Opinion
B188015
12-15-2006
ROBERT NEMBHARD, Plaintiff and Appellant, v. LOS ANGELES COUNTY METROPOLITAN TRANSIT AUTHORITY, Defendant and Respondent.
Law Offices of Leo James Terrell and Leo James Terrell for Plaintiff and Appellant. Raymond G. Fortner, Jr., County Counsel, and Cassandra G. Langston, Principal Deputy County Counsel, for Defendant and Respondent.
Plaintiff Robert Nembhard appeals from the judgment in favor of defendant Los Angeles County Metropolitan Transit Authority (MTA) after the trial court sustained MTAs demurrer to plaintiffs first amended complaint without leave to amend. Plaintiff argues the trial court erred in sustaining the demurrer, and in any event, plaintiff should have been given a second opportunity to amend the complaint. We affirm the judgment, holding that the demurrer was properly sustained and plaintiff declined the opportunity to amend.
PROCEDURAL HISTORY
MTAs demurrer to plaintiffs original complaint was sustained, with leave to amend. Plaintiff filed a first amended complaint alleging causes of action against defendants MTA and the County of Los Angeles for violation of the 4th and 14th Amendments, false imprisonment, intentional infliction of emotional distress, and negligence. The trial court ruled plaintiff had failed to allege sufficient facts in all four causes of action, plaintiffs sole remedy was under the California Workers Compensation Act, and MTA was immune from liability under the Government Code.
The County of Los Angeles is not a party to this appeal.
ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
The first amended complaint was based on the following allegations. On or about September 21, 2004, plaintiff was suspended from his employment with MTA due to a physical confrontation with another employee. A formal hearing on the suspension was scheduled for September 30, 2004. Before the suspension hearing, a third party, who was not related to the September 21 incident and was not a witness to it, told an MTA manager that plaintiff had threatened to kill a witness (Al Cote) to the September 21 incident.
This threat was wholly unsubstantiated. Without verifying the threat, agents and employees of MTA reported plaintiffs threat to the Los Angeles County Sheriffs Department. Plaintiff was arrested by the Los Angeles County Sheriffs Department as he approached the formal hearing on September 30. The arrest was for making a criminal threat against Cote. Plaintiff was never charged with or convicted of this offense.
Defendants had an actual and honest belief in plaintiffs innocence of the crime. Defendants ulterior motive was to permanently deprive plaintiff of his freedom and liberty as a United States citizen. MTA acted with malice and deliberate indifference, and a conscious disregard for plaintiffs constitutional rights. Defendants engaged in a scheme and a conspiracy to commit the alleged acts and a conspiracy to conceal and obstruct the true facts of the incident.
DISCUSSION
I
THE TRIAL COURT PROPERLY SUSTAINED THE DEMURRER
Plaintiff argues the trial court erred in sustaining MTAs demurrer to the first amended complaint. We will address each of the four causes of action separately.
Standard of Review
In determining whether plaintiff stated a claim for relief, we treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff is entitled to a reasonable interpretation of the complaint, read as a whole and in context. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126; Friedman v. Southern Cal. Permanente Medical Group (2002) 102 Cal.App.4th 39, 43.) If the demurrer is sustained by the trial court, our task on appeal is to determine whether the complaint states facts sufficient to constitute a cause of action. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126; Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) When the trial court sustains a demurrer without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment. If the plaintiff sustains its burden of establishing a reasonable possibility of curing the defect, it is an abuse of discretion to deny leave to amend. (Ibid.; Friedman v. Southern Cal. Permanente Medical Group, supra, 102 Cal.App.4th at p. 43.)
A. First Cause of Action—Violation of the 4th and 14th Amendments
Plaintiff argues that he did allege facts sufficient to support a cause of action for violation of the 4th and 14th Amendments. He contends that MTA, a governmental agency, participated in an unlawful arrest, detention, and the use of force against plaintiff.
Plaintiffs briefs on appeal do not address the legality of his arrest, but instead focus only on the issue of whether MTA may be held liable for violations of the 4th and 14th Amendments because MTA acted under the color of authority of state within the meaning of title 42 of the United States Code section 1983. Plaintiffs briefs do not set forth his theory of how MTA violated the 4th and 14th Amendments, nor do the briefs discuss pertinent case authority establishing the alleged violation. Under these circumstances, we are entitled to summarily reject the contention and deem it forfeited. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 956; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.)
The Supreme Court has held that a public entity, such as MTA, may only be held liable under this section for a constitutional violation caused by a policy, custom, or practice of the public entity. "We conclude, therefore, that a local government may not be sued under [section] 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a governments policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under [section] 1983." (Monell v. Department of Social Services (1978) 436 U.S. 658, 694.) Plaintiffs pleading fails to allege the requisite policy, custom, or practice on the part of MTA to violate the 4th and 14th Amendments. The demurrer was properly sustained based upon this defect in the complaint.
Quite apart from the lack of briefing and the insufficient pleading under title 42 of the United States Code section 1983, plaintiff failed to allege a cause of action for violation of the 4th and 14th Amendments. According to the allegations of the first amended complaint, a person who was not involved in the altercation leading to plaintiffs suspension reported that plaintiff threatened to kill a witness to the altercation. The source of the information was a presumptively reliable citizen informant. (See People v. Ramey (1976) 16 Cal.3d 263, 269 ["It may therefore be stated as a general proposition that private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable."].) The report of plaintiffs threat established probable cause to arrest plaintiff for intimidation of a witness, in violation of Penal Code section 136.1, and making a criminal threat, in violation of Penal Code section 422. A peace officer may make a warrantless arrest when there is probable cause to believe the person arrested committed a felony. (Pen. Code, § 836, subd. (a)(3).)
MTA had the right to notify the Los Angeles County Sheriffs Department of the threat, without liability, because "any person has a right or privilege to make a complaint or furnish information to police officers (for arrest without warrant) or to a magistrate (for issuance of a warrant), and is not liable for false arrest or imprisonment if an arrest is made on a mistaken identification or insufficient grounds." (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 448.) "As indicated above, the courts have refused to allow recovery for false arrest or malicious prosecution where a citizen who reports information to the police makes an honest mistake. [Citation.] This limitation upon recovery by persons wrongfully accused of crimes is made necessary by the public interest in encouraging citizens possessing information about crime to aid in law enforcement. [Citations.]" (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 881.)
Plaintiff alleged that defendants had an actual and honest belief in plaintiffs innocence, and defendants conspired to commit the alleged acts. Generally speaking, these allegations were mere conclusions not entitled to any weight at the demurrer stage. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126; Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824; Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 429.) More specifically, because this was a tort action against a government entity, plaintiff was required to plead with particularity, a task which he failed to meet. As our Supreme Court has held, "[h]owever, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, `to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity. [Citations.]" (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795; see Hood v. Hacienda La Puente Unified School Dist. (1998) 65 Cal.App.4th 435, 439.) Applying the general rule that conclusions in pleadings are entitled to no weight, and the specific rule requiring pleading with particularity in tort actions against a governmental entity, the conclusion is inescapable that the demurrer was properly sustained.
These principles—that conclusions are entitled to no weight at the demurrer stage and tort actions against the government must be plead with particularity—apply with equal weight to each of plaintiffs causes of action discussed in this opinion.
B. Second Cause of Action—False Imprisonment
Plaintiffs second cause of action was for false imprisonment. Other than a general argument that the demurrer was improperly sustained to this cause of action, plaintiff cites no specific authority and does not discuss or develop his theory of false imprisonment. We consider the issue forfeited. (Century Surety Co. v. Polisso, supra, 139 Cal.App.4th at p. 956; Paulus v. Bob Lynch Ford, Inc., supra, 139 Cal.App.4th at p. 685; Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979; In re Marriage of Schroeder, supra, 192 Cal.App.3d at p. 1164.)
In any event, the trial court properly sustained the demurrer to the cause of action alleging false imprisonment. The tort of false imprisonment is defined as the unlawful violation of the liberty of another. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 757; Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) Liability for false imprisonment attaches only if confinement is without lawful privilege. (Asgari v. City of Los Angeles, supra, 15 Cal.4th at p. 757.) For the identical reasons stated above in rejecting plaintiffs claim for violation of the 4th and 14th Amendments, we also conclude the demurrer was properly sustained as to the false imprisonment cause of action. Plaintiff was arrested with probable cause, based upon the report of his threat to kill the witness. In other words, the confinement plaintiff suffered was lawful.
Moreover, MTA did not arrest plaintiff and did nothing more than provide the Los Angeles County Sheriffs Department with the information given to it by the third party. When a citizen merely conveys information to a peace officer, and it is the peace officer who decides to act upon it and make an arrest, the citizen is not liable for false imprisonment. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 373; Miller v. Fano (1901) 134 Cal. 103, 107.) A citizen is not liable for false imprisonment if, acting in good faith, the citizen simply furnishes information leading to an arrest without taking an active role in the arrest. (Turner v. Mellon (1953) 41 Cal.2d 45, 48.) MTAs role of providing information given to it by a citizen does not, as a matter of law, give rise to civil liability for false imprisonment.
In Hagberg, our Supreme Court disapproved of Miller and Turner to the extent those cases recognized limitations on the unqualified privilege under Civil Code section 47, subdivision (b), applicable to a citizens communication to law enforcement personnel of suspected criminal activity. (Hagberg v. California Federal Bank FSB, supra, 32 Cal.4th at pp. 364-365, 375, fn. 8.)
MOSK, J., Concurring,
I concur.
C. Third Cause of Action—Negligence
Plaintiffs negligence cause of action is premised on the theory MTA had a duty to investigate the truth of the reported information that plaintiff had threatened to kill a witness. As with plaintiffs other arguments, his briefs contain no discussion of the elements of the cause of action for negligence, nor do they contain any citation to applicable authority which would impose such a duty on an employer upon receiving information of this nature. The issue is therefore forfeited. (Century Surety Co. v. Polisso, supra, 139 Cal.App.4th at p. 956; Paulus v. Bob Lynch Ford, Inc., supra, 139 Cal.App.4th at p. 685; Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979; In re Marriage of Schroeder, supra, 192 Cal.App.3d at p. 1164.)
Setting aside the issue of forfeiture, the trial court properly sustained the demurrer. " `The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.] Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court. " (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 57.) Given the policy encouraging the reporting of crimes to law enforcement, the danger of workplace violence, and the circumstance that the genesis of this case was an altercation at work, we reject the argument that MTA had a duty to conduct a private investigation of the alleged threat to kill a witness before reporting it to law enforcement.
The policy of the state to encourage an employer to take affirmative steps to protect employees is embodied in Code of Civil Procedure section 527.8, subdivision (a), which authorizes any employer to seek a "temporary restraining order and an injunction on behalf of the employee prohibiting further unlawful violence or threats of violence" when the "employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace . . . ." A " `[c]redible threat of violence is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose." (Id., subd. (b)(2).) Certainly if an employer may seek a restraining order in the context of potential workplace violence, the employer may also freely report the underlying conduct to law enforcement without fear of tort liability.
D. Fourth Cause of Action—Intentional Infliction of Emotional Distress
Plaintiff argues the trial court erred in sustaining the demurrer to the cause of action alleging intentional infliction of emotional distress. Plaintiffs briefs do not discuss the elements of intentional infliction of emotional distress or how MTAs conduct constituted the alleged tort. We deem the issue forfeited. (Century Surety Co. v. Polisso, supra, 139 Cal.App.4th at p. 956; Paulus v. Bob Lynch Ford, Inc., supra, 139 Cal.App.4th at p. 685; Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979; In re Marriage of Schroeder, supra, 192 Cal.App.3d at p. 1164.)
Assuming the issue had been fully briefed, the ruling of the trial court was manifestly correct. "The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiffs injuries were actually and proximately caused by the defendants outrageous conduct." (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) "Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593; Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 130-131.) "The fact that conduct might be termed outrageous is not itself sufficient. `The tort calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.)" (Ess v. Eskaton Properties, Inc., supra, 97 Cal.App.4th at pp. 130-131.)
Plaintiffs claim of intentional infliction of emotional distress is based upon the same facts supporting the causes of action for violation of the 4th and 14th Amendments and false imprisonment, to which we have held the demurrer was properly sustained. Given our conclusion that the trial court properly sustained the demurrer as to these other causes of action, "it follows that the [trial judge] did not abuse [her] discretion in finding a similar failure to prove the `extreme and outrageous conduct necessary to support a claim for intentional infliction of emotional distress." (Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 480.)
II
DENIAL OF LEAVE TO AMEND THE COMPLAINT
Plaintiff argues that if the demurrer was properly sustained to the first amended complaint, he should have been afforded leave to amend. Contrary to plaintiffs argument, the trial court did not abuse its discretion in denying leave to amend.
After the trial court indicated it was going to sustain the demurrer to the first amended complaint, the trial court asked if counsel for plaintiff could "make a representation that he can otherwise plead it." Counsel for plaintiff replied, "No, Your Honor. I submit that we put our best foot forward."
It is clear from the hearing on the demurrer that plaintiff did not seek leave to amend the complaint, but instead advised the trial court there was nothing to be gained by an opportunity to amend. "Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment. [Citation.] . . . However, the burden is on the plaintiff to demonstrate that the trial court abused its discretion. [Citations.] Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citation.]" (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.)
Moreover, plaintiff makes no suggestion on appeal as to how he intends to amend the complaint to overcome its defects. Absent an offer to allege facts establishing any of the other elements already pointed out as missing from plaintiffs causes of action and an indication of the ability to plead and prove facts which would establish the elements required, there is no basis for granting leave to amend. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349-350.) "While such a showing can be made for the first time to the reviewing court [citation], it must be made." (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.) We decline plaintiffs belated request for leave to amend the first amended complaint.
III
APPLICABILITY OF THE WORKERS COMPENSATION ACT AND GOVERNMENTAL IMMUNITY
In view of our conclusion that the demurrer was properly sustained for failure to allege sufficient facts as to all four causes of action, we need not address plaintiffs additional arguments that the trial court erred in finding that the Workers Compensation Act was plaintiffs sole remedy and that MTA was immune under the pertinent Government Code provisions.
DISPOSITION
The judgment is affirmed. Metropolitan Transit Authority shall recover its costs on appeal.
I concur:
TURNER, P. J.
First Cause of Action (Constitutional Violations)
I agree that plaintiff has failed to allege the requisite policy, custom or practice of MTA to state a cause of action under 42 United States Code section 1983. (Monell v. Department of Social Services (1978) 436 U.S. 658, 690-692.) Plaintiff has not set forth any theory for redress for constitutional violations by state officials that might be available other than through section 1983. Thus, plaintiff has not addressed whether his claim might be cognizable under Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388 [involving claims for constitutional violations]. (See Carlsbad Aquafarm, Inc. v. State Dept. of Health Services (2000) 83 Cal.App.4th 809, 815-816; Stalnaker v. Boeing Co. (1986) 186 Cal.App.3d 1291, 1303; Wolcher, Sovereign Immunity and the Supremacy Clause: Damages Against States in Their Own Courts for Constitutional Violations (1981) 69 Cal.L.Rev. 189.)
Second Cause of Action (False Imprisonment)
The allegations here are really for malicious prosecution—not false imprisonment. (See Jackson v. City of San Diego (1981) 121 Cal.App.3d 579, 585-586, disapproved on other grounds in Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 758.) Public entities are immune from liability for malicious prosecution. (Dawson v. Martin (1957) 150 Cal.App.2d 379, 381-382; Legis. Com. com., 32 Wests Ann. Gov. Code (1995 ed.) foll. § 821.6, p. 274; see also Richards v. Department of Alcoholic Beverage Control (2006) 139 Cal.App.4th 304, 317-318.)
Third Cause of Action (Negligence)
Plaintiff alleges that defendant failed to verify the threat before reporting it. Plaintiff further alleges that defendant knew that it hired the employees who purportedly made the false report about plaintiff and that defendant negligently hired the employees and negligently trained them.
I agree that defendant had no obligation under the facts pleaded to investigate further the threat before making a report to law enforcement. The other allegations of negligent hiring and negligent training are mixed into the cause of action. Plaintiff does not argue the validity of these claims in his briefs on appeal. They appear to be barred by the workers compensation exclusivity rule (Lab. Code, § 3602; see Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 712-715; Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1606, 1609) and by governmental immunity. (See Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1345-1348; see also Richards v. Department of Alcoholic Beverage Control, supra, 139 Cal.App.4th at p. 319, fn. 10; Van Ort v. Estate of Stanewich (9th Cir. 1996) 92 F.3d 831, 841; cf. Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1856 [student may plead claim for negligent hiring of teacher who molested her].)
Fourth Cause of Action (Intentional Infliction of Emotional Distress)
Plaintiff has not provided any discussion of whether the MTAs actions were a normal part of the employment relationship so as to be covered exclusively by the Workers Compensation Law under Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 159-161.
For the foregoing reasons, I would affirm the dismissal.