This case was last updated from Los Angeles County Superior Courts on 06/03/2022 at 08:49:55 (UTC).

TODD BARTON VS PATRICK J. FUREY, MAYOR, ET AL.

Case Summary

On 10/09/2020 TODD BARTON filed a Personal Injury - Motor Vehicle lawsuit against PATRICK J FUREY, MAYOR. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are DANIEL M. CROWLEY, DEIRDRE HILL and DAVID J. COWAN. The case status is Disposed - Dismissed.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8796

  • Filing Date:

    10/09/2020

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DANIEL M. CROWLEY

DEIRDRE HILL

DAVID J. COWAN

 

Party Details

Plaintiff

BARTON TODD

Defendants

EVE BERG CHIEF OF POLICE

PATRICK J. FUREY MAYOR

CRAIG BILEZERIAN DIRECTOR OF PUBLIC WORKS

THE CITY OF TORRANCE

Attorney/Law Firm Details

Defendant and Plaintiff Attorneys

THOMPSON-BELL DELLA DIANA

LITVIN JEANNE-MARIE

 

Court Documents

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER OF DISMISSAL AND ENTRY OF JUDGMENT

10/13/2021: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER OF DISMISSAL AND ENTRY OF JUDGMENT

Declaration in Support of Ex Parte Application

10/13/2021: Declaration in Support of Ex Parte Application

Order - Dismissal

10/14/2021: Order - Dismissal

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER OF DISMISSAL AN...)

10/14/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER OF DISMISSAL AN...)

Notice of Entry of Judgment / Dismissal / Other Order

10/14/2021: Notice of Entry of Judgment / Dismissal / Other Order

Notice of Ruling

10/15/2021: Notice of Ruling

Declaration - DECLARATION OBJECTION TO DEFENDANT'S DEMURRER

8/6/2021: Declaration - DECLARATION OBJECTION TO DEFENDANT'S DEMURRER

Clerks Certificate of Service By Electronic Service

8/6/2021: Clerks Certificate of Service By Electronic Service

Objection - OBJECTION OBJECTION TO DEFENDANT'S DEMURRER

8/6/2021: Objection - OBJECTION OBJECTION TO DEFENDANT'S DEMURRER

Declaration - DECLARATION OF JEANNE-MARIE K. LITVIN IN SUPPORT OF REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

8/10/2021: Declaration - DECLARATION OF JEANNE-MARIE K. LITVIN IN SUPPORT OF REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

Reply - REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

8/10/2021: Reply - REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

Notice of Ruling

8/17/2021: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)

8/17/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)

Notice Re: Continuance of Hearing and Order

9/2/2021: Notice Re: Continuance of Hearing and Order

Case Management Statement

7/29/2021: Case Management Statement

Declaration - DECLARATION OF JEANNE-MARIE K. LITVIN IN SUPPORT OF DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

7/6/2021: Declaration - DECLARATION OF JEANNE-MARIE K. LITVIN IN SUPPORT OF DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

Demurrer - without Motion to Strike

7/6/2021: Demurrer - without Motion to Strike

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

7/9/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

49 More Documents Available

 

Docket Entries

  • 04/08/2022
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Non-Jury Trial - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 03/25/2022
  • Docketat 10:00 AM in Department 28, Daniel M. Crowley, Presiding; Final Status Conference - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 11/04/2021
  • Docketat 08:30 AM in Department M, Deirdre Hill, Presiding; Hearing on Demurrer - without Motion to Strike - Not Held - Taken Off Calendar by Court

    Read MoreRead Less
  • 11/02/2021
  • Docketat 08:30 AM in Department M, Deirdre Hill, Presiding; Case Management Conference - Not Held - Vacated by Court

    Read MoreRead Less
  • 10/21/2021
  • Docketat 08:30 AM in Department M, Deirdre Hill, Presiding; Case Management Conference - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 10/15/2021
  • DocketNotice of Ruling; Filed by The City of Torrance (Defendant); Patrick J. Furey, Mayor (Defendant); Craig Bilezerian, Director of Public Works (Defendant) et al.

    Read MoreRead Less
  • 10/14/2021
  • Docketat 08:30 AM in Department M, Deirdre Hill, Presiding; Hearing on Ex Parte Application (for an Order of dismissal and entry of judgment) - Held - Motion Granted

    Read MoreRead Less
  • 10/14/2021
  • DocketOrder - Dismissal; Filed by Clerk

    Read MoreRead Less
  • 10/14/2021
  • DocketNotice of Entry of Judgment / Dismissal / Other Order; Filed by Clerk

    Read MoreRead Less
  • 10/14/2021
  • DocketMinute Order ( (Hearing on Ex Parte Application for an Order of dismissal an...)); Filed by Clerk

    Read MoreRead Less
56 More Docket Entries
  • 01/12/2021
  • DocketMinute Order ( (Defendants' Demurrer to Complaint - without Motion to Strike)); Filed by Clerk

    Read MoreRead Less
  • 11/30/2020
  • DocketDemurrer - without Motion to Strike; Filed by Patrick J. Furey, Mayor (Defendant); Craig Bilezerian, Director of Public Works (Defendant); Eve Berg, Chief of Police (Defendant)

    Read MoreRead Less
  • 11/30/2020
  • DocketDeclaration (of Jeanne-Marie K. Litvin in support of Demurrer to Plaintiff's Complaint); Filed by Patrick J. Furey, Mayor (Defendant); Craig Bilezerian, Director of Public Works (Defendant); Eve Berg, Chief of Police (Defendant)

    Read MoreRead Less
  • 10/26/2020
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Date); Filed by Clerk

    Read MoreRead Less
  • 10/26/2020
  • DocketPI General Order; Filed by Clerk

    Read MoreRead Less
  • 10/09/2020
  • DocketComplaint; Filed by Todd Barton (Plaintiff)

    Read MoreRead Less
  • 10/09/2020
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

    Read MoreRead Less
  • 10/09/2020
  • DocketCivil Case Cover Sheet; Filed by Todd Barton (Plaintiff)

    Read MoreRead Less
  • 10/09/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less
  • 10/09/2020
  • DocketSummons (on Complaint); Filed by Clerk

    Read MoreRead Less

Tentative Rulings

b"

Case Number: *******8796 Hearing Date: August 17, 2021 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

TODD BARTON,

Plaintiff,

Case No.:

*******8796

vs.

[Tentative] RULING

PATRICK J. FUREY, et al.,

Defendants.

Hearing Date: August 17, 2021

Moving Parties: Defendants, The City of Torrance, Patrick J. Furey, Craig Bilezerian, and Eve Berg

Responding Party: Plaintiff, Todd Barton

Demurrer to Second Amended Complaint

The court considered the moving, opposition, and reply papers.

RULING

Defendants’ Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED, with 20 days leave to amend.

BACKGROUND

On October 9, 2020, Todd Barton (self-represented) filed a Complaint against the City of Torrance, Patrick J. Furey, Mayor of City of Torrance, Craig Bilezerian, Director of Public Works for the City of Torrance, and Eve Berg, Chief of Police for the City of Torrance for (1) motor vehicle negligence, (2) general negligence, and (3) intentional tort (14 USC 1983), (4) intentional tort (18 USC 242), (5) intentional tort (18 USC 241). Plaintiff alleges that he was involved in a vehicular accident with Garrett Joseph Carson on October 9, 2018.

On November 30, 2020, defendants filed a Demurrer to plaintiff’s Complaint.

On January 12, 2021, the court sustained defendants’ Demurrer to plaintiff’s Complaint, with leave to amend.

On February 9, 2021, plaintiff filed a First Amended Complaint alleging the following causes of action against defendants: (1) deprivation of rights under fifth and fourteenth amendments of U.S. Constitution (42 USC ; 1983); (2) deprivation of rights under fifth and fourteenth amendments of U.S. Constitution (42 USC ; 1983); (3) deprivation of rights under fifth and fourteenth amendments of U.S. Constitution (42 USC ; 1983); (4) tort; (5) deprivation of rights under fifth and fourteenth amendments of U.S. Constitution (42 USC ; 1983); (6) deprivation of rights under fifth and fourteenth amendments of U.S. Constitution (42 USC ; 1983); (7) tort; (8) common law tort; (9) tort – vicarious liability; (10) tort; (11) tort; and (12) tort duty in negligence.

On March 16, 2021, defendants filed a Demurrer to plaintiff’s First Amended Complaint.

On May 7, 2021, the court sustained defendants’ Demurrer to plaintiff’s First Amended Complaint, with leave to amend.

On June 7, 2021, plaintiff filed a Second Amended Complaint alleging the following causes of action against defendants: (1) deprivation of rights under fifth and fourteenth amendments of U.S. Constitution (42 USC ; 1983); (2) deprivation of rights under fifth and fourteenth amendments of U.S. Constitution (42 USC ; 1983); (3) deprivation of rights under fifth and fourteenth amendments of U.S. Constitution (42 USC ; 1983); (4) negligence; (5) deprivation of rights under fifth and fourteenth amendments of U.S. Constitution (42 USC ; 1983); (6) deprivation of rights under fifth and fourteenth amendments of U.S. Constitution (42 USC ; 1983); (7) negligence; (8) common law tort; (9) vicarious liability; (10) vicarious liability; (11) vicarious liability; (12) negligence; (13) negligence; and (14) tort.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal App.4th 740, 747.)

DISCUSSION

Defendants demur to plaintiff’s Second Amended Complaint on four (4) grounds. First, defendants argue that the Second Amended Complaint fails to state sufficient facts to constitute the causes of action alleged. Second, defendants argue that the Second Amended Complaint is uncertain and ambiguous. Third, defendants argue that plaintiff has failed to comply with the Government Claims Act. And, fourth, defendants argue that plaintiff has failed to comply with the statute of limitations. The court notes that defendants did not demur to any specific causes of action, but, rather, generally contend that the causes of action asserted within the Second Amended Complaint are not supported by plaintiff’s factual allegations.

Plaintiff’s Second Amended Complaint contends that, on October 9, 2018, he was involved in an automobile accident at the intersection of Torrance Boulevard and Palos Verdes Boulevard in the City of Torrance. (SAC, ¶ 10.) Plaintiff alleges he was driving in his car with his two children when a second car, driven by California Highway Officer Garett Joseph Larson (“Larson”), collided with his vehicle. (Id., ¶ 11.) Plaintiff alleges his car was “totaled” as a result of the accident. (Id., ¶ 13.) Plaintiff states that following the accident, Larson exited his vehicle, informed plaintiff he was not hurt, and subsequently, called his Commanding Officer Tariq Johnson (“Johnson”). (Id., ¶ 16.) Larson put his phone on speakerphone to allow Johnson to speak with Plaintiff. (Ibid.) Johnson allegedly attempted to deter plaintiff from calling 911 because plaintiff was in the middle of a busy intersection. (Ibid.) However, despite Johnson’s statements, plaintiff decided to call 911. (Id., ¶ 17.)

When Torrance police officers arrived at the scene of the accident, plaintiff contends that Larson attempted to interrupt and interject with the officers’ investigation and, as a result, was removed from the scene. (Id., ¶ 19.) Plaintiff contends that many officers personally knew Larson. (Id., ¶¶ 20-21.) Plaintiff contends Larson was cited at the scene for failing to yield at a right of way after stopping at a stop sign. (Id., 23.) Thereafter, plaintiff took a LYFT to Little Company of Mary Emergency Room. (Id., ¶ 23.)

Fifteen (15) days after the accident, plaintiff attempted to obtain a copy of the police report from the accident. (Id., ¶ 24.) Plaintiff was given an “incomplete” police report as the accident was still under investigation. (Id., ¶¶ 24-25.) Plaintiff attempted to obtain a complete police report over the course of the next six (6) months, to no avail as officers informed plaintiff the investigation was ongoing. (Ibid.) Plaintiff received a “final Official Torrance Police Report” after six (6) months elapsed from the date of the accident. (Id., ¶ 36.) Plaintiff alleges that the delay in obtaining the police report constituted a violation of his procedural due process rights. (Id., ¶¶ 26-28.)

The final police report reflected that plaintiff, rather than Larson, was being cited for entering a turning lane too early. (Id., ¶ 36.) Plaintiff alleges that this finding constitutes a fabrication on the part of the Torrance Police Department, Larson, and Johnson. (Id., ¶¶ 43, 45-51.) Plaintiff contends that, in drafting the report, Torrance police officers considered one (1) of six (8) possible videos of the accident. (Id., ¶ 36.) Plaintiff alleges that Torrance police officers subjectively picked this single video because it did not show Larson’s wrongful conduct. (Id., ¶¶ 45-48.) Plaintiff further contends that he was not cited on the scene, but was cited after the fact “on paper only”. (Id., ¶ 41.) Plaintiff contends this after-the-fact citation constitutes a denial of due process. (Ibid.) Plaintiff additionally contends the police report is a fabrication because it “was fraudulently altered to create a false citation during the prejudiced, obstructive, and fraudulent investigation and then predated police report to look as if the report was completed earlier.” (Id., ¶¶ 41-43.)

Plaintiff also contends that Torrance police officers and Larson visited the home of “Mr. and Mrs. Westbrook” in their “official capacity” in order to obtain video surveillance of the accident. (Id., ¶ 30.) Mr. and Mrs. Westbrook allegedly live in close proximity to where the accident occurred and obtained surveillance of the accident pursuant to a NEST camera. (Id., ¶ 31.) Mr. and Mrs. Westbrook provided Torrance police officers and Larson copies of the videos. (Id., ¶ 30.) When plaintiff asked Mr. Westbrook for copies of the videos, Mr. Westbrook did not respond to plaintiff’s inquiries. (Id., ¶¶ 31, 33.) Plaintiff further states that Mr. and Mrs. Westbrook knew Larson personally. (Id., ¶ 32.) Plaintiff alleges that this relationship constitutes a “major conflict of interest and further creates prejudice” against plaintiff. (Id., ¶ 34.) Plaintiff further alleges that the “in person official visit to the Westbrook home . . . [constitutes a] violation on behalf of Larson and [the] Torrance Police Department because they used their official positions as an advantage and gain in this instant matter.” (Id., ¶ 35.)

Lastly, plaintiff contends that the City of Torrance “knew” that the subject intersection “was a problem intersection” and failed to erect a safety sign to serve the safety of the public.” (Id., ¶ 50.)

A. Uncertainty

The court finds that the allegations made within plaintiff’s Second Amended Complaint are uncertain. First, plaintiff does not allege facts explaining how the delayed production of the final police report caused him harm or prejudice. Second, plaintiff purportedly attached the initial, incomplete police report as “Exhibit E”. (SAC, ¶ 23.) However, plaintiff has failed to attach any exhibit titled “Exhibit E”. Further, plaintiff has not attached a copy of the alleged incomplete police report or the final police report. Third, while plaintiff contends the final police report “was fraudulently altered to create a false citation during the prejudiced, obstructive, and fraudulent investigation and then predated police report to look as if the report was completed earlier,” this allegation is unclear and vague. It is unclear how the police report was altered to create a false citation. Additionally, the significance of plaintiff’s assertion that the police report was “predated” is unclear. Lastly, while plaintiff purportedly contends that the subject intersection constituted a dangerous condition, plaintiff fails to identify the dangerous condition. Plaintiff merely states defendants failed to erect a safety sign. However, plaintiff fails to identify the alleged defect which allegedly makes the intersection a dangerous condition.

B. Second Amended Complaint Fails to State Cause of Action

(1) First, Second, Third, Fifth, and Sixth Causes of Action

42 U.S.C. section 1983 provides: “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 USC ; 1983.) Under Monell v. Dep’t of Social Services of New York (Monell), a municipality defendant cannot be liable for vicarious tortious acts of its employees brought under ; 1983, unless the municipality “implements or executes a policy . . . regulation or decision officially adopted and promulgated by that body’s officers.” (Monell v. Dep’t of Social Services of New York (1978) 436 U.S. 658, 694.) Further, the public entity will only be liable if the plaintiff has shown a constitutional violation that was caused by an expressed policy that is “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” (Id. at 691.)

Here, Plaintiff’s first, second, third, fifth, and sixth causes of action are insufficient pursuant to the principles articulated within Monell. Plaintiff’s first, third, and fifth causes of action allege that defendants City of Torrance, Furey, and Berg violated plaintiff’s procedural due process rights by withholding, altering, and misrepresenting the police report. Plaintiff’s second and sixth causes of action allege that defendants City of Torrance and Berg violated plaintiff’s procedural due process rights by withholding seven (7) videos depicting the subject vehicle accident from plaintiff. These causes of action are insufficient pursuant to Monell because Plaintiff does not identify any policy, regulation, or officially adopted and promulgated decision by defendants which serves as the basis of his alleged procedural due process violation. Accordingly, Plaintiff’s first, second, third, fifth, and sixth causes of action are insufficient.

(2) Fourth and Seventh through Fourteenth Causes of Action

The California Tort Claims Act provides sovereign immunity to California governmental entities. Government Code ; 815 states, “[e]xcept as otherwise provided by statue, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employee or any other person.” (Gov. Code, ; 815, italics added.) In order to properly assert a claim in tort against a California governmental entity, a plaintiff must demonstrate that a statute provides a basis for liability. (Williams v. Horvath (1976) 16 Cal.3d 834, 832-838 [“Government Code section 815 restores sovereign immunity in California except as provided in the Tort Claims Act or other statute. Thus the intent of the [A]ct is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability rigidly delineated circumstances: immunity is waived only if the various requirements of the [A]ct are satisfied”].)

Here, plaintiff’s fourth and seventh through fourteenth causes of action are insufficient because plaintiff has failed to provide a statutory basis for his tort claims based in negligence. Plaintiff’s fourth cause of action for negligence alleges that defendant Furey breached a duty of care “by failing to oversee subordinates and act in his role as Mayor.” (SAC, ¶ 65.) Plaintiff’s seventh cause of action for negligence alleges that defendant Bilezerian breached a duty of care “by failing to oversee subordinates and act in his role as Director of Public Works”. (Id., ¶ 68.) Plaintiff’s eighth cause of action for common law tort alleges that defendants City of Torrance, Fury, Berg, and Bilezerian breached a duty of care “in failure to act in accordance to common law.” (Id., ¶ 69.) Plaintiff’s ninth, tenth, and eleventh causes of action for vicarious liability allege that defendants City of Torrance, Berg, and Fury were negligent in overseeing their employees and subordinates and ensuring that Plaintiff obtained the full police report. (Id., ¶¶ 70-72.) Plaintiff’s twelfth and eleventh causes of action for negligence allege that defendants City of Torrance and Berg breached a duty of care “by failing to oversee subordinates and act in their [respective] role[s]” as a creator of policy and Mayor. (Id., ¶¶ 73-74.) Lastly, Plaintiff’s fourteenth cause of action for “Tort, Duty in Negligence” alleges that defendants City of Torrance, Fury, Berg, and Bilezerian breached a duty of care “and are negligent” because all were aware of the dangers of the intersection at Torrance Boulevard and Palos Verdes Boulevard. (Id., ¶¶ 75.) Plaintiff’s causes of action are insufficient as Plaintiff has failed to articulate a statute which overcomes the Tort Claims Act’s provision of sovereign immunity, and permits Plaintiff to assert tort causes of action against defendants. Accordingly, Plaintiff’s fourth and seventh through fourteenth causes of action are insufficient.

(3) Dangerous Condition of Public Property

Further, a number of statements within plaintiff’s Second Amended Complaint appear to allege a dangerous condition of public property against defendants City of Torrance and Bilezerian. (See SAC, ¶¶ 40, 48, 50-51, 68, 75.) To the extent plaintiff asserts such an allegation, plaintiff has insufficiently stated facts to survive demurrer.

Government Code ; 835 states: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, ; 835.)

Here, plaintiff has failed to plead facts demonstrating that the intersection was in a dangerous condition at the time of the accident, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of injury, and that a public employee negligently caused the dangerous condition or that a public entity was aware of the dangerous condition. As plaintiff has failed to plead facts evidencing the elements articulated within Government Code ; 835, plaintiff’s allegations of dangerous condition are insufficient.

C. Government Claims Act

Under the Torts Claims Act, as described in Government Code ; 911.2(a), a mandatory six-month statute of limitations from the accrual of the cause of action applies to all claims relating to a cause of action for death or for injury to a person.” (Gov. Code, ; 911.2.) Before a suit for damages may be filed against a public entity, a claimant must present a timely written claim to the public entity and the claim must have been acted upon by the board or deemed rejected. (Gov. Code ;945.4; Munoz v. State of Cal. (1995) 33 Cal. App. 4th 1767, 1777.) A claim relating to a cause of action for injury to person or personal property must be presented to the public entity not later than six months after the accrual of the cause of action. (Gov. Code ;911.2; Munoz, supra, 33 Cal. App. 4th at 1777.)

If a claimant fails to present a claim within the statutory period, he may apply “within a reasonable time not to exceed one year after the accrual of the cause of action” to the public entity for leave to present a late claim. (Gov. Code ;911.4.) If the public entity denies leave to present a late claim, a claimant may petition the Court under Gov. Code ;946.6 for relief from the requirements of Government Code ;945.4. (Munoz, supra, 33 Cal. App. 4th at 1777.) Additionally, a petition pursuant to Government Code ;946.6 must be “filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.” (Gov. Code ;946.6(b).) This requirement is mandatory. (Lineaweaver v. S. Cal. Rapid Transit Dist. (1983) 139 Cal. App. 3d 738, 741.)

Here, plaintiff has failed to allege facts demonstrating that he has complied with the requirements of Government Code ; 945.4. Plaintiff fails to allege that he made a timely claim for his injury to the public-entity defendants within the six (6) month time period. Alternatively, plaintiff fails to allege that he made an untimely claim for his injury to the public-entity defendants, and defendants subsequently provided plaintiff with leave to present a late claim. Lastly, plaintiff's Second Amended Complaint does not request relief from the requirements of Government Code ; 945.4. Accordingly, plaintiff has failed to allege facts demonstrating that he has complied with the requirements of Government Code ;945.4.

D. Statute of Limitations

Defendants contend that plaintiff’s Second Amended Complaint is barred by the statute of limitations because the claims made within the Second Amended Complaint do not relate-back to the initial Complaint filed by plaintiff. Here, the Court finds that the statute of limitations does not appear to bar plaintiff’s claims within the Second Amended Complaint.

E. Leave to Amend

The court notes that plaintiff’s Second Amended Complaint contains identical defects to the First Amended Complaint. It appears clear that, in drafting his Second Amended Complaint, plaintiff has failed to take instruction from the court’s Order Sustaining Defendants’ Demurrer to Plaintiff’s First Amended Complaint. The court will provide plaintiff with leave to amend his Second Amended Complaint, however this is the final opportunity for amendment.

Defendants’ Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED, with 20 days leave to amend.

Defendants are ordered to give notice of the ruling.

"


Case Number: *******8796    Hearing Date: May 7, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

TODD BARTON,

Plaintiff,

Case No.:

*******8796

vs.

[Tentative] RULING

PATRICK J. FUREY, MAYOR, et al.,

Defendants.

Hearing Date: May 7, 2021

Moving Parties: Defendants City of Torrance, Patrick J. Furey, Craig Bilezerian, and Eve Berg

Responding Party: Plaintiff Todd Barton

Demurrer to FAC

The court considered the moving, opposition (“objection”), and reply papers.

RULING

The demurrer to the FAC is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

BACKGROUND

On October 9, 2020, Todd Barton (self-represented) filed a complaint against Patrick J. Furey, Mayor, Craig Bilezerian, Director of Public Works, Eve Berg, Chief of Police, and the City of Torrance for (1) motor vehicle negligence, (2) general negligence, and (3) intentional tort (14 USC 1983), (4) intentional tort (18 USC 242), (5) intentional tort (18 USC 241). Plaintiff alleges that he was involved in a vehicular accident with Garrett Joseph Carson on October 9, 2018.

On January 12, 2021, the court sustained defendants’ demurrer with leave to amend, finding that there were no allegations demonstrating defendants’ misconduct or involvement in the accident.

On February 9, 2021, plaintiff filed a FAC.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Defendants demur to the FAC on the grounds that it fails to state sufficient facts to constitute a cause of action, is uncertain, plaintiff failed to comply with Gov. Claims Act, and the FAC is barred by the statute of limitations because it does not relate back.

The court note that defendants did not demur to any individual cause of action.

In the FAC, plaintiff alleges that on October 9, 2018, at 5:35 p.m., he was travelling on Torrance Blvd., westbound with his two minor children, approaching a red light at the intersection of Torrance Blvd. and Palos Verdes Blvd. California Highway Patrol officer Garrett Joseph Larson proceeded from Wood Street, southbound and rapidly accelerated across two lanes of traffic, “plowing into” plaintiff’s passenger front panel, “slamming plaintiff into the oncoming lane.” Plaintiff’s car was “totaled,” and plaintiff suffered head and body injuries. Plaintiff approached Larson, Larson replied that he was ok, and offered his phone to plaintiff, with his commanding officer, in an attempt to call 911. Plaintiff decided to call 911. Larson continued to interfere with Torrance PD’s investigation by interrupting and interjecting to the point where he was forcibly removed by the Torrance police officers.

Plaintiff further alleges that he took a Lyft to the hospital. Larson was cited at the scene of the accident for failure to yield right of way after stopping at stop sign, citing to a police report. In around 15 days, plaintiff went to the Torrance PD to get a copy of the police report and he was given an incomplete police report. Barton then made several attempts to get a copy of the police report over the next six months. Each time, he was given an Official Incomplete Report stating that the accident was still under official investigation. The Torrance PD “knowingly and willingly acted prejudicial against Barton by obstructing, delaying, and denying a police report of a routine traffic accident.” By their actions, they violated Barton’s procedural due process rights. By failing to give him the police report in a reasonable amount of time, Barton returned to the scene of the accident and discovered that local residents (the Westbrooks) had several video surveillance cameras that recorded the footage of the accident.

Plaintiff further alleges that the Westbrooks informed Barton that Larson and several Torrance police officers visited their home together in an “official capacity” to obtain video footage of the accident. The Westbrooks provided Larson and the Torrance police officers with the video. The Nest camera manufacturer told plaintiff that the Westbrooks could only download and email all of the videos to the Torrance PD. When Barton explained this to the Westbrooks, the Westbrooks stopped responding. The Westbrooks informed Barton that they knew Larson personally and that he lived in the neighborhood. “This is a major conflict of interest and further prejudices” plaintiff. When Barton was inquiring of another neighbor, a duplicate type of accident nearly happened in same scenario as the plaintiff-defendant accident.

Plaintiff alleges, “[i]n conclusion, because of the multitude of evidence of the dangerous intersection, the prejudicial treatment of [defendant] by defendants, who were acting in the scope of their ‘official capacities,’ and “emolument violations” are responsible and the proximate cause of injury in all occurrences that caused plaintiff injury, harm, and loss.

The court notes that plaintiff improperly designated his causes of action as “counts.”

Uncertainty

The court finds that the allegations are uncertain. Although plaintiff cites to “Exhibits E and F” he fails to attach them. He does not allege how the police reports were incomplete or how he was caused injury, harm, or prejudice. As to a purported dangerous condition, plaintiff does not allege the defect or any of the elements, as stated below.

1st cause of action for 42 USC 1983

42 U.S.C. section 1983 provides: “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 . . . .”

Plaintiff alleges that City of Torrance violated his due process rights by withholding police report.

Under Monell, a municipality defendant cannot be liable for vicarious tortious acts of its employees brought under ;1983, unless the municipality “implements or executes a policy . . . regulation or decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of Social Services of New York (1978) 436 U.S. 658, 694. Further, the public entity will only be liable if the plaintiff has shown a constitutional violation that was caused by an express policy that is “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law. Id. at 691.

Plaintiff has not alleged facts to show a constitutional violation and the identification of an official custom, practice, or policy of Torrance defendants that cause a constitutional violation. Plaintiff also fails to allege how any conduct by defendants injured him.

2nd cause of action for 42 USC 1983

Plaintiff alleges that City of Torrance withheld “exculpatory evidence” and did not release all the videos from the Westbrook’s six cameras facing Torrance Blvd.

Plaintiff has not alleged facts to show a constitutional violation and the identification of an official custom, practice, or policy of Torrance defendants that cause a constitutional violation. Plaintiff also fails to allege how any conduct by defendants injured him.

3rd cause of action for 42 USC 1983

Plaintiff alleges that Furey suppressed plaintiff’s due process rights by withholding police report.

This “cause of action” is unintelligible as plaintiff alleges that Furey is the mayor and does not allege that he had possession of the police report or the authority to withhold or release it. Plaintiff has not alleged facts to show a constitutional violation and the identification of an official custom, practice, or policy of Torrance defendants that cause a constitutional violation. Plaintiff also fails to allege how any conduct by defendant Furey injured him.

4th cause of action for “tort”

Plaintiff alleges that Furey acted “in breach of duty and contributory negligence by failing to oversee subordinates and act in his role as mayor because proper procedures were not implemented and were also ignored.”

“Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employee or any other person.” Gov. Code ; 815. There is no governmental tort liability for common law negligence.

Plaintiff fails to allege violation of any statute and with particularity. He does not identify any subordinates or procedures and that were “not implemented” or “ignored.” Further, plaintiff confusingly refers to “contributory negligence,” which is an affirmative defense.

Also, this claim appears to be barred by a qualified immunity under Gov. Code ;820.2, which states, “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” “Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The right the official is alleged to have violated must have been ‘clearly established’ in an appropriately particularized sense. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Calabretta v. Floyd (9th Cir. 1999) l89 F.3d 808.

5th cause of action for 42 USC 1983

Plaintiff alleges that Berg suppressed plaintiff’s due process rights by withholding police report.

The allegations are insufficient. Plaintiff has not alleged injury. He also contradictorily alleges that he was given the police report, albeit it was purportedly “incomplete” although he does not explain how.

6th cause of action for 42 USC 1983

Plaintiff alleges that Berg and City of Torrance were denied procedural due process by withholding “exculpatory evidence” and did not release all the videos from the Westbrook’s six cameras facing Torrance Blvd.

See under 1st “cause of action.” The allegations are insufficient.

7th cause of action for “tort”

Plaintiff alleges that Bilizerian acted in breach of duty and contributory negligence by failing to oversee subordinates and act in his role as Director of Public Works because proper procedures were not implemented concerning the continual, repetitive dangers and hazards of Torrance Blvd., Wood, and Palos Verdes Blvd. intersection.

Plaintiff has failed to allege a statutory basis. Further, plaintiff has not pled with particularity. Further, plaintiff confusingly refers to “contributory negligence,” which is an affirmative defense. Further, this claim appears barred by a governmental immunity under Gov. Code ;820.2.

If plaintiff is attempting to allege dangerous condition of public property, the allegations are insufficient.

Gov. ; 835 states: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Plaintiff fails to allege any purported defect at the intersection, with particularity.

8th cause of action for “common law tort”

Plaintiff alleges that City of Torrance, Fury, Berg, and Bilizerian were negligent concerning the protection and procedural due process of plaintiff.

Plaintiff fails to allege a statutory basis and with particularity. Plaintiff fails to allege defendants’ conduct and how and in what manner his due process rights were harmed.

9th cause of action for “tort” – vicarious liability

Plaintiff alleges that City of Torrance, Fury, Berg, and Bilizerian failed to act in the scope of duty and employment in protecting plaintiff from suffering injury, harm, and loss.

Plaintiff fails to allege a statutory basis and with particularity. See also under the 1st cause of action under Monell.

10th cause of action for “tort”

Plaintiff alleges that City of Torrance acted in breach of duty and contributory negligence “by failing to oversee subordinates and act in his role as Mayor because proper procedures were not implemented and were also ignored” concerning plaintiff’s protected rights.

This “cause of action” is unintelligible. The City of Torrance did not act in the role as “mayor.” Further, plaintiff fails to allege a statutory basis and with particularity. Also, plaintiff confusingly refers to “contributory negligence,” which is an affirmative defense.

11th cause of action for “tort”

Plaintiff alleges that Berg acted in breach of duty and contributory negligence “by failing to oversee subordinates and act in his role as Mayor because proper procedures were not implemented and were also ignored” concerning plaintiff’s protected rights.

This “cause of action” is unintelligible. Berg did not act in the role as “mayor.” Further, plaintiff fails to allege a statutory basis and with particularity. Also, plaintiff confusingly refers to “contributory negligence,” which is an affirmative defense.

12th cause of action for “tort” – “duty in negligence”

Plaintiff alleges that defendants acted in breach of duty and are negligent because of “the evidence of advanced notice of the assumption of risk concerning the intersection at issue in which plaintiff suffered physical injury and economic harm.”

This “cause of action” is unintelligible. Plaintiff fails to allege defendants’ conduct and how and in what manner he was harmed. If plaintiff is attempting to allege dangerous condition of public property, the allegations are insufficient.

Gov. Claims Act

Under the Torts Claims Act, as described in Government Code ;911.2(a), a mandatory six-month statute of limitations from the accrual of the cause of action applies to all claims relating to a cause of action for death or for injury to a person.”

Before a suit for damages may be filed against a public entity, a claimant must present a timely written claim to the public entity and the claim must have been acted upon by the board or deemed rejected. Gov. Code ;945.4; Munoz v. State of Cal. (1995) 33 Cal. App. 4th 1767, 1777. A claim relating to a cause of action for injury to person or personal property must be presented to the public entity not later than six months after the accrual of the cause of action. Gov. Code ;911.2. Munoz, supra, 33 Cal. App. 4th at 1777.

If a claimant fails to present a claim within the statutory period, he may apply “within a reasonable time not to exceed one year after the accrual of the cause of action” to the public entity for leave to present a late claim. Gov. Code ;911.4. If the public entity denies leave to present a late claim, a claimant may petition the Court under Gov. Code ;946.6 for relief from the requirements of Government Code ;945.4. Munoz, supra, 33 Cal. App. 4th at 1777.

Additionally, a petition pursuant to Government Code ;946.6 must be “filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.” Gov. Code ;946.6(b). This requirement is mandatory. Lineaweaver v. S. Cal. Rapid Transit Dist. (1983) 139 Cal. App. 3d 738, 741.

Plaintiff fails to allege that he filed a timely claim or leave to present a late claim or a claim for relief from the claim presentation requirement.

Statute of limitations

Defendants argue that the FAC does not relate back to the filing of the complaint and thus barred by the two-year statute of limitations because the complaint did not allege any facts with respect to the police report or videos or purported dangerous condition of property.

The court notes that the original complaint asserted claims under 42 USC 1983 and that the court allowed plaintiff to amend.

The statute of limitations does not appear to bar the FAC on its face.

The demurrer is SUSTAINED WITH LEAVE TO AMEND as to the FAC.

Defendants are ordered to give notice of the ruling.



Case Number: *******8796    Hearing Date: January 12, 2021    Dept: 28

Demurrer to Complaint

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On October 9, 2020, Plaintiff Todd Barton filed a complaint against Defendants Patrick J. Furey, Craig Billezerian, and Eve Berg (collectively “Defendants”) for (1) motor vehicle negligence, (2) negligence, (3) intentional tort – Title 42 USC 1983, (4) Intentional Tort – Title 18 USC 242, (5) Intentional Tort – Title 18 USC 241.

On November 30, 2020, Defendants filed a demurrer to complaint.  No opposition has been filed.

Trial is set for April 8, 2022.

PARTYS REQUEST

Defendant request an order sustaining the demurrer on grounds that the complaint fails to allege sufficient facts to state a valid cause of action against them and is unclear, ambiguous and uncertain.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.  (See Code of Civ. Proc. ; 430.41.)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at p. 747.)

DISCUSSION

Meet and Confer

Defense counsel declares she sent a meet and confer letter to Plaintiff on October 20, 2020 and spoke by telephone to Plaintiff on October 30, 2020.  (Litvin Decl., ¶¶ 3-4.)  Plaintiff informed defense counsel that he planned to amend his complaint and granted an extension for Defendants to respond to his original complaint.  (Id., ¶ 4.)  On November 13, 2020, defense counsel emailed Plaintiff inquiring about the status of his plans to file an amended complaint.  (Id., ¶ 5.)  On November 23, 2020, defense counsel emailed Plaintiff informing him he had not received an amended complaint and would be proceeding with the filing of a demurrer.  (Id., ¶ 6.)  On November 25, 2020, defense counsel received two emails from Plaintiff and responded to him regarding his request for a further time extension, explaining Defendants would be filing a timely demurrer by the November 30, 2020 deadline.  (Id., ¶ 7.)

Demurrer

Failure to Allege Sufficient Facts

Defendants argue Plaintiff’s claims fail because Plaintiff has failed to allege any conduct or involvement by Defendants. A review of complaint demonstrates that each of the causes of action is premised on a motor vehicle accident that occurred between Plaintiff and Garrett Joseph Carson.  (Complaint, ¶¶ 10-12, 14-25, 26-27, 33-34, 41-42, 48-49.) There are no factual allegations demonstrating Defendants’ misconduct or involvement in the motor vehicle accident.  Plaintiff has thus failed to sufficiently plead each of the causes of action against Defendants.

Accordingly, the demurrer to complaint is sustained with leave to amend.

Government Claims Act

Defendants also argue the entire complaint fails because Plaintiff failed to comply with the Tort Claims Act.

“[N]o 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 . . . 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 . . . .”  (Gov. Code, ; 945.4.) A failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.  (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738.) A complaint is subject to attack by demurrer if the plaintiff fails to include allegations that the plaintiff complied with the claims presentation requirement or that a recognized exception or excuse for noncompliance exists. (See Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 338.)

Here, Plaintiff alleges that he is excused from complying with the Tort Claims Act because “the person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time.”  (Complaint, p. 2, ¶ 9b.)  Plaintiff has thus alleged an excuse for noncompliance.

Defendants argue that while incapacity excuses a claimant from the time requirements for filing a claim, it does not excuse a claimant from the requirements entirely.  However, Defendants fail to provide legal authority to support that contention.  To this extent, Plaintiff’s allegation that he was excused from complying due to disability must be taken as true for the purposes of this demurrer.  The demurrer thus cannot be sustained on this ground.

CONCLUSION

Based on the foregoing, Defendants Patrick J. Furey, Craig Bilezerian, and Eve Berg’s demurrer to complaint is sustained with 20 days leave to amend.

Moving Defendants are ordered to give notice of this ruling.



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where CITY OF TORRANCE is a litigant

Latest cases represented by Lawyer THOMPSON-BELL DELLA D.