Garcia vs. City of Santa Ana

the parties in the property and orders the partition of the property. (Code Civ. Proc. § 872.720(a).)

Thereafter, the court shall order that the property be divided in accordance with the parties’ interests as determined in the interlocutory judgment. (Code Civ. Proc. § 872.810.) If the court orders sale, the court shall appoint a referee to divide and sell the property. (Code Civ. Proc. § §872.010, 873.020.)

This statutory scheme envisions an interlocutory judgment of partition, and that must come as the result of a trial -- or summary judgment under Code Civ. Proc. § 437c. (See LEG Investments v. Boxler (2010) 183 Cal. App. 4th 484 (reversing denial of, and ordering trial court to grant, plaintiff’s motion for summary adjudication on partition cause of action).)

Although Plaintiff seeks partition of the property at issue by sale through this motion, a partition order can only be made after a trial or dispositive motion determining the parties’ interests and rights. Plaintiff does not provide any authority showing that the relief requested may be granted via a motion at this juncture.

Accordingly, the motion is denied.

The clerk will give notice.

Case Management Conference Off calendar. Court Trial set on 2-26-27 at 9:00 a.m. 7 Garcia vs. City of Santa Ana

2025-01493313 Demurrer to Amended Complaint / Motion to Strike Portions Of Complaint

The demurrer of defendants Tatiana Monroy, Brenda Monroy, Jennifer H. Lopez, and Lawrence G. Lyonss to the first amended complaint (“FAC”) of plaintiff Luis Alexander Deras Garcia is overruled in part and sustained in part with 15 days leave to amend, as stated below.

Defendants’ motion to strike portions of Plaintiff’s FAC is denied in part and granted in part with 15 days leave to amend, as stated below.

Facts Alleged in FAC In his FAC, Plaintiff alleges that he arrived an hour early for his appointment with Defendant Lyonss, Phd (also, “Dr. Lyonss”). Defendants Tatiana Monroy, Brenda Monroyo, and Lopez were in the

office, whom he alleges were employed by Dr. Lyonss and acting in the course and scope of that employment throughout, when he checked in. [FAC, ¶¶ 5-8, 15-19.]

When Tatiana told him he was early, he explained he had had to travel quite a distance so made efforts to be sure not to be late. At that point, she verbally attacked him, asking why he could not speak English. When he questioned whether she was discriminating against him, Tatiana got up from her chair, approached him, and then threw a cup at him and shouted at him to leave. [FAC, ¶¶ 20-22.]

When Plaintiff explained he had driven three hours to see Dr. Lyons due to a work situation, she continued to shout and began pushing and hitting him – and grabbed for his phone because he was recording. As she continued, Plaintiff decided to retreat to his car, where he called the police. [Id., 23-25.]

When the police arrived, Plaintiff told them what happened and showed him the video. The police then spoke with Tatiana, Brenda and Lopez (without Plaintiff there), who told the police that Plaintiff was the aggressor and that he had assaulted Tatiana such that they feared for her life. Plaintiff was then arrested and his car towed The charges were ultimately dismissed but only after he had to engage counsel and incur other costs. Some of his personal property was never returned. [FAC, ¶¶ 26-37.]

Demurrer Legal Standard on Demurrer A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.

On demurrer, a complaint must be liberally construed. Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601. All material facts properly pleaded, and reasonable inferences, must be accepted as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.

A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. People v. Lim (1941) 18 Cal. 2d 872, 883. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616. Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief.

Saunders v. Cariss (1990) 224 Cal. App. 3d 905, 908. A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300).

Discussion

Declaration Filed in Support of Defendants’ Demurrer In support of their demurrer, Defendants have filed a declaration that purports to set out a different course of events than those alleged in Plaintiff’s FAC. This is improper on a pleading motion. The court therefore disregaerd the declaration.

Second Cause of Action for Assault and Battery According to its heading, this cause of action is asserted against Tatiana and Defendant Lyons as her employer. The allegations within the cause of action, however, include Brenda and Lopez. [FAC, ¶¶ 44, 45, 48.]

The elements of an assault cause of action are: (1) defendant acted, intending to cause harmful or offensive contact; (2) plaintiff reasonably believed that he/she was about to be touched in a harmful or offensive manner or (1) defendant threatened to touch plaintiff in a harmful or offensive manner; (2) it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. CACI 1301.

The elements of a battery case of action are: (1) defendant touched plaintiff or caused plaintiff to be touched with intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable

person in plaintiff’s situation would have been offended by the touching. CACI 1300.

Defendants demur on behalf of Brenda, Lopez, and Dr. Lyons on the ground no actions by them are alleged. They further demur on behalf of Dr. Lyons on the asserted ground that not sufficiently alleged respondeat superior – for this argument Defendants rely, at least in part, on facts outside the FAC. For this argument, Defendants rely in part on facts outside the FAC. Despite their purported demurrer for uncertainty, Defendants make no such argument and do not explain what or why a specific portion of this portion of the SAC is uncertain.

Defendant Lyons is alleged to be the other Defendants’ employer – most pertinently Tatiana’s -- and they are alleged to have acted within the course and scope of that employment.

An employer may be vicariously liable under the doctrine of respondeat superior for torts committed by employees: (1) in the course and scope of employment, and (2) if there exists a reasonable relationship between the duties of employment and the conduct causing injury, or (3) the injury was reasonably foreseeable in light of the employer’s business or employee’s job responsibilities.

Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298; Baptist v. Robinson (2006) 143 Cal. App. 4th 151, 161; Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559–60.

“[T]he proper inquiry is not ‘ “whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal.” ’ ” Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 218–219.

Flores v. Autozone West, Inc. (2008) 161 Cal.App.4th 373, 380-382 is particularly instructive here. In that case, an employee whose job involved dealing with customers assaulted a customer after a verbal disagreement. The court of appeal reversed summary judgment in favor of the employer because there was triable issue of fact whether the employee was acting within course and scope of employment. Flores v. AutoZone West, Inc. (2008) 161 Cal. App. 4th 373, 381. See also Heiner v. Kmart Corp. (2000) 84 Cal. App. 4th 335, 339-340, 350 (store security guard’s use of force against complaining customer was “ ‘engendered by’ and ‘arose from’” his employment. Under the Lisa M. standard, no other conclusion could reasonably be drawn.”).

Here, for pleading purposes, Plaintiff has alleged enough for respondeat superior liability. He has alleged that Tatiana Monroy was employed by Dr. Lyons and was acting within the course and scope of her employment. Moreover, the facts of the alleged incident are that their interaction began with her taking a role in Plaintiff’s check-in for an appointment with her employer.

The demurrer to this cause of action as to Defendant Lyons is therefore overruled.

As to Brenda and Lopez, however, the demurrer is sustained.

Plaintiff has alleged no acts by Brenda or Lopez – only that each was present. This is not enough to hold them liable for assault or battery. Nor has Plaintiff sufficiently alleged conspiracy.

The elements of civil conspiracy are (1) the formation and operation of the conspiracy, (2) a wrongful act done in the furtherance of the conspiracy, and (3) the resulting damage to the plaintiff. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.

As to the formation element, two or more persons must agree on a common plan to commit a tortious act. Kidron v. Movie Acquisition Corporation (1995) 40 Cal.App.4th 1571, 1582. The coconspirators must have “actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose.” Ibid.

Third Cause of Action for Violation of Civil Code section 52.1 According to its heading, this cause of action is asserted against Tatiana and the police officers who arrested Plaintiff. Again, though, the internal allegations include Defendants Brenda and Lopez.

The Bane Act, enacted in 1987, prohibits all interference or attempted interference with another’s rights under federal and California law by "threats, intimidation, or coercion." Civ. Code, § 52.1(a). But “[s]peech alone” is not prohibited by the Bane Act unless the “speech itself threatens violence” and the person “against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against” that person or the person’s property and the individual “threatening violence had the apparent ability to carry out the threat.” The Bane Act “does not provide any substantive protections; instead it enables individuals to sue for violations” of constitutional or statutory rights set forth elsewhere when those violations have occurred by “threats, intimidation, or coercion.” Civ.

Code, § 52.1(j); Reynolds v. County of San Diego (9th Cir. 1996) 84 F.3d 1162, 1170.

To state a Bane Act claim, a plaintiff must allege the defendant intentionally interfered with or attempted to interfere with Plaintiff’s civil rights by threats, intimidation, or coercion, and must prove:

1. That by threats, intimidation or coercion, defendant caused plaintiff to reasonably believe that if he exercised his right, defendant would commit violence against him and that defendant had the apparent ability to carry out the threats;

or

That defendant acted violently against plaintiff to prevent him from exercising his right or to retaliate against plaintiff for having exercised his right;

2. That defendant intended to deprive plaintiff of his enjoyment of the interests protected by the right;

3. That plaintiff was harmed; and

4. That defendant's conduct was a substantial factor in causing plaintiff's harm.

CACI No. 3066.

Statutory causes of action must be pleaded with particularity. Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.

For this cause of action, Plaintiff broadly alleges that Defendants, including the officers who arrested him, violated his civil rights. [FAC, ¶ 50.] The court finds that this is insufficient.

Again, no actual conduct by Brenda Monroy or Jennifer Lopez is alleged.

The demurrer to this cause of action is sustained.

Fourth Cause of Action for Intentional Infliction of Emotional Distress This cause of action is asserted against all Defendants.

Under California law, the elements of a claim for intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Christensen v. Superior Court (1991) 54 Cal.3d 868, 903. “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Id.)

As described above, Tatiana Monroy is alleged to have verbally abused Plaintiff, questioning whether he could speak English, because she was apparently upset about his accent. From there, she physically attacked him. This is sufficient to allege extreme and outrageous conduct. And for the reasons discussed above, allegations of her employment and that she acted within the course and scope are sufficient for respondeat superior liability as to defendant Lyons.

But, again, there are no allegations of actual conduct by Brenda Monroy or Jennifer Lopez.

The demurrer to this cause of action is overruled as to Lyons (and Tatiana if that is part of the demurrer); it is sustained at to Brenda Monroy and Jennifer Lopez.

Motion to Strike Legal Standard A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. Code Civ. Proc. § 431.10(b). A motion to strike can also strike legal conclusions. Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010). Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.

Motions to strike are disfavored. Pleadings are to be construed liberally with a view to substantial justice. Cal. Code Civ. Proc. § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2010). The allegations of the complaint are presumed true; they are

read as a whole and in context. Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.

Discussion

Allegations that Defendants Brenda Monroy and Jennifer H. Lopez’s Actions Constitute Assault and Battery

Defendants seek to strike the allegations that Defendants Brenda Monroy and Jennifer Lopez assaulted and battered Plaintiff from the SAC on the ground that Defendants think Plaintiff left them in there by mistake. Plaintiff disagrees.

Accordingly, this portion of the motion to strike is denied.

As discussed, that does not mean Plaintiff has sufficiently alleged a cause of action for assault or battery against Brenda Monroy or Jennifer Lopez

Allegations that Defendants Tatiana Monroy, Brenda Monroy, and Jennifer H. Lopez Were in the Course and Scope of Their Employment With Lawrence G. Lyonss, PhD at the Time of the Assault, And Alleging Responsibility for Their Acts Under the Doctrine of Respondeat Superior

Defendants’ argument that Plaintiff has not sufficiently alleged respondeat superior liability is premised on facts outside the complaint.

This portion of the motion to strike is denied.

Allegations that Defendants Tatiana Monroy, Brenda Monroy, and Jennifer H. Lopez Actions Were Oppressive, Malicious, Despicable, and Done with Reckless Disregard

And

Prayer for Punitive or Exemplary Damages

Plaintiff alleges that the conduct of “Tatiana Monroy, Brendan Monroy, Jennifer Lopez and each of them, was malicious, oppressive, and despicable, and was done in conscious disregard of Plaintiff’s rights . . . .” [FAC, ¶ 59.] Plaintiff seeks punitive damages against each of them. [Id. and prayer item 2.] Defendants seek to strike this allegation and prayer.

Civil Code section 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others; “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. Civ. Code § 3294(c)(1), (2).

At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation].”).

A finding of assault and battery may support punitive damage as showing malice. McAfee v. Ricker (1961) 195 Cal.App.2d 630 (finding evidence sustained findings as to exemplary damages for assault and battery).

Further, Plaintiff’s allegations as to Tatiana Monroy’s conduct raise a possible inference of malice. Accordingly, the motion to strike the punitive damage allegation and prayer as to Tatiana Monroy is denied. Again, though, no conduct by Brenda or Lopez is alleged, so the motion to strike is granted as to them.

Allegations that Defendants Brenda Monroy and Jennifer H. Lopez Interfered With or Assisted in Interfering With or Attempted to Interfere with Plaintiff’s Constitutional Rights by Committing, Threatening, Intimidating and/or Coercing

Again Defendants move to strike the allegations that Brenda and Lopez interfered with Plaintiff’s constitutional rights, on the assertion they were included by mistake. Again, that would be up to Plaintiff.

But this portion of the motion to strike is moot because the court sustained the demurrer to the cause of action for violation of Civil Code section 52.1.

Prayer for Reasonable Attorney’s Fees and Treble Damages Defendants moves to strike Plaintiff’s prayers for attorneys’ fees and treble damages. These are premised on Plaintiff’s claim for violation of Civil Code section 52.1.

As discussed above, Plaintiff has failed sufficiently to allege a cause of action for violation of Section 52.1. Accordingly, the motion to strike Plaintiff’s prayers for attorneys’ fees and treble damages is granted.

Case Management Conference Order to Show Cause re: Dismissal 8 Hart vs. Providence Mission Hospital - Laguna Beach

2024-01451053 Motion for Summary Judgment and/or Adjudication

Continued to 08/17/2026 9 Hernandez vs. Winn Incorporated

2025-01456223 Motion to Compel Arbitration

Off Calendar. Stipulation for Arbitration filed. ADR Review Hearing set 12/07/2026. 10 Lomeli de Facio vs. Sodexo, Inc.

2020-01162342 Motion to Compel Physical/Mental Examination

Defendant Peter Rendon’s motion to compel an independent mental examination of Plaintiff Felixitas Lomeli De Facio is denied.

The motion is not timely.

Code Civ. Proc., § 2024.030 provides that the discovery cut-off for expert witnesses is 15 days before trial and the motion cutoff is 10 days before trial. A “continuance or postponement of the trial date does not operate to reopen discovery proceedings.” (Code Civ. Proc., § 2024.020(b).)

When trial was continued from 5/4/26 to 8/31/26, the Court did not also continue the discovery deadlines to track with the new trial date. (ROA 842.) The parties both acknowledge in the briefing that this motion is being brought past the deadline.

Defendant requests relief from the foregoing statutes pursuant to Code Civ. Proc., § 2024.050.

The purposes of California's discovery statutes are, among other things “to assist the parties and the trier of fact in ascertaining the