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This case was last updated from Los Angeles County Superior Courts on 02/26/2019 at 06:06:19 (UTC).

SHANELL SCOTT, ET-AL VS. COUNTY OF LOS ANGELES, ET-AL

Case Summary

On 04/05/2013 SHANELL SCOTT, ET-AL filed a Personal Injury - Other Personal Injury lawsuit against COUNTY OF LOS ANGELES, ET-AL. This case was filed in Los Angeles County Superior Courts, Compton Courthouse located in Los Angeles, California. The Judges overseeing this case are MARK A. BORENSTEIN, RAFAEL A. ONGKEKO, ROSS KLEIN, MICHAEL P. VICENCIA, WILLIAM BARRY and MARK C. KIM. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7341

  • Filing Date:

    04/05/2013

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Compton Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARK A. BORENSTEIN

RAFAEL A. ONGKEKO

ROSS KLEIN

MICHAEL P. VICENCIA

WILLIAM BARRY

MARK C. KIM

 

Party Details

Plaintiffs

DANIEL BURLEY (BC505918)

DYLAN BURLEY (BC505918)

ESTATE OF DARREN BURLEY (BC505918)

RHANDI THOMAS INDIVIDUALLY (BC505918)

SCOTT SHANELL

SHANELL SCOTT INDIVIDUALL (DSM )

THOMAS RHANDI INDIVIDUALLY AND AS

TRAYSHAWN EARL A MINOR (TC027438)

Defendants

AVILES DAVID #513456 (DOE 2)

CELAYA ERNEST #484746 (DOE 5)

COUNTY OF LOS ANGELES

COUNTY OF LOS ANGELES (BC505918)

Minors

BREJANEA BURLEY A MINOR

BRENIYAH BURLEY A MINOR

BURLEY BREJANEA

BURLEY BRENIYAH

BURLEY DANIEL

BURLEY DYLAN

EARL TRAYSHAWN

Guardian Ad Litem

AKIRA EARL (TC027438)

43 More Parties Available

Attorney/Law Firm Details

Minor and Plaintiff Attorneys

THE DOUGLAS LAW GROUP

YASMIN FARDGHASSEMI-ESQ

ORANGE LAW OFFICES (TC027438)OLU K ORANGE

DOUGLAS/HICKS LAW(CARL DOUGLAS)BC505918

THE DOUGLAS FIRM (BC505918)CARL DOUGLAS

JOHN E. SWEENEY

THE SWEENEY FIRM(J.SWEENEY)TC027341

ANTABLIN DREW R. LAW OFFICES OF

ORANGE LAW OFFICES

ANTABLIN & BRUCE (D. ANTABLIN )BC505918

DOUGLAS CARL EDWIN

SWEENEY JOHN EDWARD

SWEENEY BRANDON J

DOUGLAS FIRM THE

DOUGLAS LAW GROUP THE

Defendant Attorneys

THOMAS C. HURRELL (TC027438)

MANNING & KASS ELLROD RAMIREZ STRESTER

MANNING & KASS ET AL (E.RAMIREZ;A POWELL

WILLIAMS JILL

MANNING STEVEN DONALD

 

Court Documents

Unknown

10/9/2015: Unknown

Minute Order

8/8/2018: Minute Order

Minute Order

8/29/2018: Minute Order

Notice of Ruling

9/11/2018: Notice of Ruling

Notice of Ruling

9/11/2018: Notice of Ruling

Substitution of Attorney

10/22/2018: Substitution of Attorney

Minute Order

10/23/2018: Minute Order

Unknown

10/23/2018: Unknown

Unknown

1/2/2019: Unknown

Statement of the Case

2/5/2019: Statement of the Case

Minute Order

2/6/2019: Minute Order

ORDER TRANSFERRING CASE TO IC COURT AND VACATING ALL FUTURE DATES CALENDARED IN PERSONAL INJURY HUB COURT.

6/18/2013: ORDER TRANSFERRING CASE TO IC COURT AND VACATING ALL FUTURE DATES CALENDARED IN PERSONAL INJURY HUB COURT.

Minute Order

6/18/2013: Minute Order

APPLICATION AND ORDER FOR?APPOINTMENT OF GUARDIAN AD LITEM?CIVIL EX PARTE

6/27/2013: APPLICATION AND ORDER FOR?APPOINTMENT OF GUARDIAN AD LITEM?CIVIL EX PARTE

NOTICE OF REJECTION-APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

7/8/2013: NOTICE OF REJECTION-APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL, EX PARTE

8/12/2013: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL, EX PARTE

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL, EX PARTE

8/12/2013: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL, EX PARTE

PROOF OF SERVICE SUMMONS

10/7/2013: PROOF OF SERVICE SUMMONS

10 More Documents Available

 

Docket Entries

  • 02/06/2019
  • at 08:30 AM in Department S27, Mark C. Kim, Presiding; Status Conference - Not Held - Vacated by Court

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  • 02/06/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 02/05/2019
  • Statement of the Case; Filed by A MINOR BREJANEA BURLEY (Legacy Party); A MINOR BRENIYAH BURLEY (Legacy Party); SHANELL SCOTT (Plaintiff)

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  • 01/02/2019
  • Appeal - Remittitur - Reversed

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  • 10/23/2018
  • at 08:30 AM in Department S27, Mark C. Kim, Presiding; Status Conference - Not Held - Continued - Court's Motion

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  • 10/23/2018
  • Certificate of Mailing for (Minute Order (Status Conference) of 10/23/2018); Filed by Clerk

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  • 10/23/2018
  • Minute Order ((Status Conference)); Filed by Clerk

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  • 10/22/2018
  • Substitution of Attorney; Filed by Steven Donald Manning (Attorney)

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  • 10/22/2018
  • Substitution of Attorney; Filed by Jill Williams (Attorney)

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  • 09/11/2018
  • Notice of Ruling; Filed by A MINOR BREJANEA BURLEY (Legacy Party); A MINOR BRENIYAH BURLEY (Legacy Party)

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635 More Docket Entries
  • 06/18/2013
  • Order; Filed by Court

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  • 06/10/2013
  • Application (name extension); Filed by AKIRA EARL (TC027438) (Legacy Party); TRAYSHAWN EARL A MINOR (TC027438) (Plaintiff)

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  • 06/03/2013
  • Complaint; Filed by SHANELL SCOTT (Plaintiff); SHANELL SCOTT, INDIVIDUALL (DSM 9-30-14 ) (Plaintiff); DANIEL BURLEY (BC505918) (Plaintiff) et al.

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  • 04/15/2013
  • at 00:00 AM in Department 91; Unknown Event Type

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  • 04/15/2013
  • Complaint; Filed by SHANELL SCOTT (Plaintiff); SHANELL SCOTT, INDIVIDUALL (DSM 9-30-14 ) (Plaintiff); DANIEL BURLEY (BC505918) (Plaintiff) et al.

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  • 04/12/2013
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 04/12/2013
  • Notice of Case Reassignment & Ord; Filed by Clerk

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  • 04/05/2013
  • Complaint Filed

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  • 04/05/2013
  • Complaint; Filed by SHANELL SCOTT (Legacy Party); A MINOR BREJANEA BURLEY (Legacy Party); A MINOR BRENIYAH BURLEY (Legacy Party) et al.

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  • 04/05/2013
  • Complaint; Filed by SHANELL SCOTT (Plaintiff); SHANELL SCOTT, INDIVIDUALL (DSM 9-30-14 ) (Plaintiff); DANIEL BURLEY (BC505918) (Plaintiff) et al.

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Tentative Rulings

Case Number: TC027341    Hearing Date: May 25, 2021    Dept: S27

Plaintiffs seek an order approving the distribution of the proceeds of the 3/17/15 Judgment entered in this case in favor of the minor children. The judgment was in the amount of $1,341,685.48 per minor plaintiff.

Plaintiff, Breniyah Burley, by and through her GAL, Shanell Scott, seeks an order apportioning $670,842.74 of her judgment to attorneys’ fees and $2400 to expenses; the remaining $668,442.74 will be used to purchase a single premium deferred annuity, subject to withdrawal only on authorization of the court.

Plaintiff, Daniel Burley, by and through his GAL, Terri Thomas, filed two petitions. The first (filed on 5/19/21) seeks an order apportioning $476,924.75 to attorneys’ fees and nothing to costs, with the remaining $764,760.73 being used to purchase a single premium deferred annuity, subject to withdrawal only on authorization of the court. The second (filed on 5/20/21) seeks an order apportioning $576,924.76 to attorneys’ fees and using $764,760.72 to purchase a single premium deferred annuity. It appears the 5/20/21 petition is the correct petition, as the numbers add up to the total allocation.

Plaintiff, Dylan Burley, by and through his GAL, Terri Thomas, filed two petitions. The first (filed on 5/19/21) seeks an order apportioning $476,924.75 to attorneys’ fees and nothing to costs, with the remaining $764,760.73 being used to purchase a single premium deferred annuity, subject to withdrawal only on authorization of the court. The second (filed on 5/20/21) seeks an order apportioning $576,924.76 to attorneys’ fees and using $764,760.72 to purchase a single premium deferred annuity. It appears the 5/20/21 petition is the correct petition, as the numbers add up to the total allocation.

Plaintiff, Trayshawn Earl, by and through her GAL, Akira Earl, seeks an order apportioning $670,842.74 to attorneys’ fees and nothing to costs; the remaining $670,842.74 will be used to purchase a single premium deferred annuity, subject to withdrawal only on authorization of the court.

The Court has not, as of 5/21/21, received an updated petition for Plaintiff, Brejanea Burley. The Court presumes Brejenea’s petition will be substantially the same as her sister, Breniyah’s petition, as they have the same GAL and are represented by the same attorney. Petitioner must submit her petition prior to the hearing for review.

The Court recognizes the attorneys in this case have worked extremely hard over a period of many years. The Court notes that the parties have submitted both trial court retainer agreement and also supplemental appellate retainer agreements. The parties have also submitted attorney declarations showing the time, effort, and expertise that has gone into litigating the action. The Court will therefore award all of the attorneys’ fees sought by way of the petitions.

The petitions are granted. The Court notes that CRC 7.952, which requires appearance of the petitioner and the minor child before approving a settlement on behalf of the child, does not appear to apply here, where the petitions are to approve distribution of proceeds after a judgment. The Court will sign Petitioners’ proposed orders on the petitions at the hearing.

Plaintiffs are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Case Number: TC027341    Hearing Date: May 13, 2021    Dept: S27

Plaintiffs scheduled a hearing date for a petition to approve compromise of minor for 5/13/21. Petitioners did not file their petitions to approve the compromise until 5/06/21, a week before the hearing. They filed the proposed orders on the petitions on 5/07/21.

Compounding the issue, the petitions contain numerous errors. The following list is not intended to be exhaustive; it is only the errors the Court found upon a brief review of the petitions. In the petition relating to Dylan and Daniel Burley:

Case Number: TC027341    Hearing Date: May 7, 2021    Dept: S27

  1. Background Facts

    In these three consolidated actions, Decedent’s surviving spouse and children sought survival damages and damages for the alleged wrongful death of Decedent, Darren Burley. The case is based on an incident of police brutality that occurred in 2012 and resulted in Decedent’s death.

    In 2014, the trial court granted Defendants’ motion for summary adjudication of the Bane Act claim, finding the plaintiffs had not shown coercive or threatening conduct separate and apart from the detention itself. At the end of 2014, the case went to trial. The jury found in favor of the plaintiffs and against the defendants. Specifically, the jury found:

  1. Motion for Judgment on the Pleadings

    Defendants move for judgment on the pleadings on the remaining Bane Act cause of action. The Court was originally scheduled to hear the motion on 4/09/21. At the time, the Court indicated an intention to grant the motion as to Daniel and Dylan Burley on the grounds that (a) they did not appeal the ruling granting summary adjudication on the Bane Act claim, and (b) they did not file successor-in-interest declarations. The Burley children appeared at the 4/09/21 hearing and sought a continuance of the motion, which the Court granted. The Burley children filed opposition to the motion on 4/19/21, and Defendants filed a reply on 4/30/21.

    The Court incorporates its 4/09/21 analysis by reference into this order and will not repeat the lengthy discussion of the various arguments made in support of and in opposition to the MJP; this ruling will address only the two arguments for which the Burley children were granted a continuance of the hearing.

  1. Failure to Appeal Summary Adjudication Ruling

    The parties agree that the general rule is that, where only one of several parties appeals from a judgment, the appeal includes only that portion of the judgment adverse to the appealing party’s interest, and the judgment is considered final as to the non-appealing parties. Estate of McDill (1975) 14 Cal.3d 831, 840.

    Plaintiffs argue that McDill and its progeny carve out an exception where the appealing party’s interests and the non-appealing parties’ interests are inextricably interwoven together. Plaintiffs argue that is the case here. Defendants, in reply, correctly note two key distinctions. First, they correctly note that each of the individual plaintiffs in this case had his or her own individual claim, and the claims are not of the sort that McDill considered to be inextricably interwoven, such as multiple claims to the same estate. Second, they correctly note that McDill contemplated the appellate court, not the trial court, making the determination that the reversal should apply to all of the parties to the litigation.

    Plaintiffs cite no authority decided in remotely similar circumstances to this case. On the contrary, this case appears to be a “typical” appeal, not an exceptional one. Each of the plaintiffs had a claim against the defendants, there was a final judgment in favor of the defendants on one of the claims (with a sizable award in favor of the plaintiffs on the other claims), and only some of the plaintiffs decided it was worth the time and money to invest in an appeal. There is nothing exceptional about this case or this choice.

    Plaintiffs also argue they should be permitted to pursue their claims because California has a strong policy of avoiding technical and unjust forfeitures. This was not, however, a technical or unjust forfeiture. As noted above, there is a sizable judgment in favor of all of the plaintiffs. As also noted above, deciding to appeal or not appeal is not a “technical” issue, and if one chooses not to appeal, losing the right to continue the litigation is not “unjust.”

    The motion for judgment on the pleadings is therefore granted without leave to amend on the ground that the Burley children did not appeal the ruling granting summary adjudication, and cannot take advantage of the other plaintiffs’ decision to appeal at this stage in the litigation.

  2. Failure to File Successor Declarations

    The Court will not consider the issue of whether the Burley children were permitted to cure their failure to file successor declarations by filing the declarations in the face of an adverse ruling against them. Doing so is not necessary to a resolution of the merits of the motion, which is granted in its entirety based on the Burley children’s failure to appeal the ruling granting summary adjudication of the Bane Act claim.

  1. Motion to Strike

    Defendants’ motion to strike portions of the Burley children’s pleading is moot in light of the ruling on the MJP.

  2. Motion to Tax Costs

  1. Memoranda of Costs

    After the COA ruled in Plaintiffs’ favor, Trayshawn Earl filed a memorandum of costs on 11/06/20, and Brejanea and Breniyah Burley filed a memorandum of costs on 11/09/20. For reasons that are not clear, the Burley children’s memorandum of costs is not in the online case file; Defendants, however, included a copy of the memorandum with their moving papers, and the Court has used that memorandum in ruling on this motion.

  2. Grounds for Motion

    Defendants move to tax the entirety of both memoranda of costs on the ground that they were filed on the wrong form. In the alternative, they move to strike various items of costs from the memoranda.

  3. Wrong Form

    Defendants’ first argument is that Plaintiffs filed their memoranda of costs on Form MC-010, the form for trial court costs, as opposed to mandatory form APP-013, which is required when seeking appellate costs. Plaintiffs argue the Court should not elevate form over substance, and should permit them to recover their incurred costs despite this procedural defect.

    No party cites authority on this point, and there likely is none. On the one hand, the form is mandatory per the Rules of Court. On the other hand, Plaintiffs filed a substantially similar form, and requiring them to give up their right to recover costs on appeals entirely due to the technical defect is draconian. The Court is inclined, on balance, to permit them to recover their otherwise recoverable costs despite the defect in the filing of the form.

  4. Individual Items in Trayshawn Earl’s Memorandum of Costs

    Defendants move to strike $465.47 in mailing/delivery fees, $429.55 in printing fees, $40 in oral argument audio recording, and $500 in video equipment fees from Earl’s memorandum of costs. Plaintiff, in opposition, justifies the mailing/delivery fees, and Defendants drop the argument in reply. Plaintiff, in opposition, concedes the $40 recording fee and $500 video equipment fee. Thus, the sole issue remaining on this motion is whether or not to award $429.55 in printing fees.

    CRC 8.728(d)(1)(a)(E) permits recovery of costs incurred for printing and reproducing appellate briefs. Plaintiff’s attorney, in opposition to the motion, declares, “My firm used our in-house copier and printer to print and reproduce the briefs on appeal in this case. The total cost for this was $429.55. a total of 8491 pages were printed at a cost of $.05 per page.” Defendants correctly note, in reply, that this amount appears to be excessive. It does not appear possible that there were this many pages of briefs that needed to be printed and reproduced for purposes of the appeal. At a minimum, the opposition declaration is insufficiently specific to justify this cost, which appears on its face to be excessive. The motion to tax this cost is therefore granted.

    As a final note, Plaintiff indicates, in opposition to the motion, that Plaintiff erroneously sought to recover $767.30 in filing fees instead of $764.30, the amount actually incurred.

    The Court strikes $429.55 in printing fees, $40 in oral argument audio recording, and $500 in video equipment fees from Earl’s memorandum of costs. The Court reduces filing fees from $767.30 to $764.30. All other costs remain in the memorandum and can be recovered.

  5. Individual Items in Brejanea and Breniyah Burley’s Memorandum of Costs

    Defendants move to strike $400 from Plaintiffs’ claimed filing fees. Plaintiffs concede this cost was improperly included in their memorandum of costs. The motion to strike it is therefore granted.

  1. Conclusion

    Defendants’ motion for judgment on the pleadings is granted without leave to amend. Defendants’ motion to strike is deemed moot. Defendants’ motion to strike costs is denied. Defendants’ alternative motion to tax costs is granted in part and denied in part as set forth fully above.

    Defendants are ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Case Number: TC027341    Hearing Date: April 9, 2021    Dept: S27

  1. Background Facts

    In these three consolidated actions, Decedent’s surviving spouse and children sought survival damages and damages for the alleged wrongful death of Decedent, Darren Burley. The case is based on an incident of police brutality that occurred in 2012 and resulted in Decedent’s death.

    In 2014, the trial court granted Defendants’ motion for summary adjudication of the Bane Act claim, finding the plaintiffs had not shown coercive or threatening conduct separate and apart from the detention itself. At the end of 2014, the case went to trial. The jury found in favor of the plaintiffs and against the defendants. Specifically, the jury found:

  1. Motion for Judgment on the Pleadings

    Defendants move for judgment on the pleadings on the remaining Bane Act cause of action. Their argument is essentially three-fold. First, they argue the jury found only Aviles used excessive force, and therefore the claim against the other deputies cannot stand. Second, they argue the Bane Act cause of action fails because the jury did not award survival damages, and an element of a Bane Act claim is survival damages. They therefore conclude collateral estoppel precludes Plaintiffs’ claim. Third, they argue the only remaining plaintiffs in the action, Decedent’s children, lack standing to sue and also failed to file a successor declaration.

  1. Request for Judicial Notice

    Defendants filed an RJN with their moving papers. They seek judicial notice of various documents previously filed in this case. The RJN is granted. Plaintiffs, Burley and Burley filed an RJN with their opposition. They seek judicial notice of the children’s successor declarations, as well as a U.S. District Court order and related deposition. The RJN is also granted. Plaintiff, Earl filed an RJN with his opposition; he seeks judicial notice of his successor declaration. The RJN is granted. Plaintiffs filed an RJN with their objection papers. They seek judicial notice of portions of the reporter’s transcript of trial proceedings. The RJN is granted. The Court is not in receipt of an RJN with Defendants’ response, but Defendants did file an attorney declaration with excerpts from the prior summary judgment motion attached; to the extent Defendants seek judicial notice of these excerpts, it is granted.

  2. Remaining Deputies

    Defendants’ first contention is that a claim for violation of the Bane Act requires the use of excessive force, and since the jury found only Aviles used excessive force, the claim cannot stand against the remaining named deputies. Plaintiffs, in opposition (footnote one) expressly concede that they are not seeking to assert the Bane Act claim against any other individual defendant; the claim is stated only against Aviles (and vicariously against the County). Thus, the motion for judgment on the pleadings by the remaining individual deputies is granted without leave to amend.

  3. Damages

    Defendants’ next argument is that a claim for damages under the Bane Act requires a plaintiff to prove up entitlement to survival, as opposed to wrongful death, damages. Defendants contend that, since the jury did not award any survival damages, there are no damages that can be awarded in connection with the Bane Act claim, and therefore Plaintiffs are collaterally estopped from asserting the claim.

    Plaintiffs, in opposition to the motion, argue the Bane Act has a variety of remedies not available in connection with the common law causes of action, including statutory damages, civil penalties, and attorneys’ fees. Plaintiffs also argue they are entitled to punitive damages under the Bane Act, and the claim for punitive damages stands regardless of the jury’s determination not to award punitive damages in connection with the battery cause of action. This issue is also the subject of Defendants’ motion to strike.

    Neither party cites a case directly on point concerning whether or not a plaintiff in a Bane Act case is entitled to recover statutory damages, as opposed to only actual and punitive damages. The Court located a Federal District Court case, Davis v. City of San Jose (2014) 69 F.Supp. 1001, 1009-1010, that addressed the issue. The Court recognizes that the case is not binding, but finds its reasoning and analysis persuasive and adopts the conclusion. The District Court therein held:

    Defendants further argue that Plaintiff is not entitled to recover damages under California Civil Code § 52(b). Defendants point to the plain language of that provision, which states: “Whoever denies the right provided by Section 51.7 or 51.9 ... is liable for [actual and exemplary damages].” Cal. Civ.Code § 52(b), (b)(1). Subsection (b)(2) provides for a mandatory penalty of “twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right.” Id. § 52(b)(2). Plaintiff relies on Los Angeles County Metropolitan Transportation Authority v. Superior Court, 123 Cal.App.4th 261, 20 Cal.Rptr.3d 92 (2004), for the proposition that “Cal. Civ.Code § 52.1 permits a prevailing Plaintiff to recover civil penalties under *1010 § 52(b)(2).” Pl.'s Opp. 9. However, Defendants reply that the case addressed penalties under section 52(b)(2) only with respect to claims under California Civil Code § 51.7—in accord with the plain language of section 52(b)—and did not address penalties for violations of the Bane Act, which is nowhere mentioned in section 52. Def.'s Reply 7.

    This Court notes that the Bane Act itself permits recovery under section 52 but does not limit recovery to any subsection, of which there are several. See Cal. Civ.Code § 52.1(b); see generally id. § 52. There are, however, also no cases in which a court has awarded penalties under section 52(b) for Bane Act violations. This ambiguity is noted in the Judicial Council of California Civil Jury Instruction for the Bane Act, which nevertheless concludes that “the reference to section 52 in subsection (b) of the Bane Act would seem to indicate that damages may be recovered under both subsections (a) and (b) of section 52.” CACI 3066 (Directions for Use). Given that the Bane Act was enacted after sections 51.7 and 52, see Stamps v. Superior Court, 136 Cal.App.4th 1441, 1446–48, 39 Cal.Rptr.3d 706 (2006) (discussing history of the Bane and Ralph Acts), and the lack of any case law or legislative intent suggesting that recovery for violations of the Bane Act should be limited to any subsection of section 52, the Court concludes that a plain reading of an unambiguous statute (section 52.1) allows Plaintiff to pursue damages under section 52(b).

    Because statutory penalties are available in connection with a Bane Act claim, but were not available in connection with the common law causes of action, the motion for judgment on the pleadings on the Bane Act claim on the ground that it is barred by collateral estoppel is denied.

  4. Standing

  1. Initial Note

    On 4/01/21, Plaintiffs filed an “objection” to Defendants’ reply. On 4/06/21, Defendants filed a response to the objection. The Court has considered both documents and all arguments made therein, especially in light of its initial tentative ruling, read and considered by the parties, which was to continue the hearing on the motion for further briefing.

    ii. Successor Declarations

    It is without dispute that Decedent’s surviving spouse, Rhandi Thomas, did not appeal the trial court’s order granting summary adjudication of her Bane Act cause of action. Thus, the trial court’s ruling is final as to Thomas.

    Defendants argue the remaining plaintiffs, all of whom are Decedent’s children, lack standing to assert the Bane Act claim, which is a survival claim. They argue this is so because the children did not execute a successor in interest declaration.

    Plaintiffs, Brejenea Burley, Breniyah Burley, and Trayshawn Earl, in opposition to the motion, show that they DID execute a successor in interest declaration. They did so in 2014. Defendants concede the issue in reply. The motion for judgment on the pleadings as to Plaintiffs, Brejenea Burley, Breniyah Burley, and Trayshawn Earl on this ground is therefore denied. Plaintiffs, Daniel Burley and Dylan Burley did not file opposition to the motion, and did not show that they filed the necessary declarations. The motion as to them, therefore, is granted without leave to amend.

    iii. Standing

    Defendants argue, in reply, that even if Decedent’s children filed the necessary declarations, they lack standing to assert the Bane Act claim. Plaintiffs, in their objection, argue this is a new issue raised for the first time in reply and is therefore improper. The Court finds the standing issue was sufficiently raised by way of the moving papers to encompass the argument made in reply; because additional briefing has been filed, and because standing is a threshold issue to prosecution of a case, the Court will consider the argument on its merits.

    Plaintiffs also argue, in their objection, that standing was stipulated to during the course of the original trial. Defendants, in reply, show that the stipulation related to the wrongful death claims, which are not survival claims, and therefore are not subject to the same standard. They also correctly note that, at a minimum, standing to assert Bane Act claims could not have been addressed, because Bane Act claims were not at issue.

    Thus, the Court must address the issue of whether the children have standing to assert their claims on its merits. CCP §377.11 defines “successor in interest” as the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action. The parties agree that Decedent died without a will, intestate. Pursuant to §377.10(b), the beneficiary of the estate of a person who dies without a will is the person or persons who succeed to the cause of action under §§6401 and 6402 of the Probate Code.

    Defendants argue 100% of the survival damages, if any, go to the surviving spouse under §§6401 and 6402. They argue this is so because personal injury damages are community property, and the surviving spouse is entitled to 100% of the decedent’s community property when the decedent dies intestate.

    The first issue, therefore, is whether personal injury damages are community property. Defendants cite Family Code §760 to support their position that the damages are community property. §760 provides, “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”

    Defendants argue that, because the damages award is community property, Decedent’s spouse is entitled to 100% of the proceeds of the award per Probate Code §100(a) and Probate Code §6401(a). Probate Code §100(a) provides, “Upon the death of a person who is married or in a registered domestic partnership, one-half of the community property belongs to the surviving spouse and the other one-half belongs to the decedent.” Probate Code §6401 governs intestate succession. §6401(a) provides, “As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100.”

    Thus, to the extent the damages award is community property, under the laws of intestate succession, 100% of the damages award goes to the surviving spouse. However, in Plaintiffs’ “objection,” they rely on Family Code §781(a)(2), which makes clear that, when spouses are living separately, damages for personal injuries are separate property. Separate property, as discussed above, passes to Decedent’s children, not to his spouse. Defendants do not address this code section or argument in their response to the objection. The Court finds, at a minimum, that this is an issue that cannot be decided at the pleading stage. The motion for judgment on the pleadings on Plaintiffs, Brejenea Burley, Breniyah Burley, and Trayshawn Earl’s cause of action for violation of the Bane Act against Officer Aviles and the County is therefore denied.

  1. Motion to Strike

    Defendants move to strike Plaintiffs’ claim for punitive damages pled in connection with the Bane Act cause of action. Defendants contend the claim for punitive damages is barred by the doctrine of collateral estoppel, because the jury already found Aviles did not act with fraud, malice, or oppression in connection with Decedent’s death.

    The motion to strike is denied for two reasons. First, collateral estoppel is an equitable remedy, and the court need not apply it when it would not be just to do so. In this case, Plaintiffs present new evidence, acquired after the original trial, showing that Aviles was a member of a deputy gang called the Executioners, which is a white supremacist group. Defendants, in reply, argue Plaintiffs could and should have discovered this information during depositions in the prior litigation. The parties are reminded that this is a pleading motion. The Court cannot determine highly factual issues in connection with a pleading motion. Whether or not Plaintiffs should have obtained this information in connection with the prior proceedings is not the proper subject of a motion to strike.

    Second, Plaintiffs are pursuing a different claim with different elements in connection with their Bane Act claim as opposed to their common law claims presented in connection with the earlier litigation. The Court understands that the factual situation was the same, but finds Plaintiffs are entitled to present all issues and all claims for damages in connection with their Bane Act cause of action to the jury at this time.

  2. Conclusion

    Defendants’ motion for judgment on the pleadings is granted as to the claim for violation of the Bane Act asserted against all defendants except Deputy Aviles and the County. Defendants’ motion for judgment on the pleadings is granted as to Plaintiffs, Daniel Burley and Dylan Burley, who did not oppose the motion. Defendants’ motion for judgment on the pleadings is otherwise denied. Defendants’ motion to strike is denied.

    The Court notes that the only future hearing scheduled in this case is a 5/06/21 motion to tax costs. The Court sets the case for trial in six months, on Wednesday, 10/06/21 at 8:30 a.m. in Department S27. The Court sets the case for an FSC on Wednesday, 9/29/21 at the same time and location. If these dates are not acceptable to the parties, Counsel must appear (remotely) and be prepared to address the scheduling of the FSC and trial.

    Defendants are ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

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