BENNETT vs SACRAMENTO COUNTY JAIL, et al.

23CV005472: BENNETT vs SACRAMENTO COUNTY JAIL, et al. 02/09/2024 Hearing on Demurrer in Department 54

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that pursuant to “Public Notice – Civil Division Expansion of Law and Motion Calendar” any oral arguments regarding this tentative ruling will be heard in Department 31, located at 720 9th Street, Sacramento, CA, the Hon. Steven M. Gevercer presiding, at 10:00 a.m. Should argument be requested by either party, the requesting party must call the Law and Motion Oral Argument Request Line at (916) 874-2615, request the hearing, and notify the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

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A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

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23CV005472: BENNETT vs SACRAMENTO COUNTY JAIL, et al. 02/09/2024 Hearing on Demurrer in Department 54

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

The demurrer of Defendants County of Sacramento (the “County”), Sacramento County Jail (the “Jail”), and Sgt. Lacey Nelson (“Nelson”) (collectively “Defendants”) to the first amended complaint (“FAC”) filed by Plaintiff in pro per Austin Bennet (“Plaintiff”) is ruled on as follows.

Background

The FAC asserts twenty-six causes of action arising from a series of events related to judicial proceedings following Plaintiff’s arrest for misdemeanor battery, including a competency hearing, the treatment of Plaintiff during Plaintiff’s confinement at the Sacramento Jail pending a competency hearing and until Plaintiff’s release on July 26, 2022. Defendants generally demurrer to the FAC on various grounds. Plaintiff opposes the demurrer.

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against demurrer.' (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39; Bagatti v. Dept. of Rehabilitation (2002) 97 Cal.App.4th 344, 352.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ.Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v.

Kirwan 1985) 39 Cal.3d 311, 318 (Blank); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) The Court treats as true not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged. (Amarel v. Connell, supra, 202 Cal.App.3d at p. 141.) “A court will not consider facts which have not been alleged in the complaint unless they may be reasonably inferred from the matters which have been pled or are

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV005472: BENNETT vs SACRAMENTO COUNTY JAIL, et al. 02/09/2024 Hearing on Demurrer in Department 54

proper subjects of judicial notice.” (Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 722, n. 7 [282 Cal.Rptr. 640].) Rather, “facts not alleged are presumed not to exist.” (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1327 [238 Cal.Rptr. 902].) Extrinsic evidence may not properly be considered on demurrer. (Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at 318; William S.

Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1616, fn.2.) The Court is to give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank, supra, 39 Cal.3d at p. 318)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . ., we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v.

Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733, citation omitted.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action - not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Analysis

Timeliness of Demurrer

On January 30, 2024, Plaintiff filed a Response Re: Kristlenne Vicuna re: Inability to Comply with Meet and Confer Requirements under Cal. Civ. Proc. Code Sections 43041(a), 435.5(a) (the “Response”). Plaintiff concedes the Response was filed one-day past the deadline to oppose the demurrer. Further, the 21-page Response exceeds the 15-page limit for a responding memorandum. (Cal. Rules of Court, rule 3.1113(d).) Plaintiff is advised to review the rules applicable to the papers filed in support of or opposition to a motion and that pro per litigants are held to the same standards as attorneys. (Rappleya v. Campbell (1994) 8 Cal.4th 975, 985.) The Court will exercise its discretion to consider Plaintiff’s Response. However, future failures to comply with the applicable rules and statutory timelines may result in the Court refusing to consider late or improperly-filed papers.

Plaintiff’s response contends the demurrer should be denied as untimely. A demurrer must be filed within 30 days after service of the complaint. (Code Civ. Proc. § 430.40.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV005472: BENNETT vs SACRAMENTO COUNTY JAIL, et al. 02/09/2024 Hearing on Demurrer in Department 54

The record contains three proofs of service of summons filed by Plaintiff. None of the proof of services relate to service on the Jail or Nelson. As there is no valid proof of service in the record as to those defendants, the Court finds the demurrer by the Jail and Nelson is timely.

One of the proofs of service in the record purports to have personally served the County on September 11, 2023. (POS on Sacramento County, 10/03/2023.) However, the proof indicates the notice on the summons served was addressed to the Sac County Sheriffs, rather than Sacramento County. (Ibid.) Service on that date was therefore defective. Again, as there is no proof of valid service in the record, the demurrer is timely.

The Court notes that on October 16, 2023, Counsel filed a declaration for an automatic extension for the time to file a demurrer under Code of Civil Procedure sections § 430.41(a)(2) and 435.5(a)(2) on behalf of the County and Nelson. The declaration represents the Nelson was served on September 17, 2023 and the County was served on September 18, 2023. (Vicuna Decl., 10/16/23.) Plaintiff contends the Jail and Nelson were not entitled to an extension under those statutes because the reason for the extension was the recent retention of Counsel, not the inability to meet and confer and the demurrer therefore remains untimely.

The Court agrees that sections 430.41 authorizes an automatic extension of the time to demurrer only where the need for the extension is based on the inability to meet and confer. The declaration concedes that at the time of filing, “Defense counsel have not yet formulated their arguments with respect to the demurrer . . . as we just accepted representation of the above listed Defendants six-business days ago on October 6, 2023.” Based on this concession, it is questionable whether the reason for the extension was based on the inability to meet and confer or on Counsel’s lack of sufficient time to evaluate the potential merits of a demurrer.

However, even if the Jail and Nelson were not entitled to an automatic extension, the Court is not persuaded that Counsel’s representation in the 10/16/23 declaration that the County and Nelson were served cures the defect in Plaintiff’s failure to file proof of service, as there are no facts demonstrating Counsel has personal knowledge of the date of service. Thus, the demurrer remains timely. Further, even if the County’s and Nelson’s demurrers are untimely, the Court has discretion to consider an untimely demurrer. (Jackson v.

Doe (2011) 192 Cal.App.4th 742, 750.) Here, there is no prejudice to Plaintiff in considering the demurrer. If the demurrer were overruled solely on grounds the time to demur has expired then County and Nelson, after filing their respective answers, would be able to move for judgment on the pleadings on the same grounds asserted in the instant demurrer. (See Code Civ. Proc. § 438(f)(2).) Further, there is no concession in the 10/16/23 that the Jail was served. Thus, even if the County’s and Nelson’s demurrers are untimely, the Court must still consider the Jail’s demurrer.

Under these circumstances, the Court will exercise its discretion to consider the demurrer as to each of the Defendants.

Demurrer by Defendant Nelson

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV005472: BENNETT vs SACRAMENTO COUNTY JAIL, et al. 02/09/2024 Hearing on Demurrer in Department 54

As a preliminary issue, the demurrer by Nelson is sustained, without leave to amend, based on the concession by Plaintiff.

On January 30, 2024, in addition to filing the Response, as noted above, Plaintiff also filed a “Declaration of Austin Bennet in Opposition to Demurrer” (Plaintiff’s “Opposition”). Although entitled a declaration, this document indicates it is submitted as Plaintiff’s “opposition to the Defendants’ demurrer.” (Opposition, p. 2, ¶ 1) Further, the document is not limited to statements of fact properly set forth in a declaration. Rather, it also contains Plaintiff’s arguments in response to the demurrer.

Accordingly, the Court treats this document as Plaintiff’s opposition. Similar to the Response, the Court notes the Opposition was filed one-day late and fails to comply with the requirements of Cal. Rules of Court, rule 3.1113, including by substantially exceeding the page-limit for an opposing memorandum. The Court again advises Plaintiff that the failure to file a concise, proper memorandum and where necessary, a separate declaration consisting only of averred statements of fact may result in the Court refusing to consider the improperly filed papers.

Here, however, the Court will again exercise its discretion to consider the opposition.

Plaintiff’s opposition represents it is her “intention to dismiss Defendant Lacey Nelson” and that Plaintiff agrees “to the requests that the Court sustain the demurrer and dismiss her without leave to amend.” (Opposition, p. 42, ¶ 137.) In light of this concession, the demurrer by Nelson is sustained, without leave to amend.

Civil Code § 47

Defendants demur on grounds “Plaintiff’s Claims Against Defendants County of Sacramento and the Sacramento County Jail are Barred by Civil Code § 47.” (Demurrer, p. 2:13-14.)

“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (Cal. Rules of Court, rule 3.1320(a).) Here, Defendant’s ground for demurrer indicates it applies to “Plaintiff’s Claims Against Defendants County of Sacramento and the Sacramento County Jail” and does not identify any individual causes of action to which it is directed. Accordingly, the Court treats this ground as a general demurrer to all causes of action asserted against the County and Jail.

If a complaint states a cause of action on any theory, a general demurrer must be overruled. (Kauffman v. Bobo & Wood (1950) 99 Cal.App.2d 322.)

As set forth above, Defendants give notice they are demurring to all causes of action against the County and Jail on grounds they are barred by Civil Code § 47. However, Defendants’ memorandum concedes Civil Code § 47 would bar only the third through tenth and twenty-

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV005472: BENNETT vs SACRAMENTO COUNTY JAIL, et al. 02/09/2024 Hearing on Demurrer in Department 54

second causes of action. (Memorandum, p. 5:28-6:1.) As Defendants concede at least one of Plaintiff’s causes of action is not barred by Civil Code § 47, the FAC is sufficient to withstand a general demurrer.

Even if Defendants’ demurrer on this ground was properly directed only to specific causes of action, the Court finds Defendants have failed to meet their burden, as the moving memorandum fails to identify any allegations in the FAC demonstrating those causes of action are based on privileged communications. Defendants’ cannot meet their burden merely by conclusively stating the causes of action are based on communications to the Court.

Further, Defendants have failed to provide any case law indicating whether the causes of action would be barred if they are based in part on privileged communications and in part on other actions. For example, Plaintiff’s third causes of action for abuse of process alleges that the Jail abused process not only by telling the Court that Plaintiff refused to attend a competency hearing (FAC, ¶ 152) but also by failing to take Plaintiff to the competency hearing and leaving him in jail despite Plaintiff’s desire to attend the competency hearing (FAC, ¶¶ 151, 154.) Defendants fail to explain why the refusal to permit Plaintiff to attend the competency hearing cannot support a cause of action for abuse of process that is not barred by Civil Code § 47.

The general demurrer on this ground is overruled.

California Tort Claims Act

Defendant also demurs on grounds “Plaintiff’s FAC Does Not Allege Any Facts Demonstrating He Complied with The California Tort Claims Act.” (Demurrer, p. 2:15-16.) Again, as this ground is addressed to “Plaintiff’s FAC,” the Court treats it as a general demurrer.

A complaint against a public entity or employee is subject to general demurrer if it fails to allege facts demonstrating or excusing compliance with the presentation requirement of the California Tort Claims Act, Government Code section 900, et seq. (32 Cal.4th 1234.)

In opposition, Plaintiff asserts a timely claim was filed and that Plaintiff received a rejection letter. However, Plaintiff cannot defeat a demurrer by relying on extrinsic evidence. Plaintiff was required to include the allegations demonstrating compliance with the presentation requirement in the FAC. As Plaintiff failed to do so the demurer on this ground is sustained, with leave to amend.

Punitive Damages

Defendants demur on grounds “Punitive Damages are Not Recoverable Against a Public Entity.” (Demurrer, p. 2:17.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV005472: BENNETT vs SACRAMENTO COUNTY JAIL, et al. 02/09/2024 Hearing on Demurrer in Department 54

A demurrer may not lie to a part of a cause of action and is not a proper procedure for challenging a claim for punitive damages. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163-164.) The demurrer on this ground is overruled.

Fails to State Facts Sufficient to Constitute a Cause of Action

Finally, Defendants demur on grounds “The Claims Set Forth in the FAC Fail to Set Forth Facts Sufficient to State a Cause of Action Against Defendants.” As this ground is directed to all claims in the FAC, the Court construes it as a general demurrer.

As noted above, the Court sustains the demurrer on this ground as to Nelson based on Plaintiff’s concession. The Court now considers this demurrer as to the causes of action asserted against County and Jail.

Defendants’ memorandum sets forth separate arguments as to each cause of action alleged in the complaint. However, as Defendant’s assert a general demurrer, the entire demurrer must be overruled if any single cause of action is sufficient.

Defendants contend the first cause of action fails to allege facts showing “extreme and outrageous conduct, intent to cause or reckless disregard of causing the distress, or that [Plaintiff’s] emotional distress was proximately caused by Defendants.” (Memorandum, p. 8:2- 4.) Upon review, the FAC alleges that guards at the Sacramento jail subjected Plaintiff to cruel treatment by laughing at Plaintiff during a strip search because Plaintiff had a colostomy bag, signaling for other guards to come look at Plaintiff naked and laugh, deprived Plaintiff of necessary replacement ileal pouches and vitamins, and that these actions caused Plaintiff’s emotional distress. (FAC, ¶¶ 136-149.)

Defendants fail to present any authority or argument explaining why these allegations are insufficient to constitute extreme and outrageous conduct in reckless disregard of causing distress or why they are insufficient to support a finding that these actions proximately caused Plaintiff’s distress. Accordingly, Defendants have failed to demonstrate the FAC does not state facts sufficient to constitute a cause of action for intentional infliction of emotional distress. Defendants’ general demurrer on this ground is therefore overruled.

Disposition

The demurer by Defendant Sgt. Lacey Nelson is sustained, without leave to amend.

The general demurrer by Defendants County of Sacramento and Sacramento County Jail is sustained, with leave to amend, on grounds the FAC fails to allege compliance with the claim presentation requirement of the California Tort Claims Act and overruled on all other grounds. Plaintiff may file a second amended complaint (“SAC”) no later than February 29, 2024. Consistent with the Court’s ruling sustaining the demurrer by Nelson, the SAC should not name

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV005472: BENNETT vs SACRAMENTO COUNTY JAIL, et al. 02/09/2024 Hearing on Demurrer in Department 54

Sgt. Lacey Nelson as a defendant on an any cause of action asserted in the FAC.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.