This case was last updated from Los Angeles County Superior Courts on 05/30/2019 at 01:30:26 (UTC).

TAMERIN LEWIS VS CITY OF LOS ANGELES ET AL

Case Summary

On 12/30/2016 TAMERIN LEWIS filed a Contract - Insurance lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TERESA A. BEAUDET. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5185

  • Filing Date:

    12/30/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Insurance

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TERESA A. BEAUDET

 

Party Details

Plaintiff and Guardian Ad Litem

LEWIS TAMERIN

Defendants and Respondents

DOES 1-20

LOS ANGELES CITY OF

LOS ANGELES POLICE DEPARTMENT

KEMLANDER CHARLES OFFICER

KUMLANDER CHARLES

CITY OF LOS ANGELES

Minor

BURSEY KEYSONNA YVETTE

Attorney/Law Firm Details

Plaintiff Attorney

PITTMAN ALVIN LEONARD

Defendant Attorneys

PLOWDEN GEOFFREY ROGER

BAKER CLIFTON ALLEN

HOUSE CALVIN RICHARD

Minor Attorney

LAW OFFICES OF ALVIN L. PITTMAN

 

Court Documents

EXHIBIT-B TO PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PRODUCTION OF PEACE OFFICER PERSONNEL RECORDS PURSUANT TO CALIFORNIA EVIDENCE CODE 1O43, ET SEQ.(PITCHESS MOTION)

7/24/2018: EXHIBIT-B TO PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PRODUCTION OF PEACE OFFICER PERSONNEL RECORDS PURSUANT TO CALIFORNIA EVIDENCE CODE 1O43, ET SEQ.(PITCHESS MOTION)

Order

10/9/2018: Order

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

10/10/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order

11/7/2018: Minute Order

Motion for Summary Adjudication

2/14/2019: Motion for Summary Adjudication

Motion for Summary Judgment

2/14/2019: Motion for Summary Judgment

Notice of Joinder

2/14/2019: Notice of Joinder

Notice

2/15/2019: Notice

Notice

3/29/2019: Notice

Response

4/16/2019: Response

Reply

4/25/2019: Reply

Objection

4/25/2019: Objection

Reply

4/25/2019: Reply

Reply

4/26/2019: Reply

Reply

4/26/2019: Reply

Response

4/29/2019: Response

Order

5/6/2019: Order

Answer

5/24/2019: Answer

35 More Documents Available

 

Docket Entries

  • 05/24/2019
  • Answer (CITY OF LOS ANGELES AND LOS ANGELES POLICE DEPT. TO PLTF'S SECOND AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL); Filed by City of Los Angeles Erroneously Sued As Los Angeles Police Department (Defendant); City of Los Angeles (Defendant)

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  • 05/20/2019
  • Answer; Filed by Charles Kumlander (Defendant)

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  • 05/13/2019
  • Declaration ( OF TAMERIN LEWS, GUARDIAN AD-LITEM FOR KEYSONNA YVETTE BURSEY AS SUCCESSOR IN INTEREST FOR DECEDENT KEITH MYRON BURSEY); Filed by Tamerin Lewis (Plaintiff)

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  • 05/09/2019
  • Complaint (2nd); Filed by null

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  • 05/09/2019
  • Complaint (2nd); Filed by null

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  • 05/09/2019
  • Amended Complaint (2nd); Filed by Tamerin Lewis (Plaintiff); Keysonna Yvette Bursey (Legacy Party); Tamerin Lewis (Plaintiff) et al.

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  • 05/06/2019
  • Order (re MSJ/MSA)

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  • 05/02/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion for Summary Judgment - Held

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  • 05/02/2019
  • Minute Order ( (Hearing on Motion for Summary Judgment)); Filed by Clerk

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  • 05/01/2019
  • Order (re City of Los Angeles MSA)

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185 More Docket Entries
  • 02/17/2017
  • FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL FOR: 1. WRONGFUL DEATH [C.C.P. SECTION 337.60]; BASED ON ASSAULT AND BATTERY; ETC.

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  • 01/17/2017
  • at 08:30 AM in Department 55; Unknown Event Type - Held - Motion Granted

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  • 01/17/2017
  • Minute Order

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  • 01/17/2017
  • Minute order entered: 2017-01-17 00:00:00; Filed by Clerk

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  • 01/11/2017
  • PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIVIL PROC., SECTION 170.6)

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  • 01/11/2017
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Tamerin Lewis (Plaintiff); Keysonna Yvette Bursey (Legacy Party)

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  • 01/04/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/04/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 12/30/2016
  • COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL FOR: 1. WRONGFUL DEATH (C.C.P. 337.60); BASED ON ASSAULT AND BATTERY; ETC

    Read MoreRead Less
  • 12/30/2016
  • Complaint; Filed by null

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Tentative Rulings

Case Number: BC645185    Hearing Date: March 06, 2020    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

TAMERIN LEWIS,

Plaintiff,

vs.

city of los angeles, et al.

Defendants.

Case No.:

BC 645185

Hearing Date:

March 6, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT CHARLES KUMLANDER’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES

Background

Plaintiff Keysonna Yvette Bursey, by and through her guardian ad litem, Tamerin Lewis (“Plaintiff”) initiated this wrongful death action on December 30, 2016 against Defendants City of Los Angeles (the “City”), Los Angeles Police Department (the “LAPD”), and Officer Charles Kumlander (“Kumlander”). The operative Second Amended Complaint (“SAC”), filed on May 9, 2019, asserts causes of action for wrongful death (assault and battery), wrongful death (negligence), violation of the Ralph Civil Rights Act (Civil Code section 51.7), and violation of the Banes Civil Rights Act (Civil Code section 52.3).

Plaintiff alleges that while decedent Keith Myron Bursey was a passenger in a parked vehicle, Kumlander ordered Mr. Bursey to exit the vehicle. When Mr. Bursey attempted to flee on foot, Kumlander drew his weapon and fired several shots into Mr. Bursey’s back, mortally wounding him. (SAC, ¶¶ 9-24.) Mr. Bursey was Plaintiff’s father. (SAC, ¶ 4.)

Kumlander now moves for summary judgment, or in the alternative, summary adjudication of the third (violation of the Ralph Act) cause of action. Plaintiff opposes.

Evidence

The Court grants Kumlander’s request for judicial notice.

The Court rules on Kumlander’s evidentiary objections as follows:

Objection 1: sustained

Objection 2: sustained

The Court notes that Plaintiff filed untimely evidentiary objections on December 9, 2019. When Plaintiff’s opposition was filed on November 27, 2019, no evidentiary objections pursuant to CRC 3.1352 and 3.1354 were included in the filing. Therefore, the Court declines to consider Plaintiff’s objections.

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c, subd. (p)(2).)

Discussion

Kumlander contends that he is entitled to summary judgment on the SAC because Plaintiff failed to identify Kumlander in the tort claim filed with the City and failed to allege facts demonstrating or excusing compliance in the FAC.

In order to pursue a cause of action against a public employee, the claim filed with the public entity must state the “name or names of the public employee or employees causing the injury, damage, or loss, if known.” ((Gov. Code, § 910, subd. (e).) It is undisputed that Plaintiff’s causes of action accrued on June 10, 2016, when Mr. Bursey was mortally wounded, that Plaintiff filed her tort claim with the City on June 23, 2016, and that the claims filing period ended on December 10, 2016. (UMF 1-2, 11.) It is also undisputed that Plaintiff did not identify Kumlander by name in her tort claim. (UMF 4.) Plaintiff’s original complaint was filed on December 30, 2016, and in it, Plaintiff named Kumlander as a defendant. (UMF 10.) However, the original complaint does not contain an allegation that Plaintiff did not know or have reason to know during the claims-filing period that Kumlander was the officer who shot Mr. Bursey. (UMF 9.) In the SAC, Plaintiff now alleges that she did not know or have reason to know the identity of Kumlander during the six-month statutory claim period. (SAC, ¶ 6.) Plaintiff alleges that she did not learn of Kumlander’s identity until “immediately” before filing her lawsuit on December 30, 2016. (SAC, ¶ 6.)

Kumlander contends that Plaintiff cannot prove that she did not know or have reason to know of Kumlander’s identity during the claims-filing period. In support, Kumlander presents evidence that the LAPD posted a news release regarding the shooting on July 7, 2016. (UMF 6.) On September 14, 2016, the news release was updated to identify Kumlander as the officer involved in the shooting. (UMF 7.) Plaintiff’s mother began investigating to learn the identity of the officer who shot Mr. Bursey “just before the lawsuit was filed.” (UMF 14.) As a result of an internet search, Plaintiff’s mother learned that Kumlander was the officer who shot Mr. Bursey around December 28 or 29, 2016. (UMF 15.) Plaintiff’s counsel learned of Kumlander’s identity from Plaintiff’s mother. (UMF 16.) Based on these facts, Kumlander argues that between September 14, 2016 and December 10, 2016, Plaintiff could have learned the identity of Kumlander because that information was publicly available. Indeed, a public internet search was evidently how Plaintiff’s mother learned of Kumlander’s identity. Accordingly, Kumlander asserts that Plaintiff had reason to know of Kumlander’s identity as the officer who shot

Mr. Bursey long before the expiration of the claims-filing period. Because Plaintiff never amended her claim to include Kumlander’s identity, her claim did not comply with Government Code section 910, subdivision (e). And Kumlander contends that noncompliance with Government Code section 910, subdivision (e) acts as a bar to Plaintiff’s claims against him. In support of this assertion, Kumlander cited to Government Code section 950.2 and 950.4.

Government Code section 950.2 provides: “Except as provided in Section 950.4, a cause of action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee is barred if an action against the employing public entity for such injury is barred under Part 3 (commencing with Section 900) of this division or under Chapter 2 (commencing with Section 945) of Part 4 of this division. This section is applicable even though the public entity is immune from liability for the injury.”

Government Code section 950.4 provides: “A cause of action against a public employee or former public employee is not barred by Section 950.2 if the plaintiff pleads and proves that he did not know or have reason to know, within the period for the presentation of a claim to the employing public entity as a condition to maintaining an action for such injury against the employing public entity, as that period is prescribed by Section 911.2 or by such other claims procedure as may be applicable, that the injury was caused by an act or omission of the public entity or by an act or omission of an employee of the public entity in the scope of his employment as a public employee.”

During the original hearing on this matter, Plaintiff argued that neither section 950.2 nor 950.4 is applicable to this case because the condition precedent in section 950.2 has not been established—namely, a finding that Plaintiff’s claims against the City are barred by failure to comply with claim presentation requirements. And because the application of section 950.4 is dependent on section 950.2, there is no basis to apply the requirements of section 950.4. ((See Williams v. Braslow (1986) 179 Cal.App.3d 762, 772-773 [“In sum, a tort claim can only be pursued against a public employee where a companion respondeat superior action is not barred against the employing public entity by reason of noncompliance with the claim filing procedures, except, per section 950.4, the action can proceed if the claimant can plead and prove that within 100 days of the accrual of the cause of action he did not know or have reason to know that a public employee was the cause of his injury and damages.”].) Plaintiff’s position is buttressed by Government Code section 950, which Plaintiff points out in her supplemental brief. Government Code section 950 provides: “Except as otherwise provided in this chapter, a claim need not be presented as a prerequisite to the maintenance of an action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee.” ((See also Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1034 [“Presentation of a claim against a public employee or former public employee for injury resulting from an act or omission in the scope of his public employment is not a prerequisite to the maintenance of an action against the employee, but presentation of a claim against the employing public entity is a prerequisite to bringing such an action.”].)[1]

Therefore, the Court finds that Plaintiff was not required to allege facts concerning her knowledge (or lack thereof) of Kumlander’s identity in her Complaint.

Next, Kumlander contends that the third cause of action for violation of the Ralph Civil Rights Act is without merit. “Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right.” ((Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291); (see also Civ. Code, § 51.7, subd. (b) [“All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, . . . .”].)

Plaintiff alleges that Kumlander “intentionally engaged in the use of excessive and deadly force upon” Mr. Bursey “and that said excessive and deadly force was motivated by [Mr. Bursey’s] status as an African American or his black skin tone.” (SAC, ¶ 46.) Kumlander contends that there is no evidence that Kumlander’s conduct in shooting Mr. Bursey was motivated by Mr. Bursey’s race or skin color. (UMF 18.) In support, Kumlander points to Plaintiff’s discovery responses, and in particular, Plaintiff’s response to Kumlander’s Special Interrogatory No. 24, which states: “Provide all facts in explicit detail that support, refer, or relate to your contention that ‘said excessive and deadly force was motivated by decedent Keith Bursey’s status as an African American or his black skin tone’ as alleged in Paragraph 43 of YOUR FIRST AMENDED COMPLAINT.” (Kumlander’s Ex. 8.) As noted by Kumlander, Plaintiff’s response to Special Interrogatory No. 24 is non-responsive. Plaintiff states that she “hear[s] about the LAPD killing innocent Blacks and other minorities,” that other people presented “report[s] that the Policy shot [Mr. Bursey] in the back for no good reason,” and that Mr. Bursey “presented no risk or danger” to the police. (Kumlander’s Ex. 9.) Plaintiff’s generalized opinions about the LAPD do not demonstrate that Kumlander was motivated to shoot Mr. Bursey because of his race. That there was “no good reason” to shoot Mr. Bursey also does not demonstrate that Kumlander was motivated to shoot Mr. Bursey because of his race.

Although Plaintiff disputes that she has no evidence of any race-based motivation on the part of Kumlander, Plaintiff offers no evidence that raises a triable issue of fact. First, the Court notes that to the extent that Plaintiff relies on her own Exhibit A, that exhibit is inadmissible. Second, Plaintiff’s proffer of evidence (her own Exhibit H) that Kumlander had previously encountered and expressed hostility toward Mr. Bursey is not borne out by the evidence. Exhibit H is Kumlander’s responses to Plaintiff’s Special Interrogatories, and in those responses, Kumlander states that “when he learned the name of [Mr. Bursey], he recognized the name and recalled that he had met Mr. Bursey once previously, when Mr. Bursey was sitting by railroad tracks at St. Andrews and behind the Home Depot at Western and Slauson with a gunshot wound to his thigh.” (Plaintiff’s Ex. H, Response to Special Interrogatory No. 3.) This answer does not show that Kumlander “expressed hostility” toward Mr. Bursey. More importantly, this answer does not suggest that Kumlander later shot Mr. Bursey in the back because of his race. Plaintiff also cites to her own Exhibits C, G, H, and I in support of the assertion that Kumlander was engaged in racial profiling of Mr. Bursey at the time of the shooting. (Plaintiff’s Additional Material Fact (“AMF”) 41.) However, nothing in the cited Exhibits supports a conclusion of racial profiling. Essentially, Plaintiff is arguing that because Kumlander had no cause to detain Mr. Bursey or suspect him of wrongdoing, the only explanation for the stop is racial profiling. But the Court finds that the evidence presented by Plaintiff falls short of creating a triable issue. Therefore, the Court finds that Kumlander has met his burden of showing that the third cause of action for violation of the Ralph Civil Rights Act has no merit because Plaintiff cannot prove an essential element of the claim, and that Plaintiff has failed to raise a triable issue of material fact thereto.

Conclusion

Based on the foregoing, Kumlander’s motion for summary judgment is denied. Kumlander’s motion for summary adjudication as to the third cause of action for violation of the Ralph Civil Rights Act is granted.

Kumlander is ordered to provide notice of this ruling.

DATED: March 6, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] The Court notes that section 950 is only cited in Plaintiff’s opposition to the motion for summary judgment to support the assertion that “a more accurate statement of the law is that [] in order to pursue a cause of action against a public employee, there must be a valid claim filed against the employing public entity.” (Opp’n, p. 13:17-19.) Not only is this not an accurate statement of the law, it also does not appear to accurately reflect Plaintiff’s own position as set forth in her supplemental brief.

Case Number: BC645185    Hearing Date: February 14, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

TAMERIN LEWIS,

Plaintiff,

vs.

city of los angeles, et al.

Defendants.

Case No.:

BC 645185

Hearing Date:

February 14, 2019

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT CHARLES KUMLANDER’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES

Background

Plaintiff Keysonna Yvette Bursey, by and through her guardian ad litem, Tamerin Lewis (“Plaintiff”) initiated this wrongful death action on December 30, 2016 against Defendants City of Los Angeles (the “City”), Los Angeles Police Department (the “LAPD”), and Officer Charles Kumlander (“Kumlander”). The operative Second Amended Complaint (“SAC”) asserts causes of action for wrongful death (assault and battery), wrongful death (negligence), violation of the Ralph Civil Rights Act (Civil Code section 51.7), and violation of the Banes Civil Rights Act (Civil Code section 52.3).

Plaintiff alleges that while decedent Keith Myron Bursey was a passenger in a parked vehicle, Kumlander ordered Mr. Bursey to exit the vehicle. When Mr. Bursey attempted to flee on foot, Kumlander drew his weapon and fired several shots into Mr. Bursey’s back, mortally wounding him. (SAC, ¶¶ 9-24.) Mr. Bursey was Plaintiff’s father. (SAC, ¶ 4.)

Kumlander now moves for summary judgment, or in the alternative, summary adjudication of the third (violation of the Ralph Act) cause of action. Plaintiff opposes.

Evidence

The Court grants Kumlander’s request for judicial notice.

The Court rules on Kumlander’s evidentiary objections as follows:

Objection 1: sustained

Objection 2: sustained

The Court notes that Plaintiff filed untimely evidentiary objections on December 9, 2019. When Plaintiff’s opposition was filed on November 27, 2019, no evidentiary objections pursuant to CRC 3.1352 and 3.1354 were included in the filing. Therefore, the Court declines to consider Plaintiff’s objections.

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c, subd. (p)(2).)

Discussion

Kumlander contends that he is entitled to summary judgment on the SAC because Plaintiff failed to identify Kumlander in the tort claim filed with the City and failed to allege facts demonstrating or excusing compliance in the FAC.

In order to pursue a cause of action against a public employee, the claim filed with the public entity must state the “name or names of the public employee or employees causing the injury, damage, or loss, if known.” ((Gov. Code, § 910, subd. (e).) It is undisputed that Plaintiff’s causes of action accrued on June 10, 2016, when Mr. Bursey was mortally wounded, that Plaintiff filed her tort claim with the City on June 23, 2016, and that the claims filing period ended on December 10, 2016. (UMF 1-2, 11.) It is also undisputed that Plaintiff did not identify Kumlander by name in her tort claim. (UMF 4.) Plaintiff’s original complaint was filed on December 30, 2016, and in it, Plaintiff named Kumlander as a defendant. (UMF 10.) However, the original complaint does not contain an allegation that Plaintiff did not know or have reason to know during the claims-filing period that Kumlander was the officer who shot Mr. Bursey. (UMF 9.) In the SAC, Plaintiff now alleges that she did not know or have reason to know the identity of Kumlander during the six-month statutory claim period. (SAC, ¶ 6.) Plaintiff alleges that she did not learn of Kumlander’s identity until “immediately” before filing her lawsuit on December 30, 2016. (SAC, ¶ 6.)

Kumlander contends that Plaintiff cannot prove that she did not know or have reason to know of Kumlander’s identity during the claims-filing period. In support, Kumlander presents evidence that the LAPD posted a news release regarding the shooting on July 7, 2016. (UMF 6.) On September 14, 2016, the news release was updated to identify Kumlander as the officer involved in the shooting. (UMF 7.) Plaintiff’s mother began investigating to learn the identity of the officer who shot Mr. Bursey “just before the lawsuit was filed.” (UMF 14.) As a result of an internet search, Plaintiff’s mother learned that Kumlander was the officer who shot Mr. Bursey around December 28 or 29, 2016. (UMF 15.) Plaintiff’s counsel learned of Kumlander’s identity from Plaintiff’s mother. (UMF 16.) Based on these facts, Kumlander argues that between September 14, 2016 and December 10, 2016, Plaintiff could have learned the identity of Kumlander because that information was publicly available. Indeed, a public internet search was evidently how Plaintiff’s mother learned of Kumlander’s identity. Accordingly, Kumlander asserts that Plaintiff had reason to know of Kumlander’s identity as the officer who shot

Mr. Bursey long before the expiration of the claims-filing period. Because Plaintiff never amended her claim to include Kumlander’s identity, her claim did not comply with Government Code section 910, subdivision (e). And Kumlander contends that noncompliance with Government Code section 910, subdivision (e) acts as a bar to Plaintiff’s claims against him. In support of this assertion, Kumlander cited to Government Code section 950.2 and 950.4.

Government Code section 950.2 provides: “Except as provided in Section 950.4, a cause of action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee is barred if an action against the employing public entity for such injury is barred under Part 3 (commencing with Section 900) of this division or under Chapter 2 (commencing with Section 945) of Part 4 of this division. This section is applicable even though the public entity is immune from liability for the injury.”

Government Code section 950.4 provides: “A cause of action against a public employee or former public employee is not barred by Section 950.2 if the plaintiff pleads and proves that he did not know or have reason to know, within the period for the presentation of a claim to the employing public entity as a condition to maintaining an action for such injury against the employing public entity, as that period is prescribed by Section 911.2 or by such other claims procedure as may be applicable, that the injury was caused by an act or omission of the public entity or by an act or omission of an employee of the public entity in the scope of his employment as a public employee.”

During the original hearing on this matter, Plaintiff argued that neither section 950.2 nor 950.4 is applicable to this case because the condition precedent in section 950.2 has not been established—namely, a finding that Plaintiff’s claims against the City are barred by failure to comply with claim presentation requirements. And because the application of section 950.4 is dependent on section 950.2, there is no basis to apply the requirements of section 950.4. ((See Williams v. Braslow (1986) 179 Cal.App.3d 762, 772-773 [“In sum, a tort claim can only be pursued against a public employee where a companion respondeat superior action is not barred against the employing public entity by reason of noncompliance with the claim filing procedures, except, per section 950.4, the action can proceed if the claimant can plead and prove that within 100 days of the accrual of the cause of action he did not know or have reason to know that a public employee was the cause of his injury and damages.”].) Plaintiff’s position is buttressed by Government Code section 950, which Plaintiff points out in her supplemental brief. Government Code section 950 provides: “Except as otherwise provided in this chapter, a claim need not be presented as a prerequisite to the maintenance of an action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee.” ((See also Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1034 [“Presentation of a claim against a public employee or former public employee for injury resulting from an act or omission in the scope of his public employment is not a prerequisite to the maintenance of an action against the employee, but presentation of a claim against the employing public entity is a prerequisite to bringing such an action.”].)[1]

Therefore, the Court finds that Plaintiff was not required to allege facts concerning her knowledge (or lack thereof) of Kumlander’s identity in her Complaint.

Conclusion

For the foregoing reasons, Kumlander’s motion for summary judgment is denied.

Plaintiff is ordered to provide notice of this ruling.

DATED: February 14, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] The Court notes that section 950 is only cited in Plaintiff’s opposition to the motion for summary judgment to support the assertion that “a more accurate statement of the law is that [] in order to pursue a cause of action against a public employee, there must be a valid claim filed against the employing public entity.” (Opp’n, p. 13:17-19.) Not only is this not an accurate statement of the law, it also does not appear to accurately reflect Plaintiff’s own position as set forth in her supplemental brief.

Case Number: BC645185    Hearing Date: December 12, 2019    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

TAMERIN LEWIS,

Plaintiff,

vs.

city of los angeles, et al.

Defendants.

Case No.:

BC 645185

Hearing Date:

December 12, 2019

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT CHARLES KUMLANDER’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES

Background

Plaintiff Keysonna Yvette Bursey, by and through her guardian ad litem, Tamerin Lewis (“Plaintiff”) initiated this wrongful death action on December 30, 2016 against Defendants City of Los Angeles (the “City”), Los Angeles Police Department (the “LAPD”), and Officer Charles Kumlander (“Kumlander”). The operative Second Amended Complaint (“SAC”) asserts causes of action for wrongful death (assault and battery), wrongful death (negligence), violation of the Ralph Civil Rights Act (Civil Code section 51.7), and violation of the Banes Civil Rights Act (Civ. Code,

§ 52.3).

Plaintiff alleges that while decedent Keith Myron Bursey was a passenger in a parked vehicle, Kumlander ordered Mr. Bursey to exit the vehicle. When Mr. Bursey attempted to flee on foot, Kumlander drew his weapon and fired several shots into Mr. Bursey’s back, mortally wounding him. (SAC, ¶¶ 9-24.) Mr. Bursey was Plaintiff’s father. (SAC, ¶ 4.)

Kumlander now moves for summary judgment, or in the alternative, summary adjudication of the third (violation of the Ralph Act) cause of action. Plaintiff opposes.

Evidence

The Court grants Kumlander’s request for judicial notice.

The Court rules on Kumlander’s evidentiary objections as follows:

Objection 1: sustained

Objection 2: sustained

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)

Discussion

Kumlander contends that he is entitled to summary judgment on the SAC because Plaintiff failed to identify Kumlander in the tort claim filed with the City and failed to allege facts demonstrating or excusing compliance in the FAC.

In order to pursue a cause of action against a public employee, the claim filed with the public entity must state the “name or names of the public employee or employees causing the injury, damage, or loss, if known.” ((Gov. Code, § 910(e)); (see also Gov. Code, § 950.2 [barring lawsuits against a public employee if a government tort claim is not presented at all or an insufficient or defective claim is presented]); (Gov. Code, § 950.4 [section 950.2 bar is inapplicable “if the plaintiff pleads and proves that he did not know or have reason to know, within the period for the presentation of a claim . . . that the injury was caused by an act or omission of the public entity or by an act or omission of an employee of the public entity in the scope of his employment as a public employee”].) Therefore, pursuant to Government Code sections 950.2 and 950.4, if the identity of the public employee is unknown, the plaintiff must plead and prove that within the time for filing the claim, he or she “did not know or have reason to know” of such identity. ((Williams v. Braslow (1986) 179 Cal.App.3d 762, 773.) The standard for showing that a plaintiff did not “have reason to know” of the identity of a public employee is one of reasonable diligence. ((Leake v. Wu (1976) 64 Cal.App.3d 668, 673-674 [granting summary judgment in favor of the defendant doctor, who was a county employee, because the plaintiff had failed to file a timely government tort claim, and the plaintiff did not qualify for the exception under section 950.4 because the plaintiff failed to show “[r]easonable diligence” such as “simple inquiry to the hospital[] to determine whether the doctors might have been county employees”].)

It is undisputed that Plaintiff’s causes of action accrued on June 10, 2016, when

Mr. Bursey was mortally wounded, that Plaintiff filed her tort claim with the City on June 23, 2016, and that the claims filing period ended on December 10, 2016. (UMF 1-2, 11.) It is also undisputed that Plaintiff did not identify Kumlander by name in her tort claim. (UMF 4.) Plaintiff’s original complaint was filed on December 30, 2016, and in it, Plaintiff named Kumlander as a defendant. (UMF 10.) However, the original complaint does not contain an allegation that Plaintiff did not know or have reason to know during the claims-filing period that Kumlander was the officer who shot Mr. Bursey. (UMF 9.) In the SAC, Plaintiff now alleges that she did not know or have reason to know the identity of Kumlander during the six-month statutory claim period. (SAC, ¶ 6.) Plaintiff alleges that she did not learn of Kumlander’s identity until “immediately” before filing her lawsuit on December 30, 2016. (SAC, ¶ 6.)

Kumlander contends that Plaintiff cannot prove that she did not know or have reason to know of Kumlander’s identity during the claims-filing period. In support, Kumlander presents evidence that the LAPD posted a news release regarding the shooting on July 7, 2016. (UMF 6.) On September 14, 2016, the news release was updated to identify Kumlander as the officer involved in the shooting. (UMF 7.) Plaintiff’s mother began investigating to learn the identity of the officer who shot Mr. Bursey “just before the lawsuit was filed.” (UMF 14.) As a result of an internet search, Plaintiff’s mother learned that Kumlander was the officer who shot Mr. Bursey around December 28 or 29, 2016. (UMF 15.) Plaintiff’s counsel learned of Kumlander’s identity from Plaintiff’s mother. (UMF 16.) Based on these facts, Kumlander argues that between September 14, 2016 and December 10, 2016, Plaintiff could have learned the identity of Kumlander because that information was publicly available. Indeed, a public internet search was evidently how Plaintiff’s mother learned of Kumlander’s identity. Accordingly, Kumlander asserts that Plaintiff had reason to know of Kumlander’s identity as the officer who shot Mr. Bursey long before the expiration of the claims-filing period. Because Plaintiff never amended her claim to include Kumlander’s identity, her claim did not comply with Government Code section 910, subdivision (e).

Plaintiff does not dispute the above facts, but she argues that the rule set forth in Williams does not apply to her case. The Court notes that although Plaintiff contends that “[t]he law in this area has been be [sic] developed and refined over the last 33 years since then [sic] Williams was decided,” Plaintiff presents no summary or analysis of any cases that have “developed” or “refined” the rule set forth in Williams. (Opp’n, p. 4:8-9.) Plaintiff next argues that the “real issue” is whether Plaintiff’s tort claim substantially complied with the requirements under the Tort Claims Act and whether her claim constituted a “claim as presented” such that the defense-waiver provisions of the Tort Claims Act were triggered.

“Under the doctrine of substantial compliance the court may conclude a claim is valid if it substantially complies with all of the statutory requirements for [a] valid claim even though it is technically deficient in one or more particulars.” ((Santee v. Santa Clara County Office of Educ. (1990) 220 Cal.App.3d 702, 713.) “The doctrine is based on the premise that substantial compliance fulfills the purpose of the claims statutes, namely, to give the public entity timely notice of the nature of the claim so that it may investigate and settle those having merit without litigation.” (Ibid. .) “The doctrine of substantial compliance is normally raised where a timely but deficient claim has been presented to the public entity.” (Ibid. .) Plaintiff contends that her government tort claim substantially complied with the statutory requirements even though Kumlander was not specifically identified in the claim. Plaintiff argues that the City was given sufficient and timely notice of the nature of her claims because it named Mr. Bursey, included appropriate addresses, and provided details about the circumstances of the shooting incident and the damages incurred.[1] (Baker Decl., ¶ 3, Ex. 2.) Kumlander counters that substantial compliance “cannot cure total omission of an essential element from the claim.” (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1083.) Kumlander characterizes his identity as an essential element of the claim. (Ibid. (noting that the plaintiff’s purported government tort claim failed to substantially comply with statutory requirements because it, among other things, failed to identify the defendants named in the eventual lawsuit).)

The statutory requirement at issue is Government Code section 910, subdivision (e): “The name or names of the public employee or employees causing the injury, damage, or loss, if known.” (Gov. Code, section 910, subd. (e) (emphasis added).) The inclusion of the qualifier “if known” suggests that the names of public employees are not required to be included in a claim if their identities are unknown. Therefore, the failure to include the name of an unknown employee does not render a government tort claim non-compliant, and so it appears that the doctrine of substantial compliance does not apply in this situation. As argued by Kumlander, the position he is taking is not that the tort claim was non-compliant at the time it was filed, but that because Plaintiff asserts that Kumlander’s identity was unknown to Plaintiff during the claims-filing period, Plaintiff is now required, pursuant to Williams, to plead and prove that she had no reason to know of his identity during that period.

For similar reasons, the Court finds Plaintiff’s argument that her government tort claim is a “claim as presented” unavailing. “A ‘claim as presented’ is a claim that is defective in that it fails to comply substantially with Government Code sections 910 and 910.2, but nonetheless puts the public entity on notice that the claimant is attempting to file a valid claim and that litigation will result if it is not paid or otherwise resolved.” (Alliance Financial v. City and County of San Francisco (1998) 64 Cal.App.4th 635, 643.) “A ‘claim as presented’ triggers a duty on the part of the governmental entity to notify the claimant of the defects or omissions in the claim. A failure to notify the claimant of the deficiencies in a ‘claim as presented’ waives any defense as to its sufficiency. (Ibid. .) Because Plaintiff’s government tort claim did comply with Government Code section 910, it is not a “claim as presented,” and the City’s failure to give notice of non-existent deficiencies does not prevent Kumlander from now arguing that Plaintiff failed to plead and prove that she had no reason to know of his identity during the claims-filing period.

The Court finds that Kumlander has demonstrated that Plaintiff’s claims against him have no merit because Plaintiff cannot prove that she did not know or have reason to know Kumlander’s identity within the statutory period to amend her government tort claim to conform to Government Code section 910. The Court also finds that Plaintiff has failed to raise a triable issue of material fact thereto. Therefore, the Court finds that Kumlander is entitled to summary judgment, and that it is unnecessary to determine whether Kumlander is separately entitled to summary adjudication on the third cause of action for violation of the Ralph Act.

Conclusion

For the foregoing reasons, Kumlander’s motion for summary judgment is granted.

The Court orders Kumlander to file and serve a proposed form of judgment within 10 days of the date of this order.

Kumlander is ordered to provide notice of this ruling.

DATED: December 12, 2019 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] The Court notes that Plaintiff also argues that the government tort claim was substantially compliant because the City knew that Kumlander was the officer who shot and killed Mr. Bursey. Nevertheless, “[i]t is well-settled that claims statutes must be satisfied even in face of the public entity’s actual knowledge of the circumstances surrounding the claim.” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455.)