Ozburn v. City of Firebaugh

Horvath (1976) 16 Cal.3d 834, 838; see also Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) “[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’, and to state a cause of action every fact essential to 15

the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. Duty cannot be alleged simply by stating ‘defendant had a duty under the law’; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Searcy v.

Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802, citations omitted.) “In view of the fact that tort causes of action against public entities are now based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Every fact essential to the existence of statutory liability must be pleaded.” (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809, citations omitted.) Where the plaintiff fails to allege facts sufficient to show the existence of statutory liability, the court should sustain a demurrer to the complaint for failure to state a claim. (Id. at p. 811.)

Here, plaintiff has attempted to allege fourteen separate causes of action against defendants City of Firebaugh, former Chief of Police Raygoza, and former Sergeant Ortiz based on an incident where she was allegedly unlawfully evicted from her home by her landlord with the help of Sergeant Ortiz. (FAC, ¶¶ 4-6.) She claims that defendants violated her property and personal rights by illegally assisting with the eviction without proper legal authority. (Ibid.) She alleges that Sergeant Ortiz used threats and coercion against her when he forced her to leave the property. (Ibid.)

Plaintiff also alleges that Chief Raygoza conducted a biased investigation into the incident after she made a complaint to him about Sergeant Ortiz’s conduct, and Chief Raygoza wrongly concluded that Ortiz did nothing wrong. (Id. at ¶¶ 7-8.) First Cause of Action: Plaintiff’s first cause of action for “Willful Intent” cites to Civil Code sections 3294, which authorizes punitive damages, and 52.1, and 52.1(h), the Bane Act, as well as Penal Code sections 7(1) and 21(a). (FAC, ¶ 111.) There is no recognized cause of action for “Willful Intent.”

However, it appears that plaintiff is attempting to state a claim under the Bane Act. Under Civil Code section 52.1,“If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured.” (Civ.

Code, § 52.1, subd. (b).)

In addition, “[a]ny individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (b), may institute and prosecute in their own name and on their own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured, including appropriate equitable and

declaratory relief to eliminate a pattern or practice of conduct as described in subdivision (b).” (Civ. Code, § 52.1, subd. (c).) Also, under section 52.1, subdivision (n), “The state immunity provisions provided in Sections 821.6, 844.6, and 845.6 of the Government Code shall not apply to any cause of action brought against any peace officer or custodial officer, as those terms are defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, or directly against a public entity that employs a peace officer or custodial officer, under this section.” (Civ.

Code, § 52.1, subd. (n).) Thus, plaintiff has alleged a sufficient statutory basis for her first cause of action that would permit her to sue the City and its officers for violating her civil rights, as the Bane Act contains provisions that expressly provide an exception to sovereign immunity. She has also alleged enough facts to support her Bane Act claim, as she alleges that defendant Sergeant Ortiz, while acting under color of law, threatened and coerced her into leaving her home and allowed her landlord and others to enter her home and tamper with her personal property. (FAC, ¶¶ 111-113.)

She also alleges that defendants failed to investigate the conduct of Sergeant Ortiz in an unbiased manner and failed to take corrective or disciplinary action against him. (Id. at ¶ 112.) As a result, the court intends to find that plaintiff has adequately alleged a claim under the Bane Act, and it will overrule the demurrer to the first cause of action. Second Cause of Action: On the other hand, the court will sustain the demurrer to the second cause of action for unjust enrichment. “An individual is required to make restitution if he or she is unjustly enriched at the expense of another.

A person is enriched if the person receives a benefit at another's expense. Benefit means any type of advantage.” (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662, citations omitted.) Here, plaintiff fails to allege any statutory exception to sovereign immunity or facts showing that the statute applies to her claim. While she briefly cites to the Bane Act and the United States Civil Rights Act, 42 U.S.C. §§ 1981-1988 (FAC, ¶ 119), to the extent that she is alleging a violation of her civil rights, the first cause of action already alleges a claim for civil rights violations, so the second cause of action is redundant of the first cause of action.

To the extent plaintiff is trying to allege a claim for unjust enrichment, she has not alleged any facts showing that defendants were unjustly enriched due to their allegedly wrongful conduct during the eviction and subsequent investigation of the incident. At most, she has alleged that she was harmed by defendant’s violation of her rights, not that defendants received an unjust benefit at her expense. Nor has she explained in her opposition how she could allege any other facts that would support an unjust enrichment claim.

In fact, the complaint’s allegations seem to show that defendants did not receive any money, property, or other benefit at plaintiff’s expense that would support an unjust enrichment claim. Therefore, the court intends to sustain the demurrer to the second cause of action, without leave to amend. Third Cause of Action: The third cause of action for “Punitive and Non-Economic Damages” also fails to state a claim. There is no recognized cause of action for punitive and non-economic damages. Punitive and non-economic damages are remedies, not causes of action. “Punitive damages are merely incident to a cause of action, and can

never constitute the basis thereof.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193, citations omitted.) In addition, even if “punitive or non-economic damages” were a valid cause of action, plaintiff has not alleged any statutory basis that would allow her to seek punitive damages against the public entity defendants, or any facts to support her cause of action. In fact, plaintiff cannot recover punitive damages against the City, as public entities are immune from claims for punitive damages. (Gov.

Code, § 818.) Therefore, the court intends to sustain the demurrer to the third cause of action, without leave to amend. Fourth Cause of Action: The fourth cause of action also fails to state facts sufficient to constitute a cause of action. Plaintiff attempts to state a claim for private nuisance under Civil Code section 3479, 3481, and 3501, which generally define the concept of “nuisance” and “private nuisance”, and allow for civil actions for a private nuisance. However, none of the cited statutes provides for public entity liability.

Thus, plaintiff has not shown that there is any statutory authority providing that she can sue defendants, or that the statute applies here. In addition, she has not alleged any facts showing that defendants created a private nuisance. The facts alleged in the complaint only show that defendants allegedly helped evict her in an improper manner, and then failed to adequately investigate the incident. Such facts do not show the existence of a nuisance, or that defendants created the nuisance. Therefore, the court intends to sustain the demurrer to the fourth cause of action for failure to state a cause of action.

Furthermore, plaintiff has not explained how she could amend the complaint to cure the defect, so the court will deny leave to amend the fourth cause of action. Fifth Cause of Action: The court also intends to sustain the demurrer to the fifth cause of action for “Omission of Material Fact.” Again, there is no recognized cause of action for “Omission of Material Fact.” Nor has plaintiff alleged any statute that would allow her to sue a public entity or employee for making alleged omissions in a police report.

To the extent that plaintiff seems to be alleging that defendant Ortiz violated her civil rights by failing to completely and accurately report the facts regarding the eviction, she has already alleged a civil rights claim in the first cause of action. The fifth cause of action is, at best, redundant of her earlier civil rights claim. Nor has plaintiff explained how she could allege any other facts to cure the defect in her cause of action. Therefore, the court will sustain the demurrer to the fifth cause of action, without leave to amend.

Sixth and Seventh Causes of Action: Next, the court intends to sustain the demurrer to the sixth cause of action for negligent infliction of emotional distress and the seventh cause of action for negligence. Negligence and negligent infliction of emotional distress are essentially the same tort, as negligent infliction of emotional distress is just negligence that causes emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) Thus, plaintiff’s sixth cause of action for negligent infliction of emotional distress is redundant of her seventh cause of action for negligence.

Furthermore, plaintiff has not alleged any statute that would allow her to sue the public entity and employee defendants for common law negligence or negligent infliction of emotional distress. Thus, plaintiff has not shown that there is an exception to the usual rule of sovereign immunity here, and she has not stated a claim for negligence

or negligent infliction of emotional distress. As a result, the court intends to sustain the demurrer to the sixth and seventh causes of action for failure to state a claim. However, the court will grant leave to amend, as it is possible that plaintiff might be able to allege a statutory basis for her negligence claim against the defendants. For example, plaintiff has cited to Government Code section 815.6 in her opposition, which provides liability for public employees who fail to discharge a mandatory duty imposed by law. (Gov.

Code, § 815.6.) The court will grant leave to amend to allow plaintiff to allege a statute that imposes liability on defendants here, as well as particular facts showing that the statute applies to the case. Eighth Cause of Action: The court intends to sustain the demurrer to the eighth cause of action for intentional misrepresentation. “The elements of fraud that will give rise to a tort action for deceit are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Engalla v.

Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, citation and internal quote marks omitted.) Plaintiff alleges that defendants misrepresented the facts of the incident in their reports, statements, and records, as well as making false statements in the investigation of the incident. (FAC, ¶¶ 146, 147.) Again, however, plaintiff has not alleged any statute that would allow her to sue defendants, who are subject to immunity as public entities and employees. Also, plaintiff has not alleged facts showing that she relied on defendant’s false statements, or any facts showing how she was damaged by her reliance.

Therefore, she has not stated a claim for intentional misrepresentation. Nor does it appear that she could allege any facts to cure the defect in her claim.

While plaintiff alleges that she relied on the reports and investigation findings, it is clear from the other allegations of her complaint that she never believed defendants’ version of the events and that she strongly disagreed with them. She also alleges no facts showing that she was harmed by her reliance on any statements in the reports or findings. Thus, she did not justifiably rely on defendants’ allegedly false statements, nor was she injured because of any such reliance. As a result, the court intends to sustain the demurrer to the eighth cause of action for failure to state facts sufficient to constitute a cause of action, without leave to amend.

Ninth Cause of Action: Next, the court intends to sustain the demurrer to the ninth cause of action for harassment. Plaintiff alleges that “Defendant” harassed her during the eviction process in violation of her civil rights under the California Constitution and Civil Code sections 52.1. (FAC, ¶¶ 151-153.) First, there is no recognized civil cause of action for “harassment.” However, plaintiff does cite to Civil Code sections 51.1 and 52.1(h), the Bane Act, which does provide a valid statutory basis for suing the public entity and public employee defendants.

Still, to the extent that plaintiff is seeking to bring a claim under the Bane Act, she has already alleged the same facts and harm in her first cause of action, which also seeks to bring a claim for civil rights violations under the Bane Act. Therefore, the ninth cause of action is redundant of the first cause of action, and the court intends to sustain the demurrer to it without leave to amend.

Tenth Cause of Action: The court will also sustain the demurrer to the tenth cause of action for “Falsifying Evidence.” Plaintiff alleges that defendant Ortiz made false statements in his police report and Chief Raygoza failed to correct the inaccurate report. (FAC, ¶ 157.) Again, there is no recognized cause of action for falsifying evidence in California law. Nor has plaintiff alleged any statute that would provide an exception to immunity and allow her to sue defendants under the circumstances.

She does cite to the Bane Act and 42 U.S.C. sections 1981-1988, but she does not allege any facts showing how she would be allowed to sue defendants for allegedly falsifying evidence under the Bane Act or the federal Civil Rights Act. In any event, her claim is redundant of the first cause of action to the extent she is trying to allege civil rights violations. Therefore, the court intends to sustain the demurrer to the tenth cause of action, without leave to amend. Eleventh Cause of Action: The court will also sustain the demurrer to the eleventh cause of action for “Concealment of Evidence.”

Plaintiff alleges that defendants concealed material evidence regarding the incident because Ortiz concealed facts and failed to correct known deficiencies in his police report. (FAC, ¶ 162.) She also alleges that Chief Raygoza failed to ensure that the report was complete and accurate, and failed to disclose internal findings that would have revealed misconduct by subordinates. (Id. at ¶ 162.) Once again, there is no recognized civil cause of action in California for concealment of evidence. Nor has plaintiff alleged any statute that would allow her to sue defendants, who are immune from non-statutory claims.

She also does not allege any facts showing that such a statute would apply here. As a result, the court intends to sustain the demurrer to the eleventh cause of action, without leave to amend. Twelfth Cause of Action: The court will also sustain the demurrer to the twelfth cause of action for “Coercion.” Again, there is no recognized cause of action for “Coercion” in California. While plaintiff cites to the Bane Act, she has already alleged a Bane Act claim in the first cause of action. The twelfth cause of action is therefore redundant and fails to state a valid cause of action.

The court intends to sustain the demurrer to the twelfth cause of action without leave to amend, as it does not appear that plaintiff can amend the complaint to state a valid cause of action for coercion. Thirteenth Cause of Action: Likewise, the thirteenth cause of action for “Biased Conduct” also fails to state a claim and therefore the court will sustain the demurrer to it. There is no recognized caused of action for “Coercion” in California. Plaintiff alleges the same facts that support her other causes of action. (FAC, ¶ 172.)

In effect, she is again alleging that defendants violated her civil rights in violation of the Bane Act and the California Constitution. However, she has already alleged a civil rights claim in the first cause of action, so the thirteenth cause of action for “Biased Conduct” is redundant and fails to state a valid cause of action. Nor does it appear that plaintiff can amend the complaint to state a valid cause of action. Therefore, the court intends to sustain the demurrer to the thirteenth cause of action, without leave to amend.

Fourteenth Cause of Action: Finally, the court intends to sustain the demurrer to the fourteenth cause of action for “Aiding and Abetting.” Again, there is no recognized California cause of action for aiding and abetting. Plaintiff simply repeats the same facts and conclusions that she recites in the other parts of her complaint. At most, her

allegations support a claim for civil rights violations under the Bane Act and the federal Civil Rights Act. Since she has already alleged a civil rights claim in her first cause of action, her “Aiding and Abetting” claim is redundant and the court intends to sustain the demurrer to it. Furthermore, plaintiff has not shown how she could amend the complaint to state a claim for aiding and abetting. Therefore, the court will sustain the demurrer without leave to amend.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 05/18/26. (Judge’s initials) (Date)

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