Case Number: BC533754 Hearing Date: June 13, 2014 Dept: 73

Dept. 73
Rafael Ongkeko, Judge presiding

ADAMS vs. STATE, ET AL. (BC533754)

Counsel for defendants/moving parties: Betty Chu-Fujita (A.G.’s office)
Counsel for plaintiff/opposing party: John Furutani

Defendants’ State of California (CHP) and Marzorini’s demurrer (filed 5/14/14) to complaint is sustained with leave to amend. The motion to strike is moot.

Defendants’ request for judicial notice (filed 5/14/14) is granted.

Plaintiff is given leave to amend to clarify which acts he believes accrued after January, 2013 to bring the allegations within the required 6 months of his tort claim of 10/17/13 (i.e., events on or after 4/17/13). As alleged in the complaint, some, but not all, of the various causes of action accrued in January, 2013.

1st cause of action for violation of civil rights (Civil Code §§ 52.1 and 52.3):
The first cause of action against all defendants appears to have accrued at the initial contact in January, 2013. (¶¶7-8) Plaintiff seeks money or damages for this encounter. There are at least two problems with this claim. The claim presentation appears untimely as this cause of action seeks money or damages beyond plaintiff’s mere claim for damages for the motorcycle under a bailment theory, discussed below. Moreover, the court agrees with defendant’s contention that the conduct alleged falls short of the “threats, intimidation, or coercion” required. There are no allegations that rise to the level either of violence/threats of violence (CC § 52.1(j)) or threats, intimidation, or coercion which are nonviolent, but carry severe consequences. (See cases cited in CACI 3066) The only threat alleged is that an involuntary relinquishment of the motorcycle would result in daily impound fees. Without more, that statement can only be characterized as a ministerial, administrative-type statement that does not rise to the level of a civil rights violation.

No California case has recognized a private right of action under CC § 52.3.

The demurrer is sustained as to the first cause of action.

Second cause of action for conversion. The accrual date for this cause of action was no earlier than the date notice was given to plaintiff that a final decision was made to sell the motorcycle at public auction. The claim appears to have been filed within six months of that date. Though styled as a common law cause of action, this claim now appears to be more appropriately for breach of mandatory duty (Govt. Code § 815.6) under Vehicle Code § 10751, an allegation which requires specific pleading requirements. Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 292. The issue of whether the criminal investigation was an “action or proceeding” is not a proper basis for demurrer at this point in the pleadings. Given the availability of a duty under GC § 815.6, it is premature to sustain the demurrer on possible immunity grounds.
Even if the accrual date was earlier, as of the initial taking of the motorcycle in January, 2013, there is a persuasive line of cases that a claim is not required where a specific piece of property, or damages in lieu of its return, is the basis of the claim. See Hart v. County of Alameda (1999) 76 Cal.App.4th 766, 778-780, and cases cited therein.

The demurrer to the second cause of action is sustained.

Third and fourth causes of action for IIED and NIED. These are derivative of the allegations that arise from the first and second causes of action. Leave to amend is granted accordingly.

The demurrers to the first through fourth causes of action are sustained with 10 days’ leave to amend.

The motion to strike is moot.
Plaintiff is granted leave either to file and serve a writing by 6/23/14 indicating no intent to amend the complaint or to file and serve a first amended complaint by that date. If plaintiff elects the latter, a red-line copy of the amended complaint showing the changes from the previous complaint is to be concurrently provided to defendants. If defendants intend to file a demurrer to the amended complaint, defendants must lodge directly in Dept. 73 the red-line copy of the amended complaint with its demurrer.

Unless waived, notice of ruling by moving parties.