2013-00143653-CU-PO

Eric Alston vs. State of California

Nature of Proceeding: Hearing on Demurrer

Filed By: Garza, Andreas O.

Defendant State of California, by and through the California Highway Patrol’s Demurrer
to the Complaint, is ruled on as follows:

Plaintiff, in propria persona, alleges that he was riding his bike downtown on K street
when he was forcefully tapped on his shoulder and thrown off his bike to the ground by
CHP officer Porter, denting the truck of a third party in the process. He alleges that he
was thereafter handcuffed and that CHP Officer Dees threw plaintiff against the car
and began giving him numerous elbow blows to the ribs. Plaintiff alleges that he
required knee surgery to his damaged ACL graft as a result being pushed off of his
bike. Plaintiff also alleges that he has a mental disability and has obtained treatment
at Kaiser’s psychiatric department as a result of the emotional distress accruing from
this incident. Plaintiff alleges that ten days after the incident he was interviewed by
CHP Officer Beal who allegedly attempted to intimidate plaintiff into stating that his
injuries were due to acts of the Sacramento County Sheriff’s Department at the County
Jail and not the CHP. Plaintiff alleges that these actions violated the Bane Act.
Plaintiff alleges he was also told to turn over his Kaiser medical records to the CHP but
he refused. Plaintiff alleges that he timely filed a tort claim.

Plaintiff’s amended complaint does not comply with California Rule of Court, rule
2.112, which requires that a complaint separately state and number each cause of
action and allege what party or party is named as a defendant in each cause of action.
Plaintiff mentions different claims in his general allegations, such as violation of the
Bane Act and a federal statute, yet the only actual cause of action separately alleged
by number is a cause of action for Intentional Tort. The claim is alleged against
“California Sgt. Beal, Officer Porter, and Officer Dees.” Although it appears that
plaintiff meant to name the State of California by the use of the word “California” before
Sgt Beal, there is no comma separating the words, therefore it was unclear to moving
party whether they were named in the cause of action for intentional tort.

Only the CHP (State of California) has demurred to the Complaint. The Plaintiff filed
an Amended Complaint after the demurrer was filed that is substantially the same
document, therefore the Court is ruling on the demurrer since the same allegations
appear in the “Amended Complaint.”

1st cause of action Intentional Tort:

Sustained with leave to amend for failure to state facts sufficient to constitute a cause
of action and for uncertainty. Contrary to plaintiff’s intention, the State of California is clearly not named as a defendant in this cause of action, in violation of California Rule
of Court, rule 2.112. To the extent plaintiff may be alleging a civil rights violation, the
State of California is immune from liability. Plaintiffs allegations may be sufficient to
state a civil rights claim (federal) against other parties; however the State is not a
proper defendant to a federal civil rights claim due to sovereign immunity. State
Agencies are not persons under federal civil rights statutes. Will v Mich. Dep’t of State
Police (1989) 491 U.S. 58, 71.

Under the Government Claims Act, plaintiff is required to allege the statute that
supports governmental liability. Zuniga v Housing Authority (1995) 41 Cal.App.4th 82.
It is not clear whether plaintiff is alleging direct liability of the CHP, or vicarious liability
for the acts of the officers under Government Code 815.2 and 820.

In opposition, plaintiff states that he is suing the State of California for the actions of its
employees. Plaintiff is being given leave to amend to allege claims against the State
pursuant to Gov. Code 815.2 and 820. Any claim for violation of civil rights cannot be
brought against the State of California, but plaintiff is given leave to amend to allege a
civil rights claim against parties other than the State of California. If plaintiff is
intending to allege a cause of action for violation of the Bane Act or federal civil rights
claim, each new cause of action must be separately numbered and clearly set forth
what defendant is being named in the cause of action.

Plaintiff may file and serve a 2nd amended complaint on or before November 22,
2013. Plaintiff may wish to seek assistance at the Civil Self Help Counter at the
Sacramento Public Law Library.

Response to be filed and served within 20 days from service of the amended pleading,
25 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.