I Vincent P. Hurley· #111215 Ryan M. Thompson #292281

2 LAW' OFFICES OF \'INCENT P. HURLEY A Professional Cotporation

3 28 Seascape Village Aptos, California 95003

4 Telephone: (831) 661-4800 Facsimile: (831) 661-4804

5 Attorneys for Defendants

FILED SEP 2 8 2015

TERESA A. RISI f LEAK OF THE SUPERIOR COURT • CUMMlNG..' DEPUTY

6 CITY OF CAR..l\ffiL-BY-THE-SEA and LUKE E. POWELL

7

8

9

10

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MONTEREY

) 11 JENNIFER DA SILVA, )

) 12 Plaintiff, )

) 13 vs. )

) 14 CITY OF CARMEL-BY-THE-SEA; )

LUKE E. POWELL, individually and in ) 15 his official capac1ty as a Police Officer )

for the CITY OF CARMEL-BY-THE- ) 16 SEA; COUNTY OF MONTEREY; )

MONTEREY COUNTY SHERIFF'S ) 17 OFFICE, and DOES 1 through 50, )

inclusive, ) 18 )

Defendants. ) 19

20

Case No. M132929

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS CITY OF CARMEL-BY-THE-SEA AND SERGEANT LVKE E. POWELL TO COMPLAINT OF PLAINTIFF JENNIFER DA SILVA

Date: October 30, 2015 Time: 9:00 a.m. Dept. : 14

Date action flied: August 7, 2015

21 Defendants CITY OF CARMEL-BY-THE-SEA and SERGEANT LUKE E. POWELL

22 submit this memorandum in support of their demurrer to the Complaint for damages filed by

23 Plaintiff JENNIFER DASILVA on August 7, 2015.

~ L

25 ~TATEMENT _QF FACTS AND PROCEDUR~

26 Plaintiff alleges that on August 7, 2013, she incurred damages for injuries she sustained

27 as a result of City of Carmel-By-The-Sea Police Department Sergeant Luke Powell's alleged

28

P&.\ ISO Cit) of(;armel and ~gl Powell's Demurrer Case No. M 132929

1 unlawful seizure and use of excessive force. Defendants' Request for Judicial Notice No.1

2 ("RJN"), Exhibit A (hereafter "Exh. A", Compl.") p. 10,, 39.

3 On March 19, 2014, approximately seven months after the alleged incident, Plaintiff filed

4 a government claim \\ith the City of Carmel-by-the-Sea. Exh. A, Compl. p. 8, ~ 33. The claim

5 was not presented within the time prescribed by Cal. Gov' t Code section 911.2. Exh. A, Compl.

6 p. 8, ~ 33. After demals by the City of Carmel-by-the-Sea of both Plaintiff'<.> government claim

7 and Plamtiffs subsequent Application for Leaye to File Late Claun, Plaintiff filed a Petition for

8 Order Relieving Petitioner from Provisions of Cal. Gov't Code section 945.4 (''Petition'') in

9 Monterey County Superior Court. Exh. A, Compl. p. 9, ~ 34 On November 19, 2014, the Hon.

10 Robert O'Farrell issued an Order granting the Petition. Exh. A., Compl. p. 9, ~ 35; RJN No.2,

11 Exhibit B (hereafter "E.\.h. B").

12 On :May 5, 2015, Plaintiff submitted a "Substitution of Attorney" form to the Court,

13 changing from her former attorney, Stephen F. Wagner, to her current attorney, Andrew B.

14 Kreeft. RJN No.4, Exhibit D.

15 On August 7, 2015, Plaintiff filed a Complaint against City of Carmel-by-the-Sea and

16 Sergeant Powell, among other defendants, alleging both state and federal causes of action.

17 Exh. A., Compl. p. 9, ~~ 36-45 (First Cause of ActiOn for Violation of Civil Rights under 42

18 U.S.C. section 1983); Compl. p. 11 ~~46-52 (Second Cause of Action for False Imprisonment);

19 Compl. p. 12, ~~53-59 (Third Cause of Action for Battery); Compl. p. 13, ~~60-68 (Fourth

20 Cause of Action for Intentional Infliction of Emotional Distress); Compl. p. 18, ~, 88-92

21 (Seventh Cause of Action for Neghgence).

22 It should be noted that since November 19,2014, the date Hon. Robert O'Farrell issued

23 the Order granting Plaintiffs Petition, Plaintiff has changed her name from "Jennifer Little" to

24 "Jennifer DaSilva." Perhaps as a result of Plaintiffs name change, there has been a change in

25 the case number pertaining to Plaintiffs case. While Plaintiff was known as "Jennifer Little,"

26 the corresponding case number pertaining to the underl)ing incident was "Ml29420.'' Plaintiffs

27 Complaint. wherein she is named as "Jennifer DaSilva," is designated case number "M132929."

28 2

P&A ISO City of Carmel and ~gt. Po\\ ell's Demurrer Ca~e llio. M 112929

I

2

3 A.

II.

LEGAL ARGUMENT

Standard of Review.

4 \\'hen any ground for objection to the complaint appears on the face of the pleading, or

5 from any matter of which the court may take judicial notice of, the objection on that ground may

6 be taken by a demurrer to the pleading. Cal. Code Civ. Proc. § 430.30(a). Indeed, where the

7 dates alleged in the complaint show the action is barred by the applicable statute of limitations, a

8 demurrer on that ground is proper. Vaca v. Wachovia Mortg. Corp., 198 Cal. App. 4th 737, 746

9 (2011).

10 In reviewing the sufficiency of the complaint against a demurrer, the Court will take all

11 facts as true and look only at the face of the pleading. The Court will treat the demurrer as

12 admitting all material facts properly pleaded, but not contentions, deductions or conclusions of

13 fact or law. Blank v. Kerwin, 39 Cal. 3d 311 , 318 (1985). In ruling on a demurrer, doubt in the

14 complaint may be resolved against plaintiff, and facts not alleged are pre•mmed not to exist.

15 Kramer v. Intuit, Inc., 121 Cal. App. 4th 574, 578 (2004). The burden of proof to show that

16 there is any reasonable possibility that a pleading defect can be cured by amendment is squarely

17 on the plaintiff, and if there is no liability as a matter of law, leave to amend should not be

18 granted. Hendy v. Losse, 54 Cal.3d 723,742 (1991); Goodman v. Kennedy, 18 Cal.3d 335

19 (1976).

20 B. Plaintifrs State Law Causes of Action are Time-Barred Under California

21 GoYernment Code section 946.6(0.

22 Cal. Gov' t Code section 946.6(f) states "(i]fthe court makes an order relieving the

23 petitioner from Section 945.4. suit on the cause of action to which the claim relates shall be filed

24 with the court within 30 days thereafter." RJN No.3, Exhibit C. The 30-day time period set

25 forth in Cal. Gov' t Code section 946.6(f) commences when the court "makes an order" granting

26 relief from the claims presentation requirement. Mandjik l'. Eden Township Hospital Dist. , 4

27 Cal. App. 4th 1488, 1496, 1497 (1992). "\Vhile the procedure for granting relief from the claims

:28 3

P&A 1~0 City o f Carmel and ~gt. PoweH s Demurrer Ca<re No. M\32929

1 statutes is remedial in nature and must be liberally construed in favor of the claimant, such

2 liberality does not extend to the statute of limitations," which is "mandatory and must be strictly

3 complied with." ld at 1498 (citing Rivera v. CityofCarson, 117 Cal.App.3d 718,726 (1981).

4 Here, on November 19, 2014, Judge Robert O'Farrell issued an Order granting Plaintiff8

5 Petition for Order Relieving Petitioner from Provisions of Gov't Code section 945.4. Exh. A,

6 Compl. p. 9, ~ 35; Exh. B. Thus, under Cal. Gov't Code section 946.6(f), Plaintiff had until

7 December 19, 2014 (30 days from the date of Judge O'Farrell's granting of the Petition) to file

8 suit. Plaintiff filed her Complaint on August 7, 2015, ~ell after the statutory deadline to do so.

9 Accordingly, Plaintiffs state law causes of action, specifically Plaintiffs Second Cause

10 of Action for False Imprisonment, Third Cause of Action for Battery, Fourth Cause of Action for

11 Intentional Infliction ofEmotional Distress, and Seventh Cause of Action for Negligence, are

12 time-barred.

13 c. The California Tort Claims Act Applies to both Public Entities and Public

14 Employees.

15 The provisions of the California Tort Claims Act applies to both public entities and those

16 public employees acting within the scope of his/her employment as a public employee. See Via

17 v. City of Fairfield, 833 F .Supp.2d 1189, 1196, 1197 (2011 ); Cal. Gov't Code § 950.2. Here,

18 Sergeant Powell was acting in the scope of his employment as a police sergeant ~ith the City of

19 Carmel-By-The-Sea Police Department when the underlying incident occurred. Thus, Plaintiff's

20 state law causes of action are barred as to both the City of Carmel-By-The-Sea and Sergeant

21 Luke E. Powell. See Via, 833 F .Supp.2d at 1196, 1197; Cal. Gov't Code § 950.2.

22 III.

23 CQNCLU~Q~

24 For the reasons set forth abo\·e, Defendants City of Carmel-by-the-Sea andSergeant

25 Luke E. Powell respectfully request the Court sustam Defendants' demurrer to Plaintiff's

26 Complaint \\oithout leave to amend as to the Second Cause of Action for False Imprisonment, the

27

28 4

P&A ISO Cit) of Cannel and Sgt. Powell"s Demurrer Case No. M 132929

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Third Cause of Action for Battery, the Fourth Cause of Action for Intentional Infliction of

Emotional Distress, and the Seventh Cause of Action for Negligence.

Dated: September ~{ 2015

P&.\ t~O City of (;annel and Sgt. Powell's Demurrer

LAW OFFICES OF VINCENT P . HURLEY A Professional Corporation

By: ~ TL-. RYANM. THOMPSON

Attornevs for Defendants CITY OF · CARMEL-BY -THE-SEA and LUKE E. PO\VELL

5 Cast:. No. M 132929