Demurrer (William Stewart)


Case Number: BC537022??? Hearing Date: May 20, 2016??? Dept: A

Mitchell v State of California

DEMURRER

Calendar: 3
Case No: BC537022
Date: 5/20/16

MP: Defendant, State of California
RP: Plaintiff, Marissa Mitchell

ALLEGATIONS IN SECOND AMENDED COMPLAINT:
The Plaintiff was involved in a motor vehicle accident on May 17, 2015. The California Highway Patrol was called and pulled the Plaintiff from her automobile. The Plaintiff was handcuffed and taken into custody. The Plaintiff was then taken to Avanti Hospitals for a brief examination before being released and taken to a police station. The Defendants acted negligently because they failed to treat promptly the Plaintiff?s injuries, which included three fractured ribs, a punctured lung, back injuries, lacerations under the left arm, and neck trauma.

CAUSES OF ACTION IN SECOND AMENDED COMPLAINT:
1) Negligence
2) Excessive Force
3) Failure to Discharge Mandatory Duty
4) Dangerous Condition
5) Dangerous Condition
6) Injury to Prisoner
7) Assault and Battery

RELIEF REQUESTED:
Demurrer to 1st, 3rd, 4th, 5th, 6th, and 7th causes of action.

DISCUSSION:
This hearing concerns the demurrer of the Defendant, State of California, to the first, third, fourth, fifth, sixth, and seventh causes of action in the Second Amended Complaint.

An initial issue is that the Plaintiff filed a Third Amended Complaint on May 6, 2016 without leave of Court. Further, a review of the Defendant?s meet and confer declaration reveals that when the Defendant?s attorney, Raymond Fitzgerald, attempted to contact the Plaintiff?s attorney, Rosanna Mitchell, the Plaintiff?s attorney never returned the telephone call. Finally, the Plaintiff did not file any opposition papers to the Defendant?s demurrer.
First, any pleading filed without leave of Court is subject to a motion to strike, either by the defendant or on the Court’s own motion. Leader v. Health Industries of America, Inc. (2001) 89 Cal. App. 4th 603, 612. The Court, by virtue of its inherent power to prevent abuse of its processes, may strike an amended complaint “filed in disregard of established procedural processes,” and may strike an amended pleading “because no request for permission to amend was sought.” Id. at 613. Since the Plaintiff did not obtain leave before filing the Third Amended Complaint, the Court will strike it.

Second, a review of the Defendant?s papers reveal that there are grounds to each cause of action because the Plaintiff did not identify a statute that imposes liability on the Defendant. In order state a cause of action for government tort liability, every fact essential to the existence of statutory liability must be pleaded with particularity, including the identity of the statute. Zuniga v. Housing Authority (1995) 41 Cal. App. 4th 82, 96. Since the statute is an essential element of any cause of action against a public entity, the Plaintiff must identify the statute in each of her causes of action.

The first cause of action for negligence cites to Civil Code section 3294, which concerns punitive damages. Further, Government Code section 818 states that the Defendant, State of California, is not liable for damages under Civil Code section 3294. Since the first cause of action does not identify any statute creating liability for the alleged negligence, it is a common law claim that cannot be directed against a public entity. Accordingly, the Court will sustain the demurrer to the first cause of action.

The second cause of action is not directed at the moving Defendant.

The third cause of action for failure to discharge a mandatory duty does not identify any statute that imposes a mandatory duty. Instead, the Plaintiff identified only Government Code section 815.6, which states that a public entity is liable when it fails to discharge a mandatory duty ?imposed by an enactment that is designed to protect against the risk of a particular kind of injury?. A cause of action for breach of a mandatory duty must specifically allege the applicable statute or regulation that imposes the alleged mandatory duty. Cerna v. City of Oakland (2008) 161 Cal. App. 4th 1340, 1349. The Plaintiff did not identify a statute that imposed a mandatory duty on the Defendant. Accordingly, the Court will sustain the demurrer to the third cause of action.

The fourth and fifth causes of action are for a dangerous condition on public property, which may be brought against a public entity under Government Code sections 835. Liability is imposed only when there is some defect in the property itself and a causal connection is established between the defect and the injury. Zelig v. County of Los Angeles (2002) 27 Cal. 4th 1112, 1135 to 1138. A review of the fourth and fifth causes of action reveal no allegations of a dangerous condition on real property owned or managed by the Defendant. Instead, the Plaintiff alleges that a police officer?s actions or omissions were a dangerous condition on California?s highways, the patrol vehicle, and the local jail. Since these allegations do not identify a dangerous condition on public property, they do not plead a claim under Government Code section 835. Accordingly, the Court will sustain the demurrers to the fourth and fifth causes of action.

The sixth cause of action for injury to a prisoner identifies Government Code section 844.6(d). Section 844.6(a) states that a public entity is not liable for an injury to any prisoner unless there is an exception identified in section 844.6 and sections 814, 814.2, 845.4, and 845.6 or in Penal Code sections 3500 et seq. For example, section 844.6(c) states that recovery may be permitted when the injury resulted from a dangerous condition on public property. The Plaintiff does not identify any exception section 844.6.
Instead, as noted above the Plaintiff identifies section 844.6(d). This subsection states that a public employee may be liable for injury caused by the employee?s negligence or wrongful act. Further, it states that the public entity is not required to pay any judgment, compromise, or settlement of the claim involving the public entity. There is no language in section 844.6 that imposes a duty on the Defendant.
Accordingly, the Court will sustain the demurrer to the sixth cause of action.

The seventh cause of action for assault and battery cites to Civil Code section 333, which does not exist, and to Civil Code section 3294, which concerns awards of punitive damages. As noted above, the Defendant is not liable for punitive damages. Since the seventh cause of action does not identify any statute creating liability for the alleged assault and battery, it is a common law claim that cannot be directed against a public entity. Accordingly, the Court will sustain the demurrer to the seventh cause of action.

Therefore, the Court will sustain the demurrers to the first, third, fourth, fifth, sixth, and seventh causes of action. This is the Plaintiff?s third attempt to plead her claims. When the Defendant attempted to meet and confer about the defects, the Plaintiff declined to respond. Since the Plaintiff has not been able to plead her claims in three different pleadings, and failed to meet and confer about the claims, it does not appear to be reasonable possible for the Plaintiff to correct the defects by amendment.
Further, California law imposes the burden on the Plaintiff to demonstrate the manner in which she can amend her pleadings to state her claims against the Defendant. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff did not file any opposition papers and did not identify any method by which she can plead her causes of action.
Accordingly, the Court will not grant leave to amend.

RULING:
Sustain demurrers to first, third, fourth, fifth, sixth, and seventh causes of action without leave to amend.