Case Name: Michael Richmond, Jr. v. Alfonso Guzman, et al.
Case No.: 2013-1-CV-255579

I. Background

This is a personal injury lawsuit. Plaintiff Michael Richmond, Jr. (“Plaintiff”) alleges he was injured while participating in a recruitment and training program for jail officers put on by the Sheriff’s Office of defendant the County of Santa Clara (the “County”). (First Amended Complaint (“FAC”), ¶¶ 16-17, 24.) Plaintiff alleges defendant Alfonso Guzman (“Guzman”), the sheriff’s deputy training him, grabbed him from behind during a training run, threw him into a chain link fence, and pinned his arms and legs to the fence while yelling profanities at him. (FAC, ¶¶ 2, 24-26.) The incident left Plaintiff’s shoulder partially dislocated. (FAC, ¶¶ 24, 32-33.)

Shortly after the incident, when the recruits had returned to the training classroom, Guzman directed Plaintiff to join him in a neighboring classroom at which time he continued to berate and scream profanities at Plaintiff, blaming him for the incident. (FAC, ¶¶ 27-29.) Plaintiff told Guzman he needed to leave, but Guzman stood in his way and blocked the door to the classroom. (FAC, ¶ 29.) Guzman told Plaintiff he could not leave until he admitted that he was at fault; Plaintiff eventually relented, told Guzman he was right, and was allowed to leave. (FAC, ¶ 30.)

Eventually, in January 2013, Plaintiff completed his training and began working at Elmwood Correctional Facility. (FAC, ¶¶ 37-38.) Plaintiff then learned from other correctional officers that Guzman, who had since been removed from the training program and reassigned to his position as an officer at the main jail, had a long history of abusing recruits, which the County was aware of. (FAC, ¶¶ 36-38.)

Plaintiff submitted an administrative claim to the County in March 2013, which it subsequently rejected. (FAC, ¶¶ 39-40.) Plaintiff thereafter commenced this lawsuit. In the operative FAC, Plaintiff asserts causes of action against Guzman and the County for: (1) assault and battery; (2) false imprisonment; (3) defamation; (4) invasion of privacy; (5) negligent supervision and retention; and (6) intentional infliction of emotional distress.

Currently before the Court is the County’s demurrer to the FAC on the ground of uncertainty and to the sixth cause of action on the ground of failure to state facts sufficient to constitute a cause of action and its motion to strike general factual allegations in the pleading as well as punitive damages allegations.

II. Demurrer

A. FAC

The County demurs to the FAC on the ground of uncertainty. A party may demur on the ground of uncertainty to challenge a pleading as uncertain, ambiguous, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.)

The County argues the FAC is uncertain because Plaintiff included general, prefatory allegations that it ratified Guzman’s conduct, and it cannot tell whether these allegations are intended as general, prefatory allegations or as “a cause of action against [it] for ratification. . . .” (Mem. of Pts. & Auth. at p. 5:13-14.) In other words, the County’s position is that “[t]he FAC is uncertain and ambiguous as to whether these allegations. . . are indeed general allegations. . . .” (Mem. of Pts. & Auth. at p. 5:17-18.)

Plaintiff clearly denominates the causes of action asserted in the caption and body of the pleading. The causes of action asserted are for assault and battery, false imprisonment, and intentional infliction of emotional distress. Additionally, as the County acknowledges in its memorandum of points and authorities, the allegations causing its confusion are specifically identified as “general allegations” and preface the causes of action actually asserted. (See FAC, ¶¶ 10, 14, 18, 21, 34, 36.) Plaintiff does not identify these allegation as an independent cause of action. Accordingly, the County’s assertion that it cannot tell whether these allegations are general, background allegations or a cause of action is unreasonable.

Additionally, the County’s assertion that it cannot tell whether the allegations constitute a cause of action for ratification is without merit because there is no recognized cause of action for “ratification.” (See Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169.) Ratification is a theory of liability. (Ibid.) “As an alternate theory to respondeat superior, an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort.” (Ibid.) “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” (Ibid.) Significantly, the County does not actually argue there is a lack of clarity with respect to whether Plaintiff asserts the first, second, or sixth causes of action against it based on a ratification theory. Accordingly, the County does not demonstrate Plaintiff’s ratification allegations otherwise make unclear one of the asserted causes of action.

In conclusion, the County does not demonstrate the FAC is so incomprehensible it cannot reasonably respond. Consequently, the County does not substantiate its demurrer to the FAC on the ground of uncertainty, which is therefore OVERRULED.

B. Sixth Cause of Action

The County demurs to the sixth cause of action for intentional infliction of emotional distress on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) A demurrer on the ground of failure to state facts sufficient to constitute a cause of action tests the legal sufficiency of the pleading. (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 122.) For purposes of a demurrer, a court assumes the truth of the factual allegations in the pleading, but not the truth of legal conclusions, to determine whether a cause of action has been stated under any legal theory. (Ibid.) “If the plaintiff fail[s] to plead [ ] any essential element of a particular cause of action” the demurrer is sustainable. (Ibid.)

The County argues Plaintiff does not state a cause of action against it because he does not allege a statutory basis for liability. Its argument is not a model of clarity. It appears to be arguing, as it did in its motion for judgment on the pleadings, that Plaintiff must actually cite the particular statute upon which he is relying in order to state a cause of action against it.

In general, causes of action asserted against a government entity must be pleaded with particularity because they are statutory in nature. (See Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) “Every fact essential to the existence of statutory liability must be pleaded.” (Ibid.) Significantly, the County does not identify any case in which a court explicitly concluded a plaintiff must cite a particular statute to plead a statutory claim with particularity. Nevertheless, it is necessary for Plaintiff to identify a statutory basis for liability in the pleading so the County and the Court can determine whether he alleges facts essential to the existence of statutory liability. Consequently, the Court reiterates that Plaintiff must identify the statutory basis for liability in the pleading in order to state a cause of action against the County. (See Order Re: Mot. for Judg. on the Plead. at p. 14:2-5.)

In reaching this conclusion, the Court notes the County’s liability appears to be based on Government Code section 815.2, which “imposes upon public entities vicarious liability for the tortious acts and omissions of their employees, and makes it clear that in the absence of statute a public entity cannot be held liable for an employee’s act or omission where the employee himself or herself would be immune.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1461.) Out of an abundance of caution, and because the County does not actually argue there is no statutory liability as a general matter, the Court will give Plaintiff an additional opportunity to amend his pleading and identify a statutory basis for liability.

For these reasons, the County’s demurrer to the sixth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED with 10 days’ leave to amend.

III. Motion to Strike

The County moves to strike general factual allegations in the pleading as well as punitive damages allegations. It filed a request for judicial notice in support of its motion.

A. Request for Judicial Notice

The County requests judicial notice of two administrative claims Plaintiff submitted to it. A “court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368, fn. 1, citing Evid. Code, § 452, subd. (c).) Thus, the Court may take judicial notice of the existence and contents of the two administrative claims. The County’s request for judicial notice is therefore GRANTED.

B. General Factual Allegations

The County first moves to strike paragraphs 23, 38, 41, 42, and 43 as irrelevant. A court may strike irrelevant matter included in a pleading pursuant to Code of Civil Procedure section 436, subdivision (a). An irrelevant matter is an immaterial allegation that is not essential to the statement of a claim or is “neither pertinent to nor supported by an otherwise sufficient claim [ ].” (Code Civ. Proc., § 431.10.)

In paragraph 23, Plaintiff describes an incident in which Guzman made recruits put their faces in a sand box and thereafter yelled profanities while kicking or stepping on one of the recruits. Plaintiff does not allege he participated in or was the recruit Guzman injured in the sand box. Furthermore, Plaintiff does not seek to recover damages for the sand box incident; Plaintiff seeks damages for the injuries he sustained during the fence incident and bases the first, second, and sixth causes of action thereupon. (See FAC, ¶¶ 45-46, 50-51, 58.) Nevertheless, paragraph 23 is not irrelevant because Plaintiff alleges the sand box incident was reported to supervising members of the Sheriff’s Office who thereafter blamed the victim and took no remedial action, which is material and pertinent to whether the County knew about Guzman’s conduct and ratified it. Consequently, paragraph 23 may not be stricken as irrelevant.

In paragraph 38, Plaintiff alleges he learned from other jail staff that the County knew about Guzman’s conduct for a long time prior to his training and had a policy and practice of allowing it to continue. As with paragraph 23, this allegation pertains to the County’s knowledge and intent. Thus, paragraph 38 may not be stricken as irrelevant.

The allegations in paragraphs 41, 42, and 43 pertain to causes of action previously asserted against Ruth Cote, which have since been dismissed from this action. These allegations are not essential or pertinent to any of Plaintiff’s remaining claims against Guzman or the County. Plaintiff does not dispute this in opposition to the motion. Thus, paragraphs 41, 42, and 43 may stricken as irrelevant.

To summarize, paragraphs 41, 42, and 43, but not paragraphs 23 and 38, may be stricken as irrelevant.

The County also argues that paragraph 23 should be stricken “because it improperly alleges a factual basis for recovery beyond plaintiff’s government tort claim.” (Mem. of Pts. & Auth. at p. 4:15-16.)

As a preliminary matter, the County does not identify a particular statutory basis for striking paragraph 23. Instead, the County repeatedly states a claim based on an injury not disclosed in an administrative claim is subject to demurrer. (Mem. of Pts. & Auth. at pp. 4:23-25, 5:19-21.) The County is correct that a “complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.” (Stockett v. Assn. of Cal. Water Agencies Joint Powers Ins. Authority (“Stockett”) (2004) 34 Cal.4th 441, 447.) But “[a] motion to strike is not the appropriate vehicle for raising defects properly raised by demurrer.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) Accordingly, the County’s decision to raise this defect by motion to strike is procedurally anomalous. More significantly, this procedural irregularity belies a substantive problem with the County’s argument.

For context, before filing a civil action for damages against a public entity, a plaintiff must lodge an administrative claim with the entity that sets forth “[a] general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.” (Gov. Code, §§ 910, 945.4.) “A complaint’s fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an ‘entirely different set of facts.’” (Stockett, supra, 34 Cal.4th at p. 447, quoting Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 278.) Only a complete change in the facts alleged, such as a change in the time of the injury or the perpetrator, will be considered an entirely different set of facts. (Stockett, supra, 34 Cal.4th at p. 447.) If a complaint “is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.” (Ibid.)

The Court acknowledges the facts alleged in paragraph 23 are not alleged in either of the administrative claims Plaintiff submitted to the County. Nevertheless, there is a substantive problem with the County’s argument because the sand box incident is not the fundamental injury or “factual basis” for Plaintiff’s causes of action. In actuality, the fence incident Plaintiff disclosed to the County in his first administrative claim is the factual basis for his causes of action. As explained above, the description of the sand box incident pertains to the County’s knowledge. Consequently, paragraph 23, which provides a fuller exposition of the circumstances surrounding the fence incident, does not create any impermissible variance between Plaintiff’s administrative claim and the causes of action asserted. The County does not cite any analogous cases to support its argument, which is thus unsubstantiated. Incidentally, if the sand box incident was the factual basis for the causes of action asserted, the County presumably would have demurred on the basis the causes of action were predicated on conduct beyond the scope of that disclosed in the administrative claims. In conclusion, paragraph 23 may not be stricken as improper.

The County does not advance any other arguments. Accordingly, for the reasons set forth above, paragraphs 41, 42, and 43 may be stricken as irrelevant and paragraphs 23 and 38 may not be stricken.

C. Punitive Damages Allegations

The County moves to strike Plaintiff’s claim for punitive damages in the prayer for relief and related allegations in the FAC. (FAC at p. 15:12; FAC, ¶¶ 48, 53, 61.) If a claim for punitive damages is not properly pleaded, the claim and/or related allegations may be stricken. (Grieves v. Super. Ct. (1984) 157 Cal.App.3d 159, 164.) The County argues the punitive damages claim and related allegations are improper because punitive damages may not be awarded against a public entity. The County is correct that “[a] plaintiff who alleges injury caused by a public entity may be entitled to actual damages for that injury, but not punitive damages.” (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 145-46, citing Gov. Code, § 818.) With that said, the claim and related allegations do not pertain exclusively to the County, they pertain to Guzman as well. Accordingly, the claim for punitive damages and related allegations in paragraphs 48, 53, and 61 may be stricken with respect to the County only.

D. Conclusion

For the reasons set forth above, the County’s motion to strike is GRANTED IN PART and DENIED IN PART. The motion is granted with respect to paragraphs 41, 42, and 43 and, as to the County only, paragraphs 48, 53, 61 and the claim for punitive damages. The motion is denied with respect to paragraphs 23 and 38 and with respect to the claim for punitive damages and related allegations in paragraph 48, 53, and 61 to the extent they pertain to Guzman.