met this specificity requirement to plead a cause of action for intentional infliction of emotional distress.

Accordingly, the demurrer to the fifth cause of action is sustained on the ground that they fail to allege sufficient facts to constitute a cause of action against LASD and Hernandez.

RULING:

Sustain the demurrer of LASD and Hernandez without leave to amend since Plaintiff has not shown how he can cure the deficiencies in his complaint and on the basis that Plaintiff has not met the statutory requirements to file a claim for damages against them, and each of the causes of action fail to state sufficient facts to constitute causes of action against them.