Demurrer to Plaintiff’s Third Amended Complaint
5/14/26 - Law and Motion Calendar Judge Mark A. McCannon – Department 2 Page 2 of 26
Case Title / Nature of Case
2:00 PM LINE: 1 21-CIV-05548 CHRIS TAGUNICAR VS. INA CHOU, ET AL
CHRIS TAGUNICAR PRO SE INA CHOU PRO SE
DEMURRER TO PLAINTIFF'S THIRD AMENDED COMPLAINT
TENTATIVE RULING:
For the reasons stated below, the Demurrer of Defendant David Norris (“Norris”) to Plaintiff Chris Tagunicar’s (“Plaintiff”) Third Amended Complaint (“TAC”) is SUSTAINED WITHOUT LEAVE TO AMEND.
ALLEGATIONS IN THE TAC AGAINST NORRIS
On March 21, 2019, Plaintiff advised Ina Chou (“Chou”), his landlord, of his intent to withhold further rent payments until his tenancy grievances could be addressed in court. (TAC, ¶ 9.) On March 25, 2019, Plaintiff went to the San Mateo Police station to file a formal complaint regarding police misconduct for unlawful and aggressive attempts to forcibly remove him from the property. (TAC, ¶ 10.) At the station, Plaintiff met with Sergeant Alex Rizatto (“Rizatto”), who strongly discouraged Plaintiff from filing a formal complaint. (Ibid.)
Rizatto allegedly repeatedly assured Plaintiff that the police department did not involve itself in landlord-tenant disputes and that the City recognized Plaintiff’s legal tenancy rights. (Ibid.) Norris reinforced these reassurances leading Plaintiff to rely on these statements and decline to proceed with the complaint. (TAC, ¶ 11.) Plaintiff alleges that this allowed Chou to escalate her misconduct, which resulted in Plaintiff’s unlawful arrest a month later. (Ibid.)
On April 23, 2019, Plaintiff found his belongings outside the property. (TAC, ¶ 12.) Plaintiff claims that the police, including Rizatto, unlawfully arrested Plaintiff and packed his belongings into Plaintiff’s vehicle and had it impounded. (TAC, ¶ 13.) Rizatto allegedly acted with malicious intent and reckless disregard for Plaintiff’s constitutional rights under the Fourth and Fourteenth Amendments, and unlawfully detained Plaintiff at Maguire Correctional Facility. (Ibid.) Upon his release, Plaintiff met Rizatto at the tow yard where his vehicle had been impounded. (TAC, ¶ 14.) Plaintiff claims Rizatto refused to provide information regarding his missing belongings and refused to correct or acknowledge his unlawful conduct. (Ibid.)
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Norris is alleged to be additionally liable under the doctrine of supervisory liability for failing to ensure that officers under his command adhered to constitutional and unlawful conduct. (TAC, ¶ 14; TAC, p. 14.) The TAC alleges that Norris was made aware of the circumstances surrounding the unlawful arrest, but he failed to intervene or take corrective action. (TAC, p. 33.) Norris allegedly permitted Plaintiff’s unlawful arrest and subsequent wrongful detention at Maguire Correctional Facility, and he failed to discipline or investigate the misconduct of Rizatto and other officers. (Ibid.) Plaintiff claims Norris violated his Fourth Amendment right against unlawful arrest and seizure and Fourteenth Amendment right to due process before being deprived of liberty or property. (TAC, pp. 33-34.)
Norris demurs to the Third and Ninth Causes of Action in the TAC based on failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)
5/14/26 - Law and Motion Calendar Judge Mark A. McCannon – Department 2 Page 3 of 26
THIRD CAUSE OF ACTION
The Demurrer to the Third Cause of Action for Violation of 42 U.S.C. Section 1983 is SUSTAINED WITHOUT LEAVE TO AMEND.
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....” (42 U.S.C. § 1983.)
The following elements must be alleged to state a cause of action under section 1983: (1) the plaintiff must allege some person has deprived him of a federal right, and (2) the plaintiff must allege the person depriving him of that right acted under color of state law. (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 890.)
The TAC therefore fails to allege facts to support that Norris deprived Plaintiff of a federal right. The TAC does not allege Norris was present when Plaintiff was arrested by Rizatto. Instead, Plaintiff seems to be alleging that Norris is liable for giving Plaintiff reassurances that the police department did not involve itself in landlord-tenant disputes. Such allegations do not support a constitutional violation under the Fourth and/or Fourteenth Amendments.
Plaintiff also alleges that Norris has supervisory liability for Rizatto’s and other officers’ conduct. To establish supervisory liability under section 1983, a plaintiff must prove: (1) the supervisor had actual or constructive knowledge of the officer’s wrongful conduct; (2) the supervisor’s response was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices; and (3) the existence of an affirmative causal link between the supervisor’s inaction and plaintiff’s injuries. (Squires v. City of Eureka (2014) 231 Cal.App.4th 577, 598, citing Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1279.)
The allegations are insufficient to support Norris’ liability as a supervisor. Plaintiff claims that Norris was made aware of the circumstances surrounding Plaintiff’s arrest, but Plaintiff has not alleged any facts as to how Norris was made aware of Rizatto’s or any other officer’s conduct. Even if Plaintiff could allege such facts though, there are no factual allegations to support that Norris’ response constituted deliberate indifference or tacit authorization of the claimed unlawful arrest. Plaintiff further has not alleged facts to support a causal link.
In response to a demurrer, a complaint shall not be amended more than three times, absent an offer to the court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. (Code Civ. Proc., § 430.41, subd. (e)(1).) The three-amendment limit does not include an amendment made without leave of the court before a demurrer to the original complaint is filed. (Ibid.)
Plaintiff already had three opportunities to amend his pleading. Plaintiff asks for leave to amend asserting he can plead specific facts to support this claim based on Norris’ December 29, 2020 written statement. Plaintiff attaches a copy of Norris’ written statement to his opposition. (Plaintiff’s Opposition, Exh. A.) This statement however, does not support Norris’ claimed supervisory liability under section 1983. Instead, Norris explains why the officers arrested Plaintiff. This statement does not show any knowledge by Norris of an unlawful arrest or deliberate indifference or tacit authorization by Norris of an unlawful arrest. Plaintiff thus has not shown there is a reasonable possibility he can cure the defect.
Based on the above, the court does not reach Norris’ remaining argument as to whether this claim is barred by qualified immunity or immunities.
5/14/26 - Law and Motion Calendar Judge Mark A. McCannon – Department 2 Page 4 of 26
NINTH CAUSE OF ACTION
The Demurrer to the Ninth Cause of Action for Intentional Infliction of Emotional Distress is SUSTAINED WITHOUT LEAVE TO AMEND.
Plaintiff has not alleged compliance with the Government Code’s claim presentation requirement. (See Gov. Code, §§ 810, 905, 910, 911.2, 945.4, 950.2, 950.6.) A complaint that fails to allege facts demonstrating timely presentation of a claim or that such presentation is excused is subject to a general demurrer based on failure to state facts sufficient to constitute a cause of action. (Willis v. City of Carlsbad (2020) 48 Cal. App. 5th 1104, 1119.) Plaintiff’s allegations support that Norris, a public employee, was acting at all times within the scope of his employment, and thus Plaintiff is required to allege compliance with the claim presentation requirement. (See Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750- 1751.)
While the court would otherwise be inclined to give Plaintiff leave to amend to allege compliance with the claim presentation requirement, Plaintiff also fails to allege facts sufficient to support this claim. “The elements of a prima facie case of intentional infliction of emotional distress consist of: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by the plaintiff; and (3) the plaintiff’s emotional distress is actually and proximately the result of defendant’s outrageous conduct.” (Conley v.
Roman Catholic Archbishop (2000) 85 Cal.App.4th 1126, 1133.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid.) Plaintiff’s allegations regarding Norris’ reassurances and alleged supervisor liability for the claimed unlawful arrest and seizure of property by Rizatto and other officers is insufficient to support extreme and outrageous conduct by Norris.
Plaintiff requests leave to amend claiming he can incorporate additional facts regarding Norris’ written statement, Norris’ official role as Support Services and Professional Standards Captain, the prior complaint history, the earlier unauthorized police entry into Plaintiff’s residence, and the direct causal relationship between Norris’ failure to act and Plaintiff’s emotional distress. (Plaintiff’s Opposition, p. 9:21-26.) Plaintiff does not explain how such facts would support extreme and outrageous conduct by Norris intended to or with reckless disregard to cause Plaintiff emotional distress. As such, Plaintiff has not shown a reasonable probability that he will be able to amend to sufficiently plead this claim after already having three opportunities to amend his complaint.
DISMISSAL
Since the Demurrer is sustained without leave to amend to all causes of action against Norris, Norris is DISMISSED from this action. Norris is to submit a proposed judgment of dismissal.
REQUEST FOR JUDICIAL NOTICE
Defendant Norris’ request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (d).)
If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, counsel for Defendant shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.