Case Number: BS146332    Hearing Date: September 04, 2014    Dept: 82

Brian Joseph Barry
v.
Los Angeles County Sheriff’s Department, et al.

Tentative Decision on Motion for Judgment on the Pleadings: Denied

Petitioner Brian Joseph Barry (“Petitioner”) filed this lawsuit against Respondents County of Los Angeles and its Sheriff’s Department (“COUNTY”) to correct and update his arrest record. Specifically, he alleges that the COUNTY improperly originated and disseminated his inaccurate and incomplete arrest record despite the fact that no accusatory pleading was ever filed against him as a result of his 1994 arrest. Petitioner alleges that the COUNTY has statutory duties to issue him a certificate of release, a certificate of detention, and a “detention only” disposition report which must be timely furnished to the appropriate state and federal law enforcement agencies.

Before the Court is Petitioner’s motion for judgment on the pleadings. Petitioner argues that he is entitled to a judgment in his favor because the operative pleading states facts sufficient to constitute a cause or causes of action against the COUNTY, and the COUNTY’s answer does not state facts sufficient to constitute a defense to the Amended Petition. The motion is denied for the following reasons:

Statement of the Case

On January 7, 1994, an officer with the Los Angeles County Sheriff’s Department West Hollywood Station arrested Petitioner in connection with an alleged hit-and-run car accident that occurred in or near the City of West Hollywood on January 6, 1994. Amended Petition ¶12. Based on statements by the parties and witnesses to the accident, Officer Boog (ID #248058) prepared a Traffic Collision Report identifying Petitioner as the alleged hit-and-run driver. Amended Petition ¶13.

On February 17, 1994, Assistant District Attorney Pamela Mills conducted an “office hearing” interview attended by Petitioner. The alleged victim of the hit-and-run accident failed to appear for the interview. Amended Petition ¶14. Following the interview, Petitioner was informed that the Los Angeles District Attorney’s Office had declined to file any criminal charge against Petitioner, that his arrest on January 7, 1994 should never have occurred, and that Petitioner’s bail would be refunded in full. Amended Petition ¶15. Despite these findings, Petitioner alleges, the COUNTY has failed and refused to issue a certificate of release as required by Penal Code section 849.5 or a detention certificate as required by Penal Code section 851.6, despite multiple requests by Petitioner in person and in writing. Amended Petition ¶¶18-19. As a result, Petitioner’s arrest record remains inaccurate and incomplete. Amended Petition ¶20. Finally, Petitioner alleges that the COUNTY has failed to issue and furnish a “detention only” disposition report to the state and federal law enforcement agencies, including the database of the FBI’s National Crime Information Center (“NCIC”), as required by Penal Code section 1115. Amended Petition ¶22.

Petitioner alleges that on July 15, 2013 he was detained by agents of the Canadian Border Services Agency (“CBSA”) and extensively interrogated regarding the arrest records that the COUNTY had transmitted and submitted to the NCIC. Amended Petition ¶24. The CBSA agents aggressively probed Petitioner about the absence of any disposition report in the NCIC database. Petitioner alleges that the incomplete and inaccurate arrest records that the COUNTY has failed and refuses to correct has subjected Petitioner to invasive and unwarranted detentions, interrogations and intimidation by foreign government agents at international borders, which poses a substantial and undue burden on his right to international travel. Amended Petition ¶24.

Petitioner also alleges that, until his recent detention and interrogations in July 2013, he was completely unaware of the existence of his arrest records in the NCIC database, much less the inaccuracies and incompleteness of those records. As a private citizen, Petitioner alleges he had no access to those records, so could not have reasonably discovered them earlier. Amended Petition ¶25. Shortly after his return to Los Angeles, Petitioner met with Sergeant Famble of the West Hollywood Station to discuss the potential options to update his arrest records. Amended Petition ¶26. After not hearing back from Sergeant Famble, Petitioner returned to West Hollywood Station in late July 2013 and met with Sergeant Famble, who stated that “we can’t find any information related to an arrest of you.” Amended Petition ¶26. Sergeant Famble also told Petitioner that only the FBI could provide him with information regarding his arrest record in the NCIC database. Amended Petition ¶26. When Petitioner made inquiry from the FBI in late July 2013, they informed him that only the arresting agency is authorized to issue and submit a disposition report to the FBI. Amended Petition ¶28.

In late July 2013, Petitioner, a frequent international traveler, applied for enrollment in the Global Entry Program administered by the U.S. Customs and Border Protection (“CBP”). Amended Petition ¶29. The Global Entry Program allows expedited screening, processing and clearance for approved, low risk travelers upon arrival in the United States. During an in-person interview at CBP’s enrollment center in Los Angeles, a DHS agent summarily denied Petitioner’s application solely because the FBI’s NCIC database indicates that the information and data submitted by the COUNTY shows Petitioner was “arrested” on July 7, 1994. Amended Petition ¶30. The DHS agent further informed Petitioner that the COUNTY had submitted no disposition report to the NCIC database.

In this lawsuit, Petitioner seeks a peremptory writ of mandate directing the COUNTY to: (a) issue a certificate of release and certificate of detention to Petitioner and submit a “detention only” disposition report to the proper state and federal law enforcement agencies, including the FBI; and (b) delete from the arrest records maintained by the COUNTY and by any state and federal criminal justice agencies (including the FBI) any reference to the Sheriff’s Department’s action against Petitioner on January 7, 1994 as an “arrest.” In the alternative, Petitioner requests that the Court issue an Order to Show Cause why the Court should not issue such a writ and thereafter issue a peremptory writ compelling the COUNTY to perform its public duties as set forth in the Amended Petition.

Summary of Applicable Law

A motion for judgment on the pleadings involves the same type of procedures that apply to a general demurrer. Richardson-Tunnell v. School Ins. Program for Employees, (2007) 157 Cal.App.4th 1056, 1061. “The grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.” Richardson-Tunnell v. School Ins. Program for Employees, (2007) 157 Cal.App.4th 1056, 1061 (2007).

Motions for judgment on the pleadings are usually made by defendants. In such instances the motion is the equivalent of a general demurrer, and on appeal from the judgment the appellate court will assume the truth of all facts properly pleaded in the complaint. Stockton Newspapers, Inc. v. Redevelopment Agency, (1985) 171 Cal.App.3d 95, 99. Motions by a plaintiff for judgment on the pleadings, which are less common, are the equivalent of a demurrer to an answer, and the standard of review is obverse: the court will assume the truth of all facts properly pleaded in the answer and will disregard the controverted allegations of the complaint. See MacIsaac v. Pozzo, (1945) 26 Cal.2d 809, 812-813; Sebago, Inc. v. City of Alameda, (1989) 211 Cal. App. 3d 1372, 1379-1380.

Where the answer, fairly construed, suggests that the defendant may have a good defense, a motion for judgment on the pleadings should not be granted. Barasch v. Epstein, (1957) 147 Cal. App. 2d 439, 442-443. “The moving party admits the untruth of his own allegations insofar as they have been controverted, and all such averments must be disregarded whether there is a direct and specific denial or an indirect denial by virtue of affirmative allegations of a contrary state of facts. . . . Every allegation affirmatively pleaded in the answer must be deemed true.” Id.

Discussion

Petitioner’s First Amended Verified Petition and Complaint alleges causes of action for: (1) Violation of Penal Code §849.5 (Duty to Issue a Record of Release); (2) Violation of Penal Code §851.6 (Duty to Issue a Detention Certificate); and (3) Violation of Penal Code §1115 (Duty to Furnish a Disposition Report to the FBI). Petitioner contends that his Amended Petition states sufficient facts to support the causes of action alleged and that the COUNTY’s unverified answer fails to state facts sufficient to constitute a defense to his claims. Specifically, Petitioner argues that the COUNTY’s unverified answer contains no “facts” and alleges only boilerplate affirmative defenses. Petitioner’s Motion at pp. 9-10. The COUNTY argues that the motion is premature and improper and would deny it a trial. The COUNTY also argues that its answer is not required to be verified and that Petitioner’s causes of action lack merit on the face of the pleading.

It is undisputed that the COUNTY’s answer contains a general denial of all allegations in the operative petition and sets forth twenty-four affirmative defenses. Answer to Amended Petition, ¶¶1-25. As argued by the COUNTY, Code of Civil Procedure section 446 exempts public entities and officers from having to verify their answers even if the complaint or petition against them is verified. Therefore, the COUNTY’s general denial of each and every allegation in Petitioner’s Amended Petition is proper and, for purposes of a motion for judgment on the pleadings, must be deemed true. See Sebago, Inc. v. City of Alameda, (1989) 211 Cal. App. 3d 1372, 1380.

Petitioner’s argument that the COUNTY’s affirmative defenses also fail to set forth facts misses the mark. Since Petitioner’s notice of motion states that it is brought because the “answer,” as opposed to any affirmative defense, is defective, the motion is the equivalent of a general demurrer to the entire answer. See Code Civ. Proc. § 1010 (a notice of motion must state in writing the “grounds upon which it will be made”); Taliaferro v. Riddle, (1959) 167 Cal. App. 2d 567, 570 (only the grounds specified in the notice of motion may be considered by the trial court). In fact, to the extent it is appropriate for the Court to go beyond the notice of motion to determine the grounds for Petitioner’s motion, Petitioner states on page 10 of his memorandum of points and authorities that the COUNTY’s “Answer . . . contains a general denial and a slew of boilerplate, conclusory, and bare assertions of affirmative defenses unsupported by any fact.” (Emphasis added). In any event, not all of the COUNTY’s affirmative defenses fail to set forth ultimate facts (see, e.g., Sixth and Eighteenth Affirmative Defenses), and Petitioner’s papers do not address any specific affirmative defense. Put another way, simply asserting that “not a single fact” has been pled in the Answer is an insufficient basis to grant Petitioner’s motion.

Disposition

For these reason, Petitioner’s motion for judgment on the pleadings is denied.

IT IS SO ORDERED.