2013-00140551-CU-DF

Larry Wimberly vs. Sheila Kearney

Nature of Proceeding: Hearing on Demurrer

Filed By: Paul, Jonathan B.

Defendants’ Demurrer to Self-represented Plaintiff’s Second Amended Complaint is
SUSTAINED, with and without leave to amend.

Plaintiff’s form Second Amended Complaint sets forth 21 separate form causes of
action for General Negligence against defendants County of Sacramento, DHHS,
CPS, Sheila Kearney, Yong Ueda, Lisa Boulger, Sheryl Matranga, Michelle Callejas
and Ann Edwards, each of whom are employees of the aforementioned public entities.

st nd rd th th th th th th th th th th th
Defendants demur to the 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 15
th
and 19 causes on action, on the grounds that they fail to set forth facts sufficient to
constitute a cause of action.

The facts alleged against defendants are that they intentionally, deliberately, with
knowledge of the falsity of the statements made, slandered plaintiff, accusing him of
child molestation and of giving his daughter syphilis in the process; that he kicked the
mother of his children in the stomach when she was pregnant. These statements were
alleged to have been made with actual malice, premeditation and deliberation and with
reckless disregard for their untruth.

Defendants are also alleged to have knowingly and intentionally conspired to victimize
plaintiff by engaging in computer fraud; and to have knowingly, willfully and
intentionally conspired to deprive plaintiff of his civil rights.

The basic elements of a negligence cause of action are: (1) the defendant had a legal
duty to conform to a standard of conduct to protect the plaintiff, (2) the defendant failed
to meet this standard of conduct, (3) the defendant’s failure was the proximate cause
or legal cause of the resulting injury, and (4) the plaintiff was damaged. Ladd v. County
th
of San Mateo (1996) 12 Cal.4 913, 917.

The essence of negligence is carelessness or inadvertence. Blickman Turkus, LP v.
MF Downtown Sunnyvale, LLC (2008) 162 Cal. App. 4th 858, 890.
The conduct alleged in the SAC is not careless or inadvertent, but intentional, as
defendants are alleged to have acted intentionally, deliberately or knowingly.

st nd rd th th th th th th th th th th th
The demurrer to the 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 15 and 19
th causes of action is therefore sustained, with leave to amend. Plaintiff shall file a
Third Amended Complaint alleging two Intentional Torts of slander and libel, together
th th th th th st
with the remaining negligence causes of action (14 , 16 , 17 , 18 , 20 and 21 ) only,
not later than Monday, June 30, 2014. The responsive pleading is due filed and
served not later than 20 days thereafter.

Moving party shall give notice.

Item 6 2013-00140551-CU-DF

Larry Wimberly vs. Sheila Kearney

Nature of Proceeding: Motion to Strike

Filed By: Paul, Jonathan B.

Defendants’ Motion to Strike the Punitive Damage Allegations from Self-represented
Plaintiff’s Second Amended Complaint is GRANTED, with and without leave and
without leave to amend.

Plaintiff’s form Second Amended Complaint sets forth 21 separate form causes of
action for General Negligence against defendants County of Sacramento, DHHS,
CPS, Sheila Kearney, Yong Ueda, Lisa Boulger, Sheryl Matranga, Michelle Callejas
and Ann Edwards, each of whom is an employee of the public entities.

Defendants move to strike the punitive damage allegations on the grounds that
punitive and exemplary damages may not be recovered for negligence or against a
public entity defendant. Civil Code, sec. 3294, Govt. Code, sec. 818.

Mere negligence, even gross negligence is not sufficient to justify an award of punitive
damages. Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891, 894. As plaintiff’s Second
Amended Complaint alleges only 21 causes of action for negligence, the motion to
strike is granted.

Government Code, sec. 818 sets forth the immunity from punitive damages expressly
for public entities. Punitive damages may not be alleged against the entity defendants
County of Sacramento, DHHS or CPS. No leave to amend is granted as to the public
entities.

However, Section 818 setting forth the immunity from punitive damages expressly
pertains only to public entities. There is no corresponding immunity provision
pertaining to public employees. (Govt. Code, sec. 820(a)) Thus, a public employee
may be liable for punitive damages like a private person, but unlike a public entity
which is specifically immune. Runyon v. Superior Court (1986) 187 Cal. App. 3d 878,
881.

As the Court has concurrently sustained the demurrer, with leave to amend to add
causes of action for intentional tort, plaintiff may have leave to file and serve a Third Amended Complaint to attempt to allege punitive damages, only as against the
individual defendants for intentional torts only not later than Monday, June 30, 2014.
The responsive pleading is due filed and served not later than 20 days thereafter.

Moving party shall give notice.