BAILEY v. COUNTY OF EL DORADO

LAW AND MOTION CALENDAR JULY 31, 2026

3. BAILEY v. COUNTY OF EL DORADO, 24CV1675

(A) Defendant’s Demurrer to Third Amended Complaint

(B) Defendant’s Motion to Strike Portions of Third Amended Complaint

Defendant’s Demurrer to Third Amended Complaint On April 16, 2026, pursuant to Code of Civil Procedure section 430.41,

subdivision (e), defendant County of El Dorado (“defendant” or the “County”) filed a

general demurrer to plaintiff Leo Bailey’s (“plaintiff”) third amended complaint (“TAC,”

filed March 6, 2026). Defense counsel declares he met and conferred with plaintiff on March 10, 2026, via teleconference in compliance with Code of Civil Procedure

section 430.41, subdivision (a). (Little Decl., ¶ 3.)

On July 20, 2026, plaintiff filed a timely opposition. On July 24, 2026, defendant filed

a timely reply.

1.

Background

On October 15, 2020, deputies of the El Dorado County Sheriff’s Department, a

department of defendant, arrested plaintiff, who is of Puerto Rican heritage. (TAC, ¶¶ 3,

42.) During the arrest, deputies seized plaintiff’s personal property pursuant to a search

warrant. (TAC, ¶¶ 3, 9, 37.) Supervisors in the Sheriff’s Department permitted County

Code Enforcement Officer Wayne Shadow — a County employee with no peace-officer

authority under Penal Code section 830.6 – to handle the seized property at the scene

without gloves or proper documentation. (TAC, ¶ 8.)

Following the arrest, the El Dorado County District Attorney’s Office filed a criminal

action against plaintiff. (TAC, ¶ 4.) Although there were other “similarly situated”

defendants in the case, County personnel selectively and arbitrarily inflated charges

against plaintiff based on his Puerto Rican heritage. (TAC, ¶ 53.) Additionally, County

personnel falsely accused plaintiff of “international drug trafficking.” (TAC, ¶¶ 50, 52.)

LAW AND MOTION CALENDAR JULY 31, 2026

None of plaintiff’s co-defendants were labelled by the County as international

traffickers. (TAC, ¶¶ 50, 53.)

In August 2023, a jury acquitted plaintiff of the criminal charges. (TAC, ¶¶ 5, 9.)

Thereafter, the court in the criminal case granted plaintiff’s motion for the release of his

personal property that had been seized during his arrest. (TAC, ¶ 6.)

The TAC alleges that defendant, through the Sheriff’s Department, maintained final

policymaking authority over evidence handling, property custody, and post-acquittal

property disposition. (TAC, ¶ 14.) Between August and December 2023, County personnel made decisions that resulted in the wrongful destruction or loss of plaintiff’s

seized property. (TAC, ¶ 9.)

In December 2023, when plaintiff sought to recover his property pursuant to the

court’s order, he was informed that much of it had been lost or destroyed while in the

exclusive custody and control of the Sheriff’s Department. (TAC, ¶ 7.)

“Plaintiff is informed and believes, and on that basis alleges, that the deprivation of

property rights occurred as a direct result of the policies, customs, or practices of the

County of El Dorado through the Sheriff’s Department, including but not limited to:

(1) inadequate procedures for safeguarding or inventorying arrestee property; (2) the

failure to return lawfully held property upon acquittal or court order; and (3) the failure

to adequately train and supervise personnel in these procedures.” (TAC, ¶ 15.)

“Deputies repeatedly violated mandatory evidence-handling and property protocols, ... [including]: (i) ungloved handling of evidence (violating EDSO Policy 322.5,

POST LD 30, JIJ guidelines, and CSI protocols...); (ii) incomplete chain-of-custody and

inventory logs (violating EDSO Policies 805.3.3, 805.4, Penal Code §§ 1405, 1417.9);

(iii) destruction of hemp seeds/digital assets without confirmatory THC testing or

documentation (violating EDSO Policy 805.8, NIJ standards, and search warrant

requirements under Health & Safety Code § 11479); (iv) misclassification of legal hemp as contraband (‘BCS Code: Drug’) without forensic basis (contrary to Penal Code § 1524

LAW AND MOTION CALENDAR JULY 31, 2026

and 2018 Farm Bill); and (v) unauthorized access/use of cryptocurrency (violating EDSO

Policy 606.3.2).” (TAC, ¶ 16.)

“Sheriff John D’Agostini, as the County’s chief law enforcement officer with

operational control over evidence and property management, possessed actual and

constructive knowledge of the systemic violations described [in the TAC] through direct

supervisory oversight, trial testimony by department personnel, and post-acquittal court

proceedings. The County ratified these violations through deliberate inaction.” (TAC,

¶ 14.)

2. Request for Judicial Notice

Pursuant to Evidence Code section 452, subdivision (d), the court grants defendant’s

unopposed request to take judicial notice of plaintiff’s TAC.

3. Legal Principles

“[A] demurrer challenges only the legal sufficiency of the complaint, not the truth or

the accuracy of its factual allegations or the plaintiff’s ability to prove those allegations.”

(Amarel v. Connell (1998) 202 Cal.App.3d 137, 140.) A demurrer is directed at the face of

the complaint and to matters subject to judicial notice. (Code Civ. Proc., § 430.30,

subd. (a).) All properly pleaded allegations of fact in the complaint are accepted as true,

however improbable they may be, but not the contentions, deductions, or conclusions

of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Del E. Webb Corp. v. Structural

Materials Co. (1981) 123 Cal.App.3d 593, 604.) A judge gives “the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank,

supra, 39 Cal.3d at p. 318.)

4.

Discussion

Defendant generally demurs to both causes of action on the same grounds, arguing

it is not liable under 42 U.S.C. section 1983 (“Section 1983”) because the alleged

conduct constitutes law enforcement action attributable to the State, as opposed to the County.

LAW AND MOTION CALENDAR JULY 31, 2026

Plaintiff opposes the demurrer on the following grounds: (1) defendant’s argument

is based on a factual assertion not found in the TAC (i.e., that the County Code

Enforcement Officer was temporarily deputized, and thus, was performing state law

enforcement duties); (2) defendant’s demurrer does not establish as a matter of law

that all alleged conduct was state law enforcement action; and (3) the TAC sufficiently

alleges wrongful conduct attributable to the County where the TAC identifies “the final

policymaker by name, the violated policies by number, the department’s own sworn

admissions by quotation, six prior similar matters by docket number, and distinct administrative, custodial, and post-acquittal property functions that no California

decision has categorically assigned to the State.” (Opp. at 2:2–14.)

State courts have concurrent jurisdiction with federal courts to entertain suits

brought under Section 1983. (Williams v. Horvath (1976) 16 Cal.3d 834, 837.) That

statute provides in pertinent part: “Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding for redress....” (42 U.S.C.

§ 1983, italics added.)

States, and state officials sued in their official capacity, are not considered “persons” who can be sued, either in state or federal court, for damages under Section 1983. (Will

v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71.) Local governmental units such

as counties or municipalities, on the other hand, are “persons” within the meaning of

Section 1983. (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 690–

691.) A local governmental unit cannot be liable under this section for acts of its

employees based solely on a respondeat superior theory. A local governmental unit is liable only if the alleged deprivation of rights “implements or executes a policy

LAW AND MOTION CALENDAR JULY 31, 2026

statement, ordinance, regulation, or decision officially adopted and promulgated by that

body’s officers,” or when the injury is in “execution of a [local] government’s policy or

custom, whether made by its lawmakers or by those whose edicts or acts may fairly be

said to represent official policy.” (Monell, supra, 436 U.S. at pp. 690, 691, 694.)

Thus, if the actions and policies at issue in this case are not official policies of the

County, because the Sheriff acted in his capacity as a state official rather than a local

policymaker for the County, then the County is not liable to suit under Section 1983.

(McMillian v. Monroe County (1997) 520 U.S. 781, 784–785.) Whether a public official represents a county or a state when acting in a particular capacity is analyzed under

state, not federal law. (Pitts v. County of Kern (1998) 17 Cal.4th 340, 352–353; see

McMillian, supra, 520 U.S. at p. 786 [determining actual functions of government officer

is dependent on relevant state law].)

“Identification of those officials whose decisions represent the official policy of a

local governmental unit presents a question of law. [Citations.] The determination

whether a particular official acts for the state, on the one hand, or for the local

governmental unit, on the other hand, is a question of law depending primarily upon

the definitions of the official’s functions contained in state constitutional, statutory, and

decisional law. [Citations.] ... [¶] This determination does not require an ‘all-or-nothing’

categorization applying to every type of conduct in which the official may engage.

Rather, the issue is whether the official is a local policymaker with regard to the particular action alleged to have deprived the plaintiff of civil rights. [Citations.]” (County

of Los Angeles v. Superior Court (1998) 68 Cal.App.4th 1166, 1171–1172.)

4.1. Alleged Deprivation of Property Without Due Process

Under the first Section 1983 cause of action, the TAC alleges that defendant,

through the Sheriff’s Department, maintained final policymaking authority over

evidence handling, property custody, and post-acquittal property disposition. (TAC, ¶ 14.) Between August and December 2023 — after defendant was acquitted of the

LAW AND MOTION CALENDAR JULY 31, 2026

criminal charges — County personnel made decisions that resulted in the wrongful

destruction or loss of plaintiff’s seized property. (TAC, ¶ 9.)

California caselaw holds that a sheriff acts in his capacity as a state official, rather

than as a local policy maker for the county, with respect to evidence handling during

investigation and prosecution of a criminal case. (See, e.g., Venegas v. County of Los

Angeles (2004) 32 Cal.4th 820, 839.) Therefore, plaintiff’s allegations regarding evidence

contamination, which allegedly occurred during the seizure of such evidence, would

constitute conduct attributable to the State, for which the County is not liable under Section 1983.

However, the parties do not cite any legal authority specifically addressing the

handling of seized property after a defendant has been acquitted of criminal charges.

Penal Code section 1536 provides: “All property or things taken on a warrant must

be retained by the officer in his custody, subject to the order of the court to which he is

required the proceedings before him, or of any other court in which the offense in

respect to which the property or things taken is triable.” (Pen. Code, § 1536.)

In People v. Superior Court (“Loar”), defendants were acquitted of a charge of

conspiracy to distribute obscene films. There had been a mass seizure of a vast quantity

of films but only a few of them were introduced into evidence. Following the acquittal,

the Judge of the Superior Court who tried the case granted a motion for the return of all

films seized. The People sought a writ of prohibition from the appellate court challenging the validity of the order to return. One of the People's contentions in that

case was that the verdicts of acquittal did not determine that the mass of films not

introduced into evidence were not obscene and that therefore the court lacked power

to order their restitution to the owners. The appellate court’s response to that

contention was: “In the present case almost a year elapsed between seizure and the

order to return. Consequently, even if it be assumed, as proposed by the People, that the jury verdicts of acquittal in the criminal action were not a final judicial

LAW AND MOTION CALENDAR JULY 31, 2026

determination on obscenity with respect to the films not introduced into evidence,

continued official retention with no further criminal action pending or contemplated

would be violative of the owners' First Amendment and due process rights and would

require restoration of the seized items. [Citations.]” (Loar, supra, 28 Cal.App.3d 600,

618—619.)

As shown in Loar, the Sheriff holds seized property subject to court authority, not

independent departmental policy. Therefore, the court rejects plaintiff’s argument that

the Sheriff was performing “ministerial property-management functions subject to County policy control.” (See, TAC, ¶ 8.) The court finds plaintiff’s allegations that

deputies wrongfully disposed of his seized property is conduct attributable to the State,

not the County.

Having concluded that plaintiff’s allegations of wrongful conduct are attributable to

the State and not the County, the court finds that defendant is not liable under

Section 1983. Therefore, the court sustains defendant’s demurrer to the first cause of

action, and, because there is no reasonable likelihood that further amendment can cure

the defect, the court denies leave to amend. (Roman v. County of Los Angeles (2000) 85

Cal.App.4th 316, 322.)

4.2. Alleged Disparate Treatment Based on Puerto Rican Heritage

The second Section 1983 cause of action in the TAC alleges County personnel falsely

accused plaintiff of “international drug trafficking” and inflated criminal charges against him due to his Puerto Rican heritage. (TAC, ¶¶ 50–51.) Plaintiff alleges “[t]hese false and

contradictory statements by multiple officers in official reports, using different

phrasing ..., demonstrates a custom or practice of fabricating or reconstructing

incriminating statements [against Puerto Rican suspects] to support charges and

selective treatment [against said suspects].” (TAC, ¶ 51.)

The court agrees with defendant that the alleged conduct is attributable to the State, not the County. Making statements in reports falls under state law enforcement

LAW AND MOTION CALENDAR JULY 31, 2026

activity. Similarly, deciding what charges to press against a suspect is an act made on

behalf of the People of the State of California.

The court sustains defendant’s demurrer to this cause of action, and, because there

is no reasonable likelihood that further amendment can cure the defect, denies leave to

amend. (Roman, supra, 85 Cal.App.4th at p. 322.)

Defendant’s Motion to Strike Portions of Third Amended Complaint

Having sustained defendant’s demurrer to both causes of action in the TAC, the

court denies the motion to strike as moot.

TENTATIVE RULING # 3: THE COURT SUSTAINS DEFENDANT’S DEMURRER WITHOUT

FURTHER LEAVE TO AMEND. HAVING SUSTAINED THE DEMURRER, THE COURT DENIES

DEFENDANT’S MOTION TO STRIKE AS MOOT. NO HEARING ON THIS MATTER WILL BE

HELD (LEWIS v. SUPERIOR COURT (1999) 19 CAL.4TH 1232, 1247), UNLESS A NOTICE OF

INTENT TO APPEAR AND REQUEST FOR ORAL ARGUMENT IS TRANSMITTED

ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT

AT (530) 573-3042 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED.

NOTICE TO ALL PARTIES OF AN INTENT TO APPEAR MUST BE MADE BY TELEPHONE OR

IN PERSON. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE

HEARING.