Case Number: KC066353    Hearing Date: July 21, 2014    Dept: O

Plummer v. Jones, et al. (KC066353)

Defendants County of Los Angeles and Jones’s MOTION FOR JUDGMENT ON THE PLEADINGS

Respondent: Plaintiff Plummer (in pro per)

TENTATIVE RULING

Defendants County of Los Angeles and Jones’s motion for judgment on the pleadings is GRANTED. The court will hear from Plaintiff regarding any circumstances warranting leave to amend.

JUDICIAL NOTICE is taken of Defendants’ Exhibits A-F. (Ev. Code 452(c).). Plaintiff’s objections are overruled.

1st CAUSE OF ACTION: Violation of CC 46:
TORT CLAIMS ACT: No 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. (Gov. Code 945.4.) The Tort Claims Act applies to both tort and contract claims against state and local public agencies. (See Gov. Code 905, 905.2, 945.4; See also Baines Pickwick Ltd. v. City of Los Angeles (1999) 72 Cal.App.4th 298, 303 – 304.) A plaintiff may not include causes of action in their complaints that have not been fairly reflected in the written claim submitted to public entities. (Fall River Joint Unified Sch. Dist. v. Superior Court (1988) 206 Cal. App. 3d 431, 434.) The general rule under the Tort Claims Act is that any party with a claim for money or damages against a public entity must first file a claim directly with that entity; only if that claim is denied or rejected may the claimant file a lawsuit. (City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894, 898.) The claim must include: (1) the date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted; (2) a general description of the injury, damage or loss incurred; and (3) the name or names of the public employee or employees causing the injury if known. (Blair v. Superior Court (1990) 218 Cal. App. 3d 221, 224.) A public entity’s failure to act within 45 days of receipt of the claim may be deemed as a rejection of the claim. (Cory v. City of Huntington Beach (1974) 43 Cal.App.3d 131, 133-34; Gov. Code 912.4.)

Plaintiff has presented no evidence that he presented a proper claim regarding the 9/26/12 incident, involving the alleged defamatory statement. The only claims that apparently exist, and are produced by Defendant, are claims relating to incidents occurring on 12/4/12, June 2013, and 11/1/13-3/17/14. Although the latter claim spans a period that includes 9/26/12, the claim is directed against Palmcrest Grand Residential Memory Care for personal injury to Haughton, not Plaintiff.

2nd CAUSE OF ACTION: VIOLATION OF USC 1983:
“In order to fall outside the scope of U.S. Const. amend. I protection, an alleged defamatory statement must contain a provably false factual connotation. Thus, in reviewing a defamation claim, a court must first ask the threshold question: Could a reasonable factfinder conclude that the contested statement implies an assertion of objective fact. First, the court looks at the statement in its broad context, which includes the general tenor of the entire work, the subject of the statements, the setting, and the format of the work. Next it turns to the specific context and content of the statements, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation. Finally, it inquires whether the statement itself is sufficiently factual to be susceptible of being proved true or false…. A 42 U.S.C.S. § 1983 defamation-plus claim requires an allegation of injury to a plaintiffs reputation from defamation accompanied by an allegation of injury to a recognizable property or liberty interest. There are two ways to state a cognizable § 1983 claim for defamation-plus: (1) allege that the injury to reputation was inflicted in connection with a federally protected right; or (2) allege that the injury to reputation caused the denial of a federally protected right. (Crow v. County of San Diego, 608 F.3d 406, 444 (9th Cir. 2010).) “The “stigma” resulting from the defamatory character of the posting was doubtless an important factor in evaluating the extent of harm worked by that act, but we do not think that such defamation, standing alone, deprived Constantineau of any “liberty” protected by the procedural guarantees of the Fourteenth Amendment.” (Paul v. Davis, 424 U.S. 693, 709 (1976).)

Even taking Plaintiff’s allegation as true, i.e. Jones stated to the residents who were gathered at the property that Mrs. Haughton was being removed because Plaintiff had neglected her, Plaintiff has not satisfied the defamation-plus test, which requires that the injury was inflicted in connection with a federally protected right.

QUALIFIED IMMUNITY:
“To determine whether a government employee is entitled to qualified immunity, a court uses a two-part test. First, it must determine whether, viewed in the light most favorable to the plaintiff, the government employees violated the plaintiff’s constitutional rights. Then, if it determines that a constitutional violation has occurred, the court must determine whether the rights were clearly established at the time of the violation.” (Crow v. County of San Diego, 608 F.3d 406, 427 (9th Cir. 2010).)

As explained above, even viewed in the light most favorable to the plaintiff, the allegations fail to state a claim for violation of Plaintiff’s constitutional rights.

Motion is GRANTED.