Nguyen vs. Uriarte

Thereafter, the 5th Circuit, citing federal authorities, explained that, “unless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself.” (Darby, supra, 939 F.2d at p. 313.)

Similar to the above, Defendant cites Vermillion v. Lacey Police Department (W.D. Wash. 2017) 2017 WL 5009696, wherein a district court partially granted summary judgment, after reviewing “the City of Lacey Municipal Code” and finding “no legislative intent to treat the city and the police department as separate legal entitles capable of being sued separately.” (Id. at p. 3.)

The sole California authority cited by Defendant in the demurrer, in support of this argument, is Sheehan v. Bd. of Police Com’rs of City and County of San Francisco (1922) 188 Cal. 525, wherein the Court noted that the board of police commissioners for the city and county of San Francisco had “no separate existence and [was] incapable of either suing or being sued....” (Id. at p. 532.) This conclusion was reached after the Court explained that “[t]he police relief and pension fund of said municipality is provided for in chapter X of article VII of the San Francisco charter” and “[t]he only function which the board of police commissioners, acting ex officio as the board of police relief and pension fund commissioners, have to perform in relation to said fund is that of determining who, among the members of the police department of said municipality....are entitled to receive such pension...” (Id. at pp. 530-531.)

The above authorities offer little guidance here, with respect to the separate existence of the Santa Ana Police Department.

In responding to the above authorities, Plaintiff cites Peterson v. City of Long Beach (1979) 24 Cal.3d 238 (Peterson), wherein the California Supreme Court addressed “whether the Long Beach Police Department Manual contains regulations of a public entity,” such as to invoke the presumption included within Evidence Code section 669. (Id. at pp. 241-242.) In finding the manual did qualify as a regulation

of a “public entity” the Court relied on Evidence Code section 200, which defines a “public entity” to include “a nation, state, county, city and county, city, district, public authority, public agency, or any other political subdivision or public corporation, whether foreign or domestic.” (Evid. Code, § 200; See also Peterson, supra, 24 Cal.3d at pp. 243-244.) The Court concluded: “A city is a public entity. But so are the office of its city manager and the department that its police chief directs. Each traditionally has been regarded as an ‘agency’ of the city, obviously ‘public.’” (Id. at p. 244.)

As perhaps more succinctly summarized by Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4th 895, in Peterson “the Supreme Court held that a city police department manual was a quasi-legislative measure that came within the provisions of Evidence Code section 669.” (Id. at p. 907.) “However, the Legislature subsequently enacted Evidence Code section 669.1 to provide that a rule, policy, manual, or guideline of state or local government setting forth standards for employees in conduct of their employment shall not be considered a statute, ordinance or regulation unless formally adopted in the manner necessary for the adoption of statutes, ordinances, and regulations.” (Ibid.)

Peterson did not consider and offers no clear guidance, as to the means of determining whether a city police department is a separate legal entity capable of being sued.

However, relying on the invocation of Evidence Code section 200 included within Peterson, the 9th Circuit Court of Appeals, in Shaw v. State of California Dept. of Alcoholic Beverage Control (9th Cir. 1986) 788 F.2d 600 (Shaw), held that a police department could be sued independently. (Id. at p. 605.)

Pursuant to Government Code section 945, “[a] public entity may sue and be sued.” (Gov. Code, § 945.) Additionally, pursuant to Evidence Code section 811.2, a “public entity” includes “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city district, public authority, public agency, and any other political subdivision or public corporation in the State.” (Gov. Code, § 811.2.)

Noting that “[t]he courts of California have not expressly determined whether a police department is a public entity under section 811.2” the 9th Circuit in Shaw relied on the conclusion in Peterson, that the Long Beach Police Department constituted a “public entity” pursuant to Evidence Code section 200. (Shaw, supra, 788 F.2d 600, 604.) The Shaw Court summarized Peterson has having “rejected the

‘sovereignty’ test and held that a police department was a public entity under section 200 because it was a public agency.” (Ibid.) “In none of these cases were city charter provisions even mentioned, and indeed the terms of the charter are irrelevant.” (Ibid.)

Based on the above, the 9th Circuit concluded “that the courts of California would hold that the Police Department is a public entity under section 811.2,” and consequently could be independently sued. (Shaw, supra, 788 F.2d at p. 605.)

Again, as mentioned above, Peterson did not consider whether a police department could be independently sued and, as conceded by the 9th Circuit, did not find that a police department qualifies as a “public entity,” pursuant to either Government Code sections 811.2 or 945; Instead, the 9th Circuit extrapolated from Peterson, in order to reach a determination, it thought most likely to be reached by a California Court, considering such a question.

Although not offered by any party, Vann v. City and County of San Francisco (2023) 97 Cal.App.5th 1013 offers more recent guidance, as to the above question.

As the Court in Vann explains:

“Turning to whether SFMTA is independent from the City, the parties refer us to a number of authorities for guidance on the issue. One of those is Government Code section 945, which provides that ‘[a] public entity may sue and be sued.’ (Gov. Code, § 945.) ‘Public entity’ is defined to include ‘the state ..., a county, city, district, ...public agency, and any other political subdivision or public corporation in the State.’ (Gov. Code, §811.2) However, the California Law Revision Commission’s comments to Government Code section 811.2 state that ‘[t]his definition [of ‘public entity’] is intended to include every kind of independent political governmental entity in the State.’”

(Vann v. City and County of San Francisco (2023) 97 Cal.App.5th 1013, 1023.) The Vann court went on to state that “if an entity is not independent, it is not properly named as a defendant.” (Id. at p. 1024.) “If an entity is a subsidiary, an action must be filed against the parent entity.” (Ibid.)

“Factors that may be considered in determining if an entity is independent include whether there is ‘[a]n express statutory declaration that [the] entity is a body corporate and politic’; whether the entity has ‘[a] governing body separate from that of the city,

county, or district’; or whether it has ‘[s]tatutory power to own property, levy taxes, or incur indebtedness in its own name.’” (Vann v. City and County of San Francisco (2023) 97 Cal.App.5th 1013, 1025.)

After reviewing “the City Charter, City municipal codes, and other legislative materials,” much of which was judicially noticed, the Court in Vann concluded that the relevant agency at issue therein did not have a separate existence apart from the City. (Vann v. City and County of San Francisco (2023) 97 Cal.App.5th 1013, 1017, at fn. 2, and 1025.)

Based on the above, contrary to the speculation and conclusion in Shaw, California Courts continue to apply a sovereignty/ independence test, for purposes of Government Code section 811.2.

Within its Reply, Defendant cites Lejins v. City of Long Beach (2021) 72 Cal.App.5th 303, wherein the Court noted that the City’s Water Department “is not a legal entity separate from the City....” (Id. at p. 309.) While Defendant suggests the above supports finding the SAPD is not separate from the City of Santa Ana, the statement in Lejin followed a reference to the Long Beach City Charter. (Ibid.)

As the Court in Lejins noted, “[t]he City is governed by the Long Beach City Charter (Charter), which created its Water Department at article XIV, section 1400 et seq. of the Charter.” (Lejins v. City of Long Beach (2021) 72 Cal.App.5th 303, 309.) The Court in Lejins briefly summarized portions of the Charter, as follows: “The Water Department is managed by a five-member Board of Water Commissioners (the Board)...One of the Board’s powers as provided in the Charter, is to fix rates charged for water and sewer services. The rates ultimately must be approved by the City Council.” (Ibid.) Pursuant to the Charter, monies collected by the Water Department were held within City funds. (Ibid.)

Based on the above, the relevant city charter in Leijins included information which indicated the Water Department did not operate independently from the City.

Here, as Defendant has offered no judicially noticeable materials which assist in the analysis discussed in Vann, or which indicate the Santa Ana Police Department lacks independence from the City of Santa Ana, this portion of the Demurrer is OVERRULED.

In making this order, the Court is not finding that the Santa Ana Police Department is an independent “public entity,” capable of being sued pursuant to Government Code section 945 and, instead, is merely

finding that insufficient information has been provided, to allow a determination at this time.

The parties are encouraged to engage in the relevant analysis articulated in Vann v. City and County of San Francisco (2023) 97 Cal.App.5th 1013 and to meet and confer, prior to raising the issue again.

Government Liability

Next, Defendant the City of Santa Ana demurs to the Complaint, on the basis that Plaintiff fails to identify a statutory basis for the City’s liability.

Pursuant to Government Code section 815, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a).)

Based on the above, “there is no such thing as common law tort liability for public entities; a public entity is not liable for an injury ‘[e]xcept as otherwise provided by statute.’” (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 803.)

“[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’....and to state a cause of action every element essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) “Since the duty of a government agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Ibid.; See also Agustin v. Golden Empire Transit Dist. (2025) 116 Cal.App.5th 426, 441.)

Here, Defendant correctly notes that Plaintiff has failed to identify the relevant statutory basis for liability and, consequently, the demurrer brought by the City is sustained; however, leave to amend is granted.

Consistent with the above, the Court takes judicial notice that the City of Santa Ana is a public entity. This request is supported by the allegations in the Complaint (¶5(b)(4) of Complaint) and Government Code section 811.2.

Defendants’ request that the Court take judicial notice of the fact Defendant the Santa Ana Police Department is a non-jural entity is

denied, on the basis Defendants failed to “[f]urnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453, subd. (b).)

Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiff shall file and serve the amended complaint within 30 days of service of the notice of ruling.

Defendants to give notice.

5 Cemex TENTATIVE RULING: Construction Materials Motion for Leave to File Cross-Complaint Pacific, LLC vs. Gunner Concrete, Inc. Defendants Douglas Scott Milne, II, and Geneva Milne move for leave to file a Cross-Complaint against Plaintiff Cemex Construction Materials Pacific, LLC. For the following reasons, the motion is GRANTED. The Milnes shall file the proposed Cross-Complaint within 7 days of this ruling.

Code Civ. Proc. § 428.10 provides that a party may file a cross- complaint setting forth: “[a]ny cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross- complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.”

There are two types of cross-complaints: compulsory cross- complaints and permissive cross-complaints. A compulsory cross- complaint is a cross-complaint that is asserted against the plaintiff and related to the subject matter of the complaint. (Code Civ. Proc. § 426.30.) A cross-complaint is “related” to the complaint if it arises out of the same transaction, occurrence, or series of transactions or occurrences as the complaint. (Code Civ. Proc. § 426.10(c).) All other cross-complaints are permissive cross-complaints.

A liberal construction is given to the application of the compulsory cross-complaint statute. (Align Technology, Inc. v. Bao Tran (2009) 179 Cal.App.4th 949, 967.) “The test requires not an absolute identity of factual backgrounds for the two claims, but only a logical relationship between them”. The key question is “are any factual or legal issues relevant to both claims?” The goal is to avoid duplication of time and effort that comes from separate suits on the