2018-00230043-CU-PO

Frank Lee Dearwester vs. Kimberly Gin, Coroner

Nature of Proceeding: Hearing on Demurrer to the 1st Amended Complaint

Filed By: Whitefleet, John R.

The matter was continued to today’s date from December 20, 2018 for purposes of oral argument only.

Defendant Kimberly Gin’s demurrer to Plaintiff Frank Lee Dearwester’s first amended complaint (“FAC”) is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action.

Oral argument will take place on January 14, 2019.

The Clerk shall fax a copy of the tentative ruling to the litigation coordinator. The litigation coordinator shall provide the tentative ruling to Plaintiff Frank Lee Dearwester, Appearance is required on January 14, 2019.

Plaintiff Frank Lee Dearwester shall be available by COURTCALL, to participate in oral argument on the continuance date.

The Court previously issued a tentative ruling sustaining Defendant’s demurrer without leave to amend. After oral argument the Court gave Plaintiff leave to amend. The FAC is essentially the same as the original complaint and suffers from the same defects as the original. The Court’s ruling on the complaint is equally applicable to the FAC.

Defendant’s Request for Judicial Notice is granted.

The court considered Plaintiff’s untimely served opposition as Defendant was able to file a complete reply.

This case arises from a voluntary dismissal with prejudice by Plaintiff of a prior lawsuit [case #2012-00132490] he brought against the County of Sacramento and Sheriff Scott Jones, under the terms of a settlement. That complaint alleged, inter alia, claims asserting defendants deducted funds from plaintiff’s inmate account “to recover funds incurred during plaintiff’s exercise of his right to ‘Indigent Legal Mail'”; improperly imposed a “fee structure on inmates” (second cause of action); arbitrarily imposed a fee structure [either $1.81 or $2.50] on inmates disguised as a fee for a “Welfare

Kit” (third cause of action); and sought exemplary damages. A dismissal with prejudice is the equivalent of a final judgment on the merits, barring the entire cause of action.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 788, 793; see also Roybal v. Univ. Ford (1989) 207 Cal. App. 3d 1080, 1086 [dismissal need not be based on a settlement with consideration received.]) A dismissal with prejudice is thus the equivalent of a final judgment on the merits and bars subsequent litigation based on the dismissed causes of action. (Boeken, supra, 48 Cal.4th at 793.)

In this new action, against Defendant who was not a party to any of the prior actions, Plaintiff appears to tacitly collaterally attack that settlement by claiming he was somehow disadvantaged because a default that had been initially entered against the Sheriff in the settled case was set aside upon motion of the Sheriff. Plaintiff had requested the County Coroner, Defendant Kimberly Gin, serve the sheriff pursuant to CCP 262.6. In the prior suit, the motion to set aside default was granted on the basis that the defendants [County of Sacramento and Sheriff Jones] had not been properly served by the Coroner. Plaintiff claims that Defendant’s alleged negligent service of process in that prior action somehow denied him “access to the courts” and that it adversely affected his standing in settlement negotiations regarding the active lawsuits

he had previously filed against the County.

The FAC fails to state facts sufficient to constitute a cause of action for general negligence. The setting aside of the default did not deny plaintiff access to the courts. Indeed, it permitted the case to be addressed on the merits.

Plaintiff was not denied access to the courts by the alleged defective service that resulted in the setting aside of the default. Courts have declined to find process servers liable. See e.g. Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236. In that case, the Court determined whether a process server deprived a party of his constitutional due process rights by failing to serve the matter properly, (Id. at p. 1245.) There, an unlawful detainer was instituted against Slaughter and the process server in that matter represented that he personally served Slaughter at his residence. A default judgment was subsequently entered against Slaughter after he was instructed to wait for proper service. After setting aside the default judgment, Slaughter brought suit against the process server for a violation of his due process rights. The court concluded that no such cause of action exists. (See Id. at p. 1246.) The court reasoned that

Slaughter availed himself of the opportunity by law to set aside the default judgment and, more importantly, he was able to obtain a trial on the merits. (Ibid.).

Saliently, Plaintiff has failed to allege facts to support causation or damages in his negligence claim. Causation requires proof that the defendant’s conduct was a ” ‘substantial factor’ ” in bringing about the harm to the plaintiff. (Mitchell v. Gonzales (1991) 54 Cal. 3d 1041, 1052-1053.) A plaintiff cannot recover damages based upon speculation or even a mere possibility that the wrongful conduct of the defendant caused the harm. (Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 702.) Causation may be determined as a matter of law when reasonable persons could not dispute the absence of causation. (Lucas v. County of Los Angeles (1996)
47 Cal. App. 4th 277, 289; Thai v. Stang (1989) 214 Cal. App. 3d 1264, 1273-1274, 263.) Plaintiff was able to seek redress from the Court; indeed, Plaintiff could have effectuated proper service after the defaults were set aside. Plaintiff’s reliance on CCP 262.6 for the proposition that this was his only option for service due to his incarceration is misplaced. Plaintiff could have had any individual over the age of 18 serve the papers after the defaults were vacated. (CCP 414.10.) The setting aside of the defaults did not “determine” anything. As a matter of law, Plaintiff’s “standing” to engage in settlement negotiations in the federal actions or the underlying state court action were not diminished as a result. Moreover, as Plaintiff concedes, he freely and voluntarily dismissed those lawsuits against the County. Plaintiff’s acceptance of that settlement necessarily means he could not have suffered any actual harm or injury as a result of Defendant’s claimed improper service.

The Court notes that the FAC appears to now allege that Defendant’s counsel somehow misrepresented the terms of the settlement by claiming that he would have to address any claim he had against Defendant separately from the three active cases and did not indicate that the settlement would affect his claims against Defendant. These allegations do not affect the above analysis. Defendant was not a party to the actions that were settled and was not a beneficiary of the settlement. If Plaintiff truly believes that the settlements were fraudulent, he must seek relief in the actions in which the settlement was reached. Again, any failure of service could not have diminished his rights to engage in settlement negotiations. The failure to serve did not deprive him of access to the Courts.

A court may sustain a demurrer with or without leave to amend. CCP 472a(c). Leave to amend a defective complaint should be denied where no liability exists under substantive law. Rotolo v San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 321. Where it is apparent that the essential defects of the Complaint cannot be cured by amendment, the demurrer should be sustained without leave to amend. Sackwett v Wyatt (1970) 32 Cal.App.2d 592. Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. Lawrence v Bank of America (1985) 163 Cal.App.3d 431, 436. A demurrer must be sustained without leave to amend absent a showing by plaintiff that a reasonable possibility exists that the defect can be cured by amendment. Blank v Kirwan (1985) 39 Cal.3d 311, 318. The burden of proving such reasonable possibility rests squarely on the plaintiff. Torres v City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1041. Plaintiff has not met that burden.

The Court previously gave Plaintiff leave to amend to cure the defects identified in the Complaint after originally issuing a tentative ruling sustaining the demurrer without leave to amend. While Plaintiff filed the FAC, the fundamental nature of the action and the salient allegations remain the same.

Therefore, as it appears the defects cannot be cured as a matter of law, no leave to amend is granted and the demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action.

Given the above, the Court need not address Defendant’s additional claims that she is immune.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.