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FILED

Vincent P. Hurley #111215

Ryan M. Thompson #292281
LAW' OFFICES OF \'INCENT P. HURLEY
A Professional Cotporation
28 Seascape Village
Aptos, California 95003
Telephone: (831) 661-4800
Facsimile: (831) 661-4804

SEP 2 8 2015
TERESA A. RISI
f LEAK OF THE SUPERIOR COURT
CUMMlNG..'
DEPUTY

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Attorneys for Defendants

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

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MONTEREY

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)
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Plaintiff,
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vs.
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CITY OF CARMEL-BY-THE-SEA;
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LUKE E. POWELL, individually and in )
his official capac1ty as a Police Officer )
for the CITY OF CARMEL-BY-THE- )
SEA; COUNTY OF MONTEREY;
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MONTEREY COUNTY SHERIFF'S
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OFFICE, and DOES 1 through 50,
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inclusive,
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Defendants.
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Case No. M132929

JENNIFER DA SILVA,

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

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

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

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Plaintiff JENNIFER DASILVA on August 7, 2015.

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L
~TATEMENT _QF

FACTS AND PROCEDUR~

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

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

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P&.\ ISO Cit) of(;armel and ~gl Powell's Demurrer

Case No. M 132929

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

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

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

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

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

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

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

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

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

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

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

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

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

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Kreeft. RJN No.4, Exhibit D.

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

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

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

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

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

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

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(Seventh Cause of Action for Neghgence).

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

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

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

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

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

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

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P&A ISO City of Carmel and

~gt.

Po\\ ell's Demurrer

Ca~e

llio. M 112929

II.

LEGAL ARGUMENT

A.

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

Standard of Review.

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

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

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

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

(2011).

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

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

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

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

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complaint may be resolved against plaintiff, and facts not alleged are premmed not to exist.

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

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

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

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

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(1976).

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B.

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

GoYernment Code section 946.6(0.

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

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

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

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

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

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

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P&A 1~0 City o f Carmel and ~gt. PoweH s Demurrer

Ca<re No. M\32929

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

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

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

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

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

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

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

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

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

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

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

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time-barred.

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c.

The California Tort Claims Act Applies to both Public Entities and Public

Employees.

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

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

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

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

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

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

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

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III.

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CQNCLU~Q~

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

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

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

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P&A ISO Cit) of Cannel and Sgt. Powell"s Demurrer

Case No. M 132929

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

Emotional D istress, and the Seventh Cause of Action for Negligence.

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Dated: September

~{ 2015
LAW OFFICES OF VINCENT P . HURLEY
A Professional Corporation

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TL-

By:

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

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City of (;annel and Sgt. Powell's Demurrer

Cast:. No. M 132929