30-15-786940

Dillon VS The City of Santa Ana

I. Motion to Quash Service of Summons and Complaint

GRANT.

The City of Santa Ana makes a special appearance on behalf of its employee Robert Cortez and moves to quash service of the summons and Complaint as to Cortez on the ground that he was improperly named as a Doe Defendant when his identity was known to Plaintiffs several months before they ever filed the Complaint.

Plaintiffs filed their Complaint on 5/11/15. Defendants argue correctly that the FAC filed on 8/10/15 admits that in January, February, and March 2015, Plaintiffs exchanges a series of 6 emails with Cortez regarding the matters at issue in the Complaint and FAC.

Defendants argue correctly under CCP 474 the Plaintiffs must actually be ignorant of the Defendant’s name in order to sue him fictitiously as a DOE Defendant. (Optical Surplus Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 783.) Where, as here, Plaintiffs expressly admit that they knew or should have known his identity, their attempt to sue him as a DOE Defendant was improper.

In Opposition, Plaintiff argue that Cortez has consented to this court’s jurisdiction because on 9/18/15 he filed a Demurrer to their Complaint. However, this argument fails. In Reply, the City argues correctly that under CCP 418.10 (e)(1) and 418.10 (a)(1), the filing of a demurrer does not constitute a general appearance if it is timely filed concurrently with a motion to quash, which appears to be the case here.

Plaintiffs also argue that they did not know of Cortez’s “true nature or identity” until 6/12/15, when he filed his declaration in support of the City’s Opposition to the Motion for Preliminary Injunction. (Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1464.) However, this argument strains credulity in light of the fact that Plaintiffs exchanged emails directly with him.

II. Plaintiff’s Motion to Compel Production

DENY Plaintiffs’ motion to compel and the request for monetary sanctions.

The City of Santa Ana argues correctly that third party privacy rights must prevail in this case. Accordingly, the City may produce the medical marijuana lottery applications, but only after redacting all third-party identifying information therein, including addresses, telephone numbers, social security numbers, the names of the persons or organizations filing the applications, etc.

Furthermore, the City argues correctly that the applications may not be produced unless and until a stipulated confidentiality agreement and protective order has first been put into place to protect against public disclosure of the confidential information therein.

This court finds that any privacy concerns or privacy rights may be adequately protected by redacting the confidential information in the applications and by putting in place a stipulated confidentiality agreement and protective order, which limits outside disclosure of the applications themselves. (G.T., Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 755.)

If such an agreement is already in place, then Defendant shall produce further responses, within 10 calendar days after service of notice of this ruling.

If no such agreement is currently in place, then the parties shall meet and confer and agree to mutually acceptable language for a stipulated confidentiality agreement and protective order. The parties shall sign the written agreement on or before 2/02/16. If the parties are unable to agree on the language of the agreement, they may bring an ex parte application, submit the conflicting language, and ask the court to resolve any points of disagreement.

Once the written agreement has been signed by counsel for both parties, Defendant shall have 10 calendar days within which to serve all responsive documents in redacted form.

Under the plain language of CCP 2013.240 (b), it is unclear whether a privilege log must be provided. Normally a privilege log is required where entire documents are being withheld, so that that parties and the court can identify entire documents that have not been disclosed. However, in this instance, where the documents will be produced, albeit with redactions, a privilege log appears to be unnecessary. Accordingly, the court finds that no privilege log need be produced unless Plaintiffs can cite case law on point holding that a privilege log must be produced to identify documents that will be produced with redacted information.

In this case, it would appear to be unnecessary to prepare a privilege log because the documents will be produced and the nature of the redacted information will be clear from the context of the documents.

III. The City’s Demurrer to the First Amended Complaint

The City demurs to the First Amended Complaint filed on 8/10/15 by Plaintiffs Tarune Dillon, John Mendoza, and Ivan Nathanson.

The court OVERRULES the Demurrer in part and SUSTAINS with leave to amend in part, as set forth below. Within 15 calendar days after service of notice of this minute order, Plaintiffs may file a Second Amended Complaint that cures the defects noted below.

All new allegations therein shall be set forth in boldface type so the court and the parties may more readily identify any new language.

A. Immunity for Discretionary Acts

SUSTAINED with leave to amend.

The City demurs to the 2nd and 3rd causes of action for negligent misrepresentation and fraud.

The City argues correctly that under Gov. Code 820.2, its employee Robert Cortez is immune from liability for fraud and negligent misrepresentation. Section 820.2 states that except as otherwise provided by statute, a public employee is not liable for tort injury resulting from the exercise of discretion vested in him or her.

The City argues correctly that Cortez’s personal immunity also shields the City against any vicarious liability under the theory of respondeat superior for his alleged misconduct under Gov. Code 815.2 (b).

Furthermore, the City notes correctly that under Gov. Code 818.8, a public entity is not liable for injury caused by the misrepresentation of its employee, whether or not the misrepresentation is negligent or intentional. This immunity applies to allegations of fraud. (Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335.)

B. 1st COA: Violation of California Due Process

OVERRULED.

The City demurs to the 1st cause of action for violation of California due process.

The City argues that the provisions of the Municipal Code do not violate substantive due process. However, this argument fails and the court need not consider it because Plaintiffs’ claim is based on both substantive and procedural due process violations. By attacking only one aspect of the claim, the City ignores other aspects of the claim which may be valid and may proceed to trial.

It is well-established that it is improper for a defendant to demur to only part of a claim. A general demurrer challenges only the sufficiency of the pleading and it must be overruled if any valid cause of action is pled. A general demurrer does not lie to only part of a cause of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2003) 108 Cal.App.4th 1028, 1046; PH II Inc. v. Superior Court (1995) 33 Cal.App.4th 260, 272.)

Here, in addition to alleging that the municipal code provisions violated their substantive due process rights, Plaintiffs also allege that the City violated their procedural due process rights by ignoring the rules and code provisions or by applying them unfairly to favor some applicants and prejudice other applicants.

The City does not address any of these procedural due process allegations, so the cause of action still stands.

Accordingly, the court need not determine at this stage whether the statue is impermissibly vague or not, because even if the statute is clear and unambiguous, Plaintiffs allege in addition that it was not evenly and fairly applied.

IV. Motion to Strike

A. References to Robert Cortez

The motion to strike references to Defendant Robert Cortez is moot because the court has granted the motion to quash service of summons and complaint on Cortez.

B. Punitive Damages

The City argues correctly that it is immune from liability for punitive or exemplary damages under Gov. Code 818. (City of Newport v. Fact Concerts Inc. (1981) 454 U.S. 247, 261 fn. 21.) Similarly, no punitive damages may be recovered against governmental employees sued in their official capacities.

The motion to strike the request for punitive damages is GRANTED with leave to amend on this ground.