Lozano v. California Towing & Transport, et al.

CASE NUMBER: 25CV-0208662 Tentative Ruling on Demurrer: Defendant City of Redding and the Redding Police Department demur to each cause of action in the Second Amended Complaint on the grounds that the claims are barred by failure to comply with the Government Claims Act, statutory immunity, for failure to state a claim, and for being vague and ambiguous. The demurrer is properly noticed and unopposed.

Meet and Confer: CCP § 430.41 requires the demurring party to “meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The Declaration of Tracy Werner establishes compliance with the meet and 7

confer requirements.

Request for Judicial Notice: Defendant requests the Court take judicial notice of a Redding Police Department Citation, Phone Message, and Call for Service. The request is denied as these documents do not fall within any of the categories set forth in Evidence Code 452.

Merits: A demurrer should be sustained if the complaint fails to “state facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.

App. 4th 435, 438. No matter how unlikely, a plaintiff’s allegations must be accepted as true for the purpose of ruling on a demurrer. Del. E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. A plaintiff must plead ultimate facts that acquaint the defendant with the nature, source and extent of plaintiff’s causes of action. Doe v. City of Los Angeles (2007) 42 Cal. 4th 542, 550.

The operative complaint is Plaintiff’s Second Amended Complaint, filed May 4, 2026. It alleges the following causes of action: 1) Conversion (against CTT), 2) Trespass to Chattels (against CTT), 3) Negligence (against all Defendants), 4) Civil Rights 42 USC 1983 (against City and County), 5) Bane Act Civil Code 52.1 (against CTT), 6) Unfair Business Practices, Bus. & Prof. Code 17200 (against CTT), and 7) Declaratory Relief (against all Defendants). Therefore, the only causes of action at issue on this Demurrer are 3, 4, and 7.

First as a threshold issue, Plaintiff’s claims are barred by his failure to comply with the Government Claims Act. Gov. Code § 945.4 provides that no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.

Plaintiff’s Second Amended Complaint alleges only that he filed a Government Claim with County of Shasta. The SAC does not allege a Government Claim was filed with the City of Redding. The City argues no Government Claim was received prior to the filing of this action. Plaintiff has not disputed that argument or provided any evidence to the contrary.

Negligence. Government Code § 815 provides that a California public entity cannot be held liable for injury or damages except where authorized by statute. Common law torts such as negligence are not permitted. Plaintiff also lists CVC 22651.07, an apparent reference to the California Vehicle Code. This statutes does not authorize liability for damages against a public entity. Therefore the demurrer as to the third cause of action for negligence as to the City is SUSTAINED without leave to amend.

Civil Rights 42 USC § 1983. To state a cause of action under 42 USCS § 1983 against a city in California, a plaintiff must allege that a municipal policy, practice, or custom caused a municipal employee, acting under color of state law, to violate the plaintiff’s federally protected rights. Irwin v. City of Hemet (1994) 22 Cal. App. 4th 507. To establish local governmental liability under the seminal Monell framework, the plaintiff must sufficiently plead three primary elements: (1) the

deprivation of a constitutional right or a right secured by the laws of the United States; (2) that the city had an official policy, practice, or custom that amounted to deliberate indifference to that right; and (3) that the action taken pursuant to that policy, custom, or practice was the moving force behind and directly caused the constitutional violation and injury. Casey N. v. County of Orange (2022) 86 Cal. App. 5th 1158. “In order to state a cause of action under 42 United States Code sections 1983 or 1985(3), the pleader must show, in a specific and nonconclusory way, that the alleged acts deprived him of rights, privileges, or immunities secured by the federal Constitution and laws.” Duffy v. City of Long Beach (1988) 201 Cal.App.3d 1352, 1360.

Here, Plaintiff has made a bare recitation of “deprivation of property without due process and unreasonable seizures.” The SAC fails to state a claim pursuant to 42 USC § 1983. Plaintiff has not opposed the motion and there is no showing that there is a reasonable possibility the defect can be cured by amendment. Therefore, the demurrer to the fourth cause of action as to the City is SUSTAINED without leave to amend.

Declaratory Relief. “Declaratory relief generally operates prospectively to declare future rights, rather than to redress past wrongs. [Citations.] It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs. In short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them. To qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations ... .’ ” Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.

Here, Plaintiff’s SAC seeks “a declaration that the sales were void and statutory rights were violated.” This bare recitation without the identification of any actual present controversy, or rights or obligations, is insufficient to put Defendant on notice of what Plaintiff is alleging. Plaintiff has not opposed the motion and there is no showing that there is a reasonable possibility the defect can be cured by amendment. Therefore, the demurrer to the fourth cause of action as to the City is SUSTAINED without leave to amend.

The City of Redding’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED without leave to amend. The proposed order will be executed.

LVNV FUNDING LLC VS. DYSON