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1 DAVID CHIU, State Bar #189542
City Attorney
2 MEREDITH B. OSBORN, State Bar #250467 ELECTRONICALLY
Chief Trial Deputy FILED
3 NATASSIA KWAN, State Bar #294322 Superior Court of California,
County of San Francisco
Deputy City Attorney
4 Fox Plaza 07/03/2023
1390 Market Street, Sixth Floor Clerk of the Court
5 San Francisco, California 94102-5408 BY: SANDRA SCHIRO
Deputy Clerk
Telephone: (415) 554-4272
6 Facsimile: (415) 554-3837
E-Mail: natassia.kwan@sfcityatty.org
7
8 Attorneys for Defendants
City & County of San Francisco
9 (erroneously sued as The San Francisco Public Utilities Commission1),
Mayor London Breed, Sheriff Paul Miyamoto,
10 Specially Appearing Defendants2 Tina Tam, Michael
Borovina, Jennifer Choi and Corey Teague
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF SAN FRANCISCO
13
UNLIMITED JURISDICTION
14
PHUONG T. NGUYEN, Case No. CGC-21-591803
15
Plaintiff, MEMORANDUM OF POINTS AND
16 AUTHORITIES IN SUPPORT OF DEMURRER
vs. TO SECOND AMENDED COMPLAINT
17 (CAUSE OF ACTION NO. 14) ON BEHALF OF
LONDON BREED; MAYOR OF SAN DEFENDANTS MAYOR LONDON BREED,
18 FRANCISCO; CITY OF SAN FRANCISCO; SHERIFF PAUL MIYAMOTO, AND
PG & E CORPORATION; PACIFIC GAS SPECIALLY APPEARING DEFENDANTS2
19 AND ELECTRIC COMPANY, A TINA TAM, MICHAEL BOROVINA,
CORPORATION; RECOLOGY EAST BAY, JENNIFER CHOI AND COREY TEAGUE,
20 A CORPORATION; RECOLOGY SUNSET AND THE SAN FRANCISCO PUBLIC
SCAVENGER, A BUSINESS FORM UTILITIES COMMISSION1
21 UNKNOWN; SAN FRANCISCO PUBLIC I
UTITUTIES COMMISSION; PAUL M.
22 MIYAMOTO AKA SAN FRANCISCO Hearing Date: August 7, 2023
COUNTY SHERIFF; ZARNEER RIAZ Hearing Judge: Hon. Charles F. Haines
23 AZAM; ABDUL AZARN; JASON PAUL Time: 9:30 a.m.
VOELKER; JUAN S. RUIZ AKA JUAN Place: Dept. 501
24 SALVADOR RUIZ; SHARAD JAIN;
25
1
The San Francisco Public Utilities Commission (“SF PUC”) is not a properly named defendant, The
26 SF PUC is a department of the City and County of San Francisco, and is not a properly joined
defendant because it does not have the power to sue or be sued, and is not an independent public
27 corporation. (See Bauer v. County of Ventura (1955) 45 Cal.2d 276, 288-289; compare Gov. Code, §§
23000, 23004(a); See also San Francisco Charter, Art. IV, Section 4.102 [does not confer right to sue
28 or be sued on departments].)
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CRASHPAD LLC; CRASHPADZ INC; Date Action Filed: May 25, 2021
1 EXCALIBUR TRADING LLC; SF Trial Date: Not Set
CRASHPAD LLC; SF CRASHPADZ LLC;
2 SFC CRASHPAD LLC; SFO CRASHPAD
LLC; DC CRASHPAD, LLC; ' COREY A.
3 TEAGUE; RYAN JAMES PATTERSON;
JENNIFER EUNJIN CHOI; TINA T. TAM;
4 WILLIAMJ.COAKER; MICHAEL J.
BOROVINA JR.; AND DOES 1
5 THROUGH 100,
6 Defendants.
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1 TABLE OF CONTENTS
2 TABLE OF AUTHORITIES ...........................................................................................................4
MEMORANDUM OF POINTS AND AUTHORITIES .................................................................6
3
I. INTRODUCTION ............................................................................................................6
4
I. FACTUAL AND PROCEDURAL BACKGROUND.............................................7
5 A. Procedural History .......................................................................................7
6 B. Statement of Facts ........................................................................................7
7 II. PLAINTIFF’S CLAIM OF CONSPIRACY AGAINST CIVIL RIGHTS (Cause
of Action No. 14) FAILS TO STATE A CLAIM AND IS FATALLY
8 UNCERTAIN. .........................................................................................................7
9 A. Plaintiff’s Second Amended Complaint Fails to Satisfy the Court Order
from April 18, 2023 as it Adds the Legal Standard But Not the Required
10 Facts. ............................................................................................................8
11 B. Plaintiff’s Conspiracy Claim Must Fail as Uncertain and Unintelligible. ...9
III. DEFENDANTS LONDON BREED, PAUL MIYAMOTO AND SPECIALLY
12 APPEARING DEFENDANTS TINA TAM, MICHAEL BOROVINA, THE
13 SAN FRANCISCO PUBLIC UTILITIES COMMISSION, JENNIFER CHOI
AND COREY TEAGUE ARE INCORRECTLY NAMED AS DEFENDANTS
14 AND SHOULD BE DISMISSED. ........................................................................10
A. All Named City Defendants Should be Dismissed as They Have
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Immunity for their Discretionary Acts, under Government Code Section
16 820.2...........................................................................................................10
1. Mayor of City & County of San Francisco, London Breed Should
17
be Dismissed. .................................................................................11
18 2. Sheriff Paul Miyamoto and Deputy Sheriff Michael Borovina
(Specially Appearing Defendants) Should be Dismissed. .............12
19
3. Tina Tam (Specially Appearing Defendant) Should be
20 Dismissed. ......................................................................................12
21 4. Specially Appearing Defendant Deputy City Attorney Jennifer
Choi Should be Dismissed. ............................................................12
22
5. Specially Appearing Defendant Zoning Administrator Corey
23 Teague be Dismissed. ....................................................................13
6. The San Francisco Public Utilities Commission Should be
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Dismissed as an Improperly Named Defendant.............................13
25 IV. PLAINTIFF’S DEFECTIVE COMPLAINT CANNOT BE CURED BY
AMENDMENT......................................................................................................14
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V. CONCLUSION ......................................................................................................14
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1 TABLE OF AUTHORITIES
2 State Cases
City of Dinuba v. County of Tulare
3 (2007) 41 Cal.4th 859 ................................................................................................................14
4 Cleveland v. Taft Union High School Dist.
(2022) 76 Cal.App.5th 776 ........................................................................................................11
5
Gonzalez v. State of California
6
68 Cal.App.3d at 633 .................................................................................................................10
7
Johnson v. State of California
8 (1968) 69 Cal.2d 782 ...........................................................................................................10, 11
9 Joiyah v. City & Cty. of San Francisco et al
No. CGC-18-568689 (S.F. Superior Court, Sep. 20, 2020 ........................................................13
10
Lawrence v. Bank of America
11 (1985) 163 Cal.App.3d 431 .......................................................................................................14
12
Lopez v. Southern Cal. Rapid Transit Dist.
13 (1985) 40 Cal.3d 780 ...................................................................................................................8
14 Searcy v. Hemet Unif. School Dist.
(1986) 177 Cal.App.3d 792 .....................................................................................................8, 9
15
Stansfield v. Starkey
16 (1990) 220 Cal.App.3d 59 ...........................................................................................................9
17 Susman v. City of Los Angeles
18 (1969) 269 Cal.App.2d 803 .....................................................................................................8, 9
19 Talbot v. City of Pasadena
(1938) 28 Cal.App.2d 271 .........................................................................................................13
20
State Statutes & Codes
21
California Code of Civil Procedure
22 Sections 430.10 (e)-(f) .................................................................................................................8
23 California Government Code
24 Section 815.2 .............................................................................................................................10
25 California Government Code
Section 820.2 ..................................................................................................................... passim
26
Federal Cases
27 Holley v. Cal. Dep’t of Corr.
599 F.3d 1108 ......................................................................................................................11, 13
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Kentucky v. Graham
1 (1985) 473 U.S. 159 .............................................................................................................11, 13
2 Federal Statutes
3 42 United States Code
Section 1985 ....................................................................................................................6, 7, 8, 9
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendants Mayor London Breed, Sheriff Paul Miyamoto, The San Francisco Public Utilities
4 Commission1, and Specially Appearing Defendants2 Tina Tam, Michael Borovina, Jennifer Choi and
5 Corey Teague (hereinafter referred to collectively as “the City Defendants”) hereby demur to Cause of
6 Action No. 14 (Conspiracy Against Civil Rights under 42 U.S.C. §1985) of the Second Amended
7 Complaint of Plaintiff Phuong Nguyen.
8 The grounds for the City Defendants’ demurrer is that Plaintiff Phuong Nguyen’s (“Plaintiff”)
9 cause of action No. 14 (Conspiracy Against Civil Rights under 42 U.S.C § 1985) in the Second
10 Amended Complaint fails to state a claim. Specifically, as required by the Court’s Order dated April
11 18, 2023, Plaintiff has not alleged facts in her Second Amended Complaint in support of each element
12 of this claim, nor has she alleged facts showing that the City employees are not subject to immunity.
13 As such, cause of action No. 14 in the Second Amended Complaint should be dismissed.
14 Furthermore, pursuant to the Court’s Order, the 14th cause of action in the Second Amended
15 Complaint must also fail because it does not include any explanation as to why the City Defendants
16 are not entitled to immunity. Mayor London Breed, Sheriff Paul Miyamoto, and Specially Appearing
17 Defendants Jennifer Choi, Corey Teague, Tina Tam, Michael Borovina, and The San Francisco Public
18 Utilities Commission should be dismissed as improper defendants as they have discretionary immunity
19 for their official actions pursuant to Gov. Code §820.2(b), and any attempts to sue them is the same as
20 suing the City, which is already a defendant in this matter.
21 Accordingly, the City Defendants’ demurrer to Claim No. 14 in the Second Amended
22 Complaint should be sustained without leave to amend, and Mayor London Breed, Sheriff Paul
23 Miyamoto, and Specially Appearing Defendants Jennifer Choi, Corey Teague, Tina Tam, Michael
24 Borovina, and The San Francisco Public Utilities Commission should be dismissed.
25
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The Specially Appearing Defendants (Tina Tam, Michael Borovina, The San Francisco Public
27 Utilities Commission) contest the improper attempted service of the Summons and First Amended
Complaint, and reserve all objections, based in part on the fact that they were not personally served
28 and/or were not served at the proper location, and thus request dismissal based on improper service.
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I. FACTUAL AND PROCEDURAL BACKGROUND
1
A. Procedural History
2
On July 15, 2021, Plaintiff filed a First Amended Complaint in this Court. (FAC at p. 1.)
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After a hearing on Defendants’ demurrer to Plaintiffs’ FAC, the Court issued a ruling on April 18,
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2023 which sustained Defendants’ demurrer with leave to amend as to cause of action No. 14,
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Conspiracy Against Civil Rights, 42 U.S.C. § 1985(3). The Court’s Order Sustaining in Part and
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Overruling in Part Defendants’ Demurrer to the Second Amended Complaint stated:
7
“Demurrer is sustained with leave to amend as to the 14th cause of action for
8 Plaintiff to allege facts in support of each element of this cause of action and to
9 allege facts showing that the city employees are not subject to immunity.”
(Order Sustaining in Part and Overruling in Part Defendants’ Demurrer to the Second Amended
10
Complaint, dated April 18, 2023) (hereinafter “Court Order”). After the Court’s Order, Plaintiff filed
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a Second Amended Complaint on May 1, 2023. On May 19, 2023, and again on June 26, 2023,
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counsel for the City Defendants emailed Plaintiff for her availability to meet and confer regarding
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Defendants’ demurrer to the Second Amended Complaint. Plaintiff did not respond to counsel’s
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emails, so the parties have not discussed Plaintiff’s Second Amended Complaint.
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B. Statement of Facts
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To guard against the spread of the COVID-19 virus, on February 25, 2020, Mayor London
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Breed declared a local emergency and on March 13, 2020, Mayor Breed issued a moratorium on
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evictions. This moratorium applied to eviction related to landlord attempts to recover possession of
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residential units, such as through unlawful detainer actions, and for non-payment of rent by residential
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tenants. Due to state and local COVID-19 restrictions, San Francisco Sheriff’s Office postponed
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evictions until it was deemed safe to do so. On June 30, 2021, San Francisco Sheriff’s Office
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completed the eviction at 609 Cambridge Street.
23
II. PLAINTIFF’S CLAIM OF CONSPIRACY AGAINST CIVIL RIGHTS (Cause of Action
24 No. 14) FAILS TO STATE A CLAIM AND IS FATALLY UNCERTAIN.
25 Plaintiff’s 14th cause of action continues to be fatally deficient, as it does not comply with the
26 Court’s April 18, 2023 Order requesting that Plaintiff “allege facts in support of each element of this
27 cause of action and to allege facts showing that the city employees are not subject to immunity.”
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1 Plaintiff’s claim fails under California Code of Civil Procedure as it is not pled with the requisite
2 particularity, fails to state a claim, and is too uncertain to be understood. Cal. Code. Civ. Proc.
3 §§430.10 (e)-(f).
4 A. Plaintiff’s Second Amended Complaint Fails to Satisfy the Court Order from
April 18, 2023 as it Adds the Legal Standard, But Not the Required Facts.
5
Reviewing Plaintiff’s Second Amended Complaint, Plaintiff adds the law regarding a 42 U.S.C
6
§1985 conspiracy claim, but the SAC is still devoid of particular facts to support each element of a
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conspiracy action to survive the pleadings stage. While Plaintiff has added new paragraphs 152
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through paragraph 156 which state the legal standard for a conspiracy civil rights claim, those new
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paragraphs are devoid of any particular facts that plausibly meet the legal standard. Accordingly,
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Plaintiff’s conspiracy claim must fail as it is not pled with the required particularity.
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Plaintiff’s 42 U.S.C §1985 conspiracy claim is a statutory cause of action, and as such, Plaintiff
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is required to plead all of the elements with particularity. Searcy v. Hemet Unif. School Dist. (1986)
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177 Cal.App.3d 792, 802.; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) In
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order for Plaintiff to state a cause of action, “every fact essential to the existence of statutory liability
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must be pleaded with particularity, including the existence of a statutory duty.” (Susman v. City of Los
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Angeles (1969) 269 Cal.App.2d 803, 809.)
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There are no facts pled in the Complaint that support Plaintiff’s conclusory claim of civil rights
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conspiracy. Although Plaintiff alleges “defendants acted in concert” and with intent to “depriv[e]
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Plaintiff of the right to the independent use and control of her property,” the Complaint is devoid of
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facts that would substantiate these claims or give defendants an opportunity to meaningfully respond
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to these allegations. (Id. at ¶ 150.) Plaintiff makes conclusory allegations of the Mayor’s knowledge
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and that the City “maliciously cited Plaintiff Nguyen with Local Ordinance Violations”, alleging that
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“Defendant London Breed was informed” about the tenants at Plaintiff’s property and that Plaintiff
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contacted “Jennifer Choi, the City Attorney on numerous occasions” about the property concerns. (Id.
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at ¶ 162, 165.)
26
Moreover, the Second Amended Complaint’s reference to Plaintiff’s “independent
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investigation” which Plaintiff alleges shows that “Each named defendant conspired against Plaintiff
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1 Nguyen” (Id. at ¶ 157) also lacks the required particularity as it simply refers to Plaintiff’s
2 investigation and reiterates the legal standard for conspiracy. Merely referencing an investigation is
3 insufficient, without plausible facts included. The Second Amended Complaint cause of action No. 14
4 for conspiracy simply does not contain the plausible, particular facts that are required by both the
5 Court’s Order and the law.
6 Accordingly, Plaintiff’s conclusory civil rights conspiracy claim cannot survive as “every fact
7 essential to the existence of statutory liability must be pleaded with particularity, including the
8 existence of a statutory duty.” (Susman, supra, 269 Cal.App.2d at 809.) There is no evidence showing
9 actions or conspiracy under color of law to do anything that may violate or lead to the violation of a
10 civil right. (42 U.S.C. § 1985.)
11 B. Plaintiff’s Conspiracy Claim Must Fail as Uncertain and Unintelligible.
12 Plaintiff’s allegations are also fatally uncertain and unintelligible. A demurrer based on
13 uncertainty is appropriate when, as here, a plaintiff’s allegations with respect to material matters are
14 such that the defendants cannot tell what they are supposed to respond to and how to respond.
15 (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 65 fn 3.) Here, Plaintiff vaguely claims that
16 Defendants hold an “ulterior motive.” (SAC at ¶ 150.) To support this, Plaintiff referenced the “thick
17 red tape” placed on landlords attempting to evict tenants. (Compl. at ¶ 163.) Plaintiff stated that the
18 City and London Breed had “knowledge of the ‘thick red tape’” and cited this as evidence of their
19 ulterior motives and the alleged civil rights violation. (Id.) Plaintiff’s conclusory, vague, and
20 unverified allegations continue that “communism may still be flourishing” in San Francisco County
21 Sheriff Paul Miyamoto’s family. (Id. at ¶ 161.) This is baseless conjecture. Plaintiff references a
22 Wikipedia article and speculates that Sheriff Miyamoto is a descendent of a deceased communist,
23 which has no relevance or bearing in this lawsuit (Id. at ¶ 26.) Plaintiff’s ambiguous and unverified
24 allegations fail to give the City adequate notice and the requisite particularity to respond to these
25 unintelligible theories.
26 Based on the allegations, the Defendants are forced to speculate as to what specific conduct is
27 at issue, which individuals were involved, the dates of events, and every other material matter.
28 Because this is a statutory cause of action, Plaintiff is required to plead all of the elements with
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1 particularity. (Searcy, supra, 177 Cal.App.3d at 802.) However, Plaintiff’s allegations fall short of
2 this standard and are fatally uncertain. (See Gonzalez v. State of Cal. (1977) 68 Cal.App.3d 621, 633-
3 34 [sustaining demurrer because the court was unable to ascertain the basis for plaintiffs’ claims from
4 the Complaint].) Accordingly, this demurrer should be sustained.
5 III. DEFENDANTS LONDON BREED, PAUL MIYAMOTO AND SPECIALLY
APPEARING DEFENDANTS TINA TAM, MICHAEL BOROVINA, THE SAN
6 FRANCISCO PUBLIC UTILITIES COMMISSION, JENNIFER CHOI AND COREY
TEAGUE ARE INCORRECTLY NAMED AS DEFENDANTS AND SHOULD BE
7 DISMISSED.
8 Pursuant to the Court’s Order, the 14th cause of action in the Second Amended Complaint
9 must also fail because it does not explain why the City Defendants are not entitled to immunity. The
10 individually named Defendants – London Breed, Paul Miyamoto, Tina Tam, Michael Borovina,
11 Jennifer Choi, and Corey Teague – are improperly named as defendants because they are City officials
12 or City employees acting in their official capacity and protected by discretionary immunity under Gov.
13 Code, §820.2(b). The San Francisco Public Utilities Commission is improperly named defendant
14 because it is a municipal department that is not subject to suit.
15 Therefore, City Defendants London Breed, Paul Miyamoto, Tina Tam, Michael Borovina,
16 Jennifer Choi, Corey Teague, and The San Francisco Public Utilities Commission should be
17 dismissed.
18 A. All Named City Defendants Should be Dismissed as They Have Immunity for their
Discretionary Acts, under Government Code Section 820.2.
19
Plaintiff’s claims against City employees must fail here as all the conduct alleged stems for
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their official discretionary acts, part of the course and conduct of their employment. City employees’
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discretionary acts are afforded immunity under Gov. Code, §820.2(b): “[A] public employee is not
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liable for an injury resulting from his act or omission where the act or omission was the result of the
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exercise of the discretion vested in him.” The landmark case of Johnson v. State of California (1968)
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69 Cal.2d 782, 73 explained that discretionary immunity applies to “areas of quasi-legislative policy-
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making”, and policy-making actions receive immunity as a discretionary act. Moreover, the City and
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County of San Francisco is not liable when its employees are afforded discretionary immunity. (“[A]
27
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1 public entity is not liable for an injury resulting from an act or omission of an employee of the public
2 entity where the employee is immune from liability.”) Gov. Code, § 815.2.
3 Here, Plaintiff’s Complaint stems from the City’s decision to not enforce an eviction, which
4 was based on the Mayor’s eviction moratorium, a legally valid emergency enactment during the
5 COVID-19 pandemic. A Mayoral emergency enactment during a crisis – in this case, the COVID-19
6 pandemic – is a textbook example of governmental policy-making that is sufficiently sensitive
7 discretionary conduct entitled to immunity. (Cleveland v. Taft Union High School Dist. (2022) 76
8 Cal.App.5th 776, 801 (citing Johnson, supra, 69 Cal.2d at 783).) The same discretionary immunity
9 defenses apply to Sheriff Paul Miyamoto, Specially Appearing Defendants Tina Tam, Michael
10 Borovina, and The San Francisco Public Utilities Commission, all City employees or Departments that
11 were implementing the Mayoral COVID-19 policies and eviction moratorium. The government must
12 be able to make discretionary decisions and enact policies in the public interest – especially during
13 emergencies – and those discretionary actions are protected by Government Code Section 820.2.
14 1. Mayor of City & County of San Francisco, London Breed Should be Dismissed.
15 Plaintiff has named London Breed, the Mayor of San Francisco, as a defendant in this action3.
16 Based on the allegations in the Complaint, Mayor Breed’s conduct was at all times in her official
17 capacity as Mayor of San Francisco, not as an individual. (SAC at ¶ 58, 70-72, 86-171.) Plaintiffs’
18 Complaint does not once make any allegations as to Mayor Breed’s off-duty conduct or involvement
19 in any of the events stated in her Complaint that is separate from her role as the Mayor of San
20 Francisco. Accordingly, the effect of Plaintiffs’ lawsuit is to name Mayor Breed in her official
21 capacity, which is the same as simply suing the City. Kentucky v. Graham, 473 U.S. 159, 165-166
22 (1985); see also Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010) (treating suit
23 against state officials in their official capacities as a suit against the state of California). Thus, this
24 Court should dismiss Mayor Breed as a named defendant from this action.
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Plaintiffs have not served the Complaint and summons on Mayor Breed in her individual
28 capacity.
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2. Sheriff Paul Miyamoto and Deputy Sheriff Michael Borovina (Specially
1 Appearing Defendants) Should be Dismissed.
2 Similarly, Paul M. Miyamoto, the City and County of San Francisco Sheriff (“Sheriff
3 Miyamoto”) and Deputy Sheriff Michael Borovina are incorrectly named as Defendants in this
4 lawsuit. In relation to her legal claims, Plaintiffs’ Complaint also does not include any allegations
5 regarding any conduct of Sheriff Miyamoto during his tenure as Sheriff, that is separate from his role
6 as the Sheriff. Plaintiff’s baseless speculation about Sheriff Miyamoto’s family (SAC ¶ 24-30, 152-
7 171 inter alia) has no bearing on Plaintiff’s claims relating to her property and the Sheriff’s policies on
8 evictions during the Covid-19 pandemic. Plaintiff states that Deputy Sheriff Borovina works at the
9 “County Sheriff building” (SAC ¶17), but does not plead any specific conduct that Deputy Borovina
10 did that is legally actionable. Thus, this Court should dismiss Sheriff Miyamoto and Deputy Sheriff
11 Michael Borovina as named Defendants from this action.
12 3. Tina Tam (Specially Appearing Defendant) Should be Dismissed.
13 Planning Department employee Tina Tam is incorrectly named as Defendants in this lawsuit.
14 Plaintiff’s allegations about a fine issued by Corey Teague and Tina Tam (SAC ¶¶ 12, 15) were in the
15 course and scope of their employment as City employees, in their official capacity.
16 Based on the conduct alleged in the SAC, Tina Tam’s alleged actions were all part of her job as
17 City employees, and thus also official acts that resulted from the exercise of the discretion vested in
18 her. Therefore, claims against Tina Tam are barred by the discretionary immunity afforded by Gov.
19 Code, §820.2(b).
20 4. Specially Appearing Defendant Deputy City Attorney Jennifer Choi Should be
Dismissed.
21
Plaintiff has improperly named Specially Appearing Defendant Deputy City Attorney Jennifer
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Choi, as a defendant in this action4. Based on the allegations in the Complaint, Specially Appearing
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Defendant Deputy Choi’s conduct was at all times undertaken in her official capacity as a Deputy City
24
Attorney, not as an individual. (SAC ¶¶ 58, 70, 109, 114, 141, 143, 152-171, inter alia). Plaintiff’s
25
allegations against Specially Appearing Defendant Deputy City Attorney Choi center on Plaintiff’s
26
27
4
Plaintiff has not served the Complaint and summons on Jennifer Choi nor Corey Teague in
28 their individual capacities.
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1 discontent that Specially Appearing Defendant Deputy Choi could not assist with “expediting the
2 process of evicting or ejecting the occupants from 609 Cambridge Street” (SAC ¶¶ 114, 141, 165).
3 Plaintiff’s allegations are not legally actionable under any of the claims she has brought, and
4 importantly, evictions and ejections are not directly implemented or administered by the City
5 Attorney’s Office or Deputy City Attorneys. Rather, the Writs of Possession are executed by the San
6 Francisco Sheriff’s Office.
7 Moreover, Plaintiffs’ Complaint does not once make any allegations as to Specially Appearing
8 Defendant Deputy Choi’s off-duty conduct or involvement in any of the events stated in her Complaint
9 that is separate from her role as an attorney for the San Francisco City Attorney’s Office. Accordingly,
10 the effect of Plaintiffs’ lawsuit is to name Specially Appearing Defendant Deputy City Attorney Choi
11 in her official capacity, which is the same as simply suing the City. Kentucky v. Graham, 473 U.S.
12 159, 165-166 (1985); see also Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010)
13 (treating suit against state officials in their official capacities as a suit against the state of California).
14 Thus, this Court should dismiss Specially Appearing Defendant Deputy City Attorney Jennifer Choi as
15 a named defendant from this action.
16 5. Specially Appearing Defendant Zoning Administrator Corey Teague be
Dismissed.
17
Plaintiff has improperly named Specially Appearing Defendant Zoning Administrator Corey
18
Teague as a Defendant in this lawsuit.3 Plaintiff’s allegations about Specially Appearing Defendant
19
Corey Teague issuing a fine (SAC ¶¶ 11, 152-171) undisputedly refers to an act undertaken in the
20
course and scope of his employment as Zoning Administrator, and in his official capacity.
21
Based on the conduct alleged in the FAC, Specially Appearing Defendant Corey Teague’s
22
alleged actions were part of his job as a City employee, and thus constituted an official act that
23
resulted from the proper exercise of his official discretion. Therefore, all claims against Corey Teague
24
are barred by the discretionary immunity afforded by Gov. Code, §820.2(b).
25
6. The San Francisco Public Utilities Commission Should be Dismissed as an
26 Improperly Named Defendant.
27 The San Francisco Public Utilities Commission is not an independent public corporation and
28 does not have the power to sue or be sued. Courts have found that California municipal departments
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1 are not themselves subject to suit, as they have “no separate existence and [are] incapable of either
2 suing or being sued.” Joiyah v. City & Cty. of San Francisco et al., No. CGC-18-568689 (S.F.
3 Superior Court, Sep. 20, 2020) (Order Regarding Def. Fine Arts Museums of San Francisco’s Mot. for
4 Summ. J.) (citing Talbot v. City of Pasadena (1938) 28 Cal.App.2d 271, 274)). Accordingly, the
5 effect of Plaintiffs’ lawsuit naming The San Francisco Public Utilities Commission as a defendant in
6 this action operates the same way as simply suing the City. Accordingly, The San Francisco Public
7 Utilities Commission should be dismissed, as the City and County of San Francisco is the only
8 correctly-named municipal defendant in this action.
9 IV. PLAINTIFF’S DEFECTIVE COMPLAINT CANNOT BE CURED BY AMENDMENT.
10 Plaintiff has already had two additional attempts to cure her Complaint, via the Second
11 Amended Complaint and First Amended Complaint. The demurrer should be sustained without leave
12 to amend because there is no “reasonable possibility” that Plaintiff can cure the defective Second
13 Amended Complaint. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) When the
14 facts alleged in the Complaint make it clear that no liability exists as a matter of law, leave to amend
15 should not be granted. Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436-37.)
16 Consequently, the City Defendants’ demurrer should be sustained without leave to amend.
17 V. CONCLUSION
18 Based on the legal authority presented above and the four corners of the SAC, Plaintiff’s claim
19 of conspiracy (claim No. 14) also fails to state a claim and is defectively uncertain and should be
20 dismissed.
21 Pursuant to the Court’s Order, the Second Amended Complaint does not explain why the City
22 Defendants are not subject to immunity, and as such Mayor London Breed, Sheriff Paul Miyamoto,
23 and Specially Appearing Defendants Jennifer Choi, Corey Teague, Tina Tam, Michael Borovina, and
24 The San Francisco Public Utilities Commission should be dismissed as improper defendants as they
25 have discretionary immunity for their official actions pursuant to Gov. Code §820.2(b), and any
26 attempts to sue them is the same as suing the City, which is already a defendant in this matter.
27 ///
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DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx
1 Accordingly, the City Defendants’ demurrer to Claim No. 14 in the Second Amended
2 Complaint should be sustained without leave to amend, and Mayor London Breed, Sheriff Paul
3 Miyamoto, and Specially Appearing Defendants Jennifer Choi, Corey Teague, Tina Tam, Michael
4 Borovina, and The San Francisco Public Utilities Commission should be dismissed.
5 Dated: July 3, 2023
6 DAVID CHIU
City Attorney
7 MEREDITH B. OSBORN
Chief Trial Deputy
8 NATASSIA KWAN
9 Deputy City Attorney
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By: /s/ Natassia Kwan
11 NATASSIA KWAN
12 Attorneys for Defendants City & County of San
Francisco (erroneously sued as The San Francisco Public
13 Utilities Commission1), Mayor London Breed, Sheriff
Paul Miyamoto, Specially Appearing Defendants2 Tina
14 Tam, Michael Borovina, Jennifer Choi and Corey Teague
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DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx
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1 DAVID CHIU, State Bar #189542 City Attorney 2 MEREDITH B. OSBORN, State Bar #250467 ELECTRONICALLY Chief Trial Deputy FILED 3 NATASSIA KWAN, State Bar #294322 Superior Court of California, County of San Francisco Deputy City Attorney 4 Fox Plaza 07/03/2023 1390 Market Street, Sixth Floor Clerk of the Court 5 San Francisco, California 94102-5408 BY: SANDRA SCHIRO Deputy Clerk Telephone: (415) 554-4272 6 Facsimile: (415) 554-3837 E-Mail: natassia.kwan@sfcityatty.org 7 8 Attorneys for Defendants City & County of San Francisco 9 (erroneously sued as The San Francisco Public Utilities Commission1), Mayor London Breed, Sheriff Paul Miyamoto, 10 Specially Appearing Defendants2 Tina Tam, Michael Borovina, Jennifer Choi and Corey Teague 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN FRANCISCO 13 UNLIMITED JURISDICTION 14 PHUONG T. NGUYEN, Case No. CGC-21-591803 15 Plaintiff, MEMORANDUM OF POINTS AND 16 AUTHORITIES IN SUPPORT OF DEMURRER vs. TO SECOND AMENDED COMPLAINT 17 (CAUSE OF ACTION NO. 14) ON BEHALF OF LONDON BREED; MAYOR OF SAN DEFENDANTS MAYOR LONDON BREED, 18 FRANCISCO; CITY OF SAN FRANCISCO; SHERIFF PAUL MIYAMOTO, AND PG & E CORPORATION; PACIFIC GAS SPECIALLY APPEARING DEFENDANTS2 19 AND ELECTRIC COMPANY, A TINA TAM, MICHAEL BOROVINA, CORPORATION; RECOLOGY EAST BAY, JENNIFER CHOI AND COREY TEAGUE, 20 A CORPORATION; RECOLOGY SUNSET AND THE SAN FRANCISCO PUBLIC SCAVENGER, A BUSINESS FORM UTILITIES COMMISSION1 21 UNKNOWN; SAN FRANCISCO PUBLIC I UTITUTIES COMMISSION; PAUL M. 22 MIYAMOTO AKA SAN FRANCISCO Hearing Date: August 7, 2023 COUNTY SHERIFF; ZARNEER RIAZ Hearing Judge: Hon. Charles F. Haines 23 AZAM; ABDUL AZARN; JASON PAUL Time: 9:30 a.m. VOELKER; JUAN S. RUIZ AKA JUAN Place: Dept. 501 24 SALVADOR RUIZ; SHARAD JAIN; 25 1 The San Francisco Public Utilities Commission (“SF PUC”) is not a properly named defendant, The 26 SF PUC is a department of the City and County of San Francisco, and is not a properly joined defendant because it does not have the power to sue or be sued, and is not an independent public 27 corporation. (See Bauer v. County of Ventura (1955) 45 Cal.2d 276, 288-289; compare Gov. Code, §§ 23000, 23004(a); See also San Francisco Charter, Art. IV, Section 4.102 [does not confer right to sue 28 or be sued on departments].) 1 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx CRASHPAD LLC; CRASHPADZ INC; Date Action Filed: May 25, 2021 1 EXCALIBUR TRADING LLC; SF Trial Date: Not Set CRASHPAD LLC; SF CRASHPADZ LLC; 2 SFC CRASHPAD LLC; SFO CRASHPAD LLC; DC CRASHPAD, LLC; ' COREY A. 3 TEAGUE; RYAN JAMES PATTERSON; JENNIFER EUNJIN CHOI; TINA T. TAM; 4 WILLIAMJ.COAKER; MICHAEL J. BOROVINA JR.; AND DOES 1 5 THROUGH 100, 6 Defendants. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES ...........................................................................................................4 MEMORANDUM OF POINTS AND AUTHORITIES .................................................................6 3 I. INTRODUCTION ............................................................................................................6 4 I. FACTUAL AND PROCEDURAL BACKGROUND.............................................7 5 A. Procedural History .......................................................................................7 6 B. Statement of Facts ........................................................................................7 7 II. PLAINTIFF’S CLAIM OF CONSPIRACY AGAINST CIVIL RIGHTS (Cause of Action No. 14) FAILS TO STATE A CLAIM AND IS FATALLY 8 UNCERTAIN. .........................................................................................................7 9 A. Plaintiff’s Second Amended Complaint Fails to Satisfy the Court Order from April 18, 2023 as it Adds the Legal Standard But Not the Required 10 Facts. ............................................................................................................8 11 B. Plaintiff’s Conspiracy Claim Must Fail as Uncertain and Unintelligible. ...9 III. DEFENDANTS LONDON BREED, PAUL MIYAMOTO AND SPECIALLY 12 APPEARING DEFENDANTS TINA TAM, MICHAEL BOROVINA, THE 13 SAN FRANCISCO PUBLIC UTILITIES COMMISSION, JENNIFER CHOI AND COREY TEAGUE ARE INCORRECTLY NAMED AS DEFENDANTS 14 AND SHOULD BE DISMISSED. ........................................................................10 A. All Named City Defendants Should be Dismissed as They Have 15 Immunity for their Discretionary Acts, under Government Code Section 16 820.2...........................................................................................................10 1. Mayor of City & County of San Francisco, London Breed Should 17 be Dismissed. .................................................................................11 18 2. Sheriff Paul Miyamoto and Deputy Sheriff Michael Borovina (Specially Appearing Defendants) Should be Dismissed. .............12 19 3. Tina Tam (Specially Appearing Defendant) Should be 20 Dismissed. ......................................................................................12 21 4. Specially Appearing Defendant Deputy City Attorney Jennifer Choi Should be Dismissed. ............................................................12 22 5. Specially Appearing Defendant Zoning Administrator Corey 23 Teague be Dismissed. ....................................................................13 6. The San Francisco Public Utilities Commission Should be 24 Dismissed as an Improperly Named Defendant.............................13 25 IV. PLAINTIFF’S DEFECTIVE COMPLAINT CANNOT BE CURED BY AMENDMENT......................................................................................................14 26 V. CONCLUSION ......................................................................................................14 27 28 3 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 1 TABLE OF AUTHORITIES 2 State Cases City of Dinuba v. County of Tulare 3 (2007) 41 Cal.4th 859 ................................................................................................................14 4 Cleveland v. Taft Union High School Dist. (2022) 76 Cal.App.5th 776 ........................................................................................................11 5 Gonzalez v. State of California 6 68 Cal.App.3d at 633 .................................................................................................................10 7 Johnson v. State of California 8 (1968) 69 Cal.2d 782 ...........................................................................................................10, 11 9 Joiyah v. City & Cty. of San Francisco et al No. CGC-18-568689 (S.F. Superior Court, Sep. 20, 2020 ........................................................13 10 Lawrence v. Bank of America 11 (1985) 163 Cal.App.3d 431 .......................................................................................................14 12 Lopez v. Southern Cal. Rapid Transit Dist. 13 (1985) 40 Cal.3d 780 ...................................................................................................................8 14 Searcy v. Hemet Unif. School Dist. (1986) 177 Cal.App.3d 792 .....................................................................................................8, 9 15 Stansfield v. Starkey 16 (1990) 220 Cal.App.3d 59 ...........................................................................................................9 17 Susman v. City of Los Angeles 18 (1969) 269 Cal.App.2d 803 .....................................................................................................8, 9 19 Talbot v. City of Pasadena (1938) 28 Cal.App.2d 271 .........................................................................................................13 20 State Statutes & Codes 21 California Code of Civil Procedure 22 Sections 430.10 (e)-(f) .................................................................................................................8 23 California Government Code 24 Section 815.2 .............................................................................................................................10 25 California Government Code Section 820.2 ..................................................................................................................... passim 26 Federal Cases 27 Holley v. Cal. Dep’t of Corr. 599 F.3d 1108 ......................................................................................................................11, 13 28 4 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx Kentucky v. Graham 1 (1985) 473 U.S. 159 .............................................................................................................11, 13 2 Federal Statutes 3 42 United States Code Section 1985 ....................................................................................................................6, 7, 8, 9 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 5 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendants Mayor London Breed, Sheriff Paul Miyamoto, The San Francisco Public Utilities 4 Commission1, and Specially Appearing Defendants2 Tina Tam, Michael Borovina, Jennifer Choi and 5 Corey Teague (hereinafter referred to collectively as “the City Defendants”) hereby demur to Cause of 6 Action No. 14 (Conspiracy Against Civil Rights under 42 U.S.C. §1985) of the Second Amended 7 Complaint of Plaintiff Phuong Nguyen. 8 The grounds for the City Defendants’ demurrer is that Plaintiff Phuong Nguyen’s (“Plaintiff”) 9 cause of action No. 14 (Conspiracy Against Civil Rights under 42 U.S.C § 1985) in the Second 10 Amended Complaint fails to state a claim. Specifically, as required by the Court’s Order dated April 11 18, 2023, Plaintiff has not alleged facts in her Second Amended Complaint in support of each element 12 of this claim, nor has she alleged facts showing that the City employees are not subject to immunity. 13 As such, cause of action No. 14 in the Second Amended Complaint should be dismissed. 14 Furthermore, pursuant to the Court’s Order, the 14th cause of action in the Second Amended 15 Complaint must also fail because it does not include any explanation as to why the City Defendants 16 are not entitled to immunity. Mayor London Breed, Sheriff Paul Miyamoto, and Specially Appearing 17 Defendants Jennifer Choi, Corey Teague, Tina Tam, Michael Borovina, and The San Francisco Public 18 Utilities Commission should be dismissed as improper defendants as they have discretionary immunity 19 for their official actions pursuant to Gov. Code §820.2(b), and any attempts to sue them is the same as 20 suing the City, which is already a defendant in this matter. 21 Accordingly, the City Defendants’ demurrer to Claim No. 14 in the Second Amended 22 Complaint should be sustained without leave to amend, and Mayor London Breed, Sheriff Paul 23 Miyamoto, and Specially Appearing Defendants Jennifer Choi, Corey Teague, Tina Tam, Michael 24 Borovina, and The San Francisco Public Utilities Commission should be dismissed. 25 26 2 The Specially Appearing Defendants (Tina Tam, Michael Borovina, The San Francisco Public 27 Utilities Commission) contest the improper attempted service of the Summons and First Amended Complaint, and reserve all objections, based in part on the fact that they were not personally served 28 and/or were not served at the proper location, and thus request dismissal based on improper service. 6 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx I. FACTUAL AND PROCEDURAL BACKGROUND 1 A. Procedural History 2 On July 15, 2021, Plaintiff filed a First Amended Complaint in this Court. (FAC at p. 1.) 3 After a hearing on Defendants’ demurrer to Plaintiffs’ FAC, the Court issued a ruling on April 18, 4 2023 which sustained Defendants’ demurrer with leave to amend as to cause of action No. 14, 5 Conspiracy Against Civil Rights, 42 U.S.C. § 1985(3). The Court’s Order Sustaining in Part and 6 Overruling in Part Defendants’ Demurrer to the Second Amended Complaint stated: 7 “Demurrer is sustained with leave to amend as to the 14th cause of action for 8 Plaintiff to allege facts in support of each element of this cause of action and to 9 allege facts showing that the city employees are not subject to immunity.” (Order Sustaining in Part and Overruling in Part Defendants’ Demurrer to the Second Amended 10 Complaint, dated April 18, 2023) (hereinafter “Court Order”). After the Court’s Order, Plaintiff filed 11 a Second Amended Complaint on May 1, 2023. On May 19, 2023, and again on June 26, 2023, 12 counsel for the City Defendants emailed Plaintiff for her availability to meet and confer regarding 13 Defendants’ demurrer to the Second Amended Complaint. Plaintiff did not respond to counsel’s 14 emails, so the parties have not discussed Plaintiff’s Second Amended Complaint. 15 B. Statement of Facts 16 To guard against the spread of the COVID-19 virus, on February 25, 2020, Mayor London 17 Breed declared a local emergency and on March 13, 2020, Mayor Breed issued a moratorium on 18 evictions. This moratorium applied to eviction related to landlord attempts to recover possession of 19 residential units, such as through unlawful detainer actions, and for non-payment of rent by residential 20 tenants. Due to state and local COVID-19 restrictions, San Francisco Sheriff’s Office postponed 21 evictions until it was deemed safe to do so. On June 30, 2021, San Francisco Sheriff’s Office 22 completed the eviction at 609 Cambridge Street. 23 II. PLAINTIFF’S CLAIM OF CONSPIRACY AGAINST CIVIL RIGHTS (Cause of Action 24 No. 14) FAILS TO STATE A CLAIM AND IS FATALLY UNCERTAIN. 25 Plaintiff’s 14th cause of action continues to be fatally deficient, as it does not comply with the 26 Court’s April 18, 2023 Order requesting that Plaintiff “allege facts in support of each element of this 27 cause of action and to allege facts showing that the city employees are not subject to immunity.” 28 7 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 1 Plaintiff’s claim fails under California Code of Civil Procedure as it is not pled with the requisite 2 particularity, fails to state a claim, and is too uncertain to be understood. Cal. Code. Civ. Proc. 3 §§430.10 (e)-(f). 4 A. Plaintiff’s Second Amended Complaint Fails to Satisfy the Court Order from April 18, 2023 as it Adds the Legal Standard, But Not the Required Facts. 5 Reviewing Plaintiff’s Second Amended Complaint, Plaintiff adds the law regarding a 42 U.S.C 6 §1985 conspiracy claim, but the SAC is still devoid of particular facts to support each element of a 7 conspiracy action to survive the pleadings stage. While Plaintiff has added new paragraphs 152 8 through paragraph 156 which state the legal standard for a conspiracy civil rights claim, those new 9 paragraphs are devoid of any particular facts that plausibly meet the legal standard. Accordingly, 10 Plaintiff’s conspiracy claim must fail as it is not pled with the required particularity. 11 Plaintiff’s 42 U.S.C §1985 conspiracy claim is a statutory cause of action, and as such, Plaintiff 12 is required to plead all of the elements with particularity. Searcy v. Hemet Unif. School Dist. (1986) 13 177 Cal.App.3d 792, 802.; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) In 14 order for Plaintiff to state a cause of action, “every fact essential to the existence of statutory liability 15 must be pleaded with particularity, including the existence of a statutory duty.” (Susman v. City of Los 16 Angeles (1969) 269 Cal.App.2d 803, 809.) 17 There are no facts pled in the Complaint that support Plaintiff’s conclusory claim of civil rights 18 conspiracy. Although Plaintiff alleges “defendants acted in concert” and with intent to “depriv[e] 19 Plaintiff of the right to the independent use and control of her property,” the Complaint is devoid of 20 facts that would substantiate these claims or give defendants an opportunity to meaningfully respond 21 to these allegations. (Id. at ¶ 150.) Plaintiff makes conclusory allegations of the Mayor’s knowledge 22 and that the City “maliciously cited Plaintiff Nguyen with Local Ordinance Violations”, alleging that 23 “Defendant London Breed was informed” about the tenants at Plaintiff’s property and that Plaintiff 24 contacted “Jennifer Choi, the City Attorney on numerous occasions” about the property concerns. (Id. 25 at ¶ 162, 165.) 26 Moreover, the Second Amended Complaint’s reference to Plaintiff’s “independent 27 investigation” which Plaintiff alleges shows that “Each named defendant conspired against Plaintiff 28 8 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 1 Nguyen” (Id. at ¶ 157) also lacks the required particularity as it simply refers to Plaintiff’s 2 investigation and reiterates the legal standard for conspiracy. Merely referencing an investigation is 3 insufficient, without plausible facts included. The Second Amended Complaint cause of action No. 14 4 for conspiracy simply does not contain the plausible, particular facts that are required by both the 5 Court’s Order and the law. 6 Accordingly, Plaintiff’s conclusory civil rights conspiracy claim cannot survive as “every fact 7 essential to the existence of statutory liability must be pleaded with particularity, including the 8 existence of a statutory duty.” (Susman, supra, 269 Cal.App.2d at 809.) There is no evidence showing 9 actions or conspiracy under color of law to do anything that may violate or lead to the violation of a 10 civil right. (42 U.S.C. § 1985.) 11 B. Plaintiff’s Conspiracy Claim Must Fail as Uncertain and Unintelligible. 12 Plaintiff’s allegations are also fatally uncertain and unintelligible. A demurrer based on 13 uncertainty is appropriate when, as here, a plaintiff’s allegations with respect to material matters are 14 such that the defendants cannot tell what they are supposed to respond to and how to respond. 15 (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 65 fn 3.) Here, Plaintiff vaguely claims that 16 Defendants hold an “ulterior motive.” (SAC at ¶ 150.) To support this, Plaintiff referenced the “thick 17 red tape” placed on landlords attempting to evict tenants. (Compl. at ¶ 163.) Plaintiff stated that the 18 City and London Breed had “knowledge of the ‘thick red tape’” and cited this as evidence of their 19 ulterior motives and the alleged civil rights violation. (Id.) Plaintiff’s conclusory, vague, and 20 unverified allegations continue that “communism may still be flourishing” in San Francisco County 21 Sheriff Paul Miyamoto’s family. (Id. at ¶ 161.) This is baseless conjecture. Plaintiff references a 22 Wikipedia article and speculates that Sheriff Miyamoto is a descendent of a deceased communist, 23 which has no relevance or bearing in this lawsuit (Id. at ¶ 26.) Plaintiff’s ambiguous and unverified 24 allegations fail to give the City adequate notice and the requisite particularity to respond to these 25 unintelligible theories. 26 Based on the allegations, the Defendants are forced to speculate as to what specific conduct is 27 at issue, which individuals were involved, the dates of events, and every other material matter. 28 Because this is a statutory cause of action, Plaintiff is required to plead all of the elements with 9 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 1 particularity. (Searcy, supra, 177 Cal.App.3d at 802.) However, Plaintiff’s allegations fall short of 2 this standard and are fatally uncertain. (See Gonzalez v. State of Cal. (1977) 68 Cal.App.3d 621, 633- 3 34 [sustaining demurrer because the court was unable to ascertain the basis for plaintiffs’ claims from 4 the Complaint].) Accordingly, this demurrer should be sustained. 5 III. DEFENDANTS LONDON BREED, PAUL MIYAMOTO AND SPECIALLY APPEARING DEFENDANTS TINA TAM, MICHAEL BOROVINA, THE SAN 6 FRANCISCO PUBLIC UTILITIES COMMISSION, JENNIFER CHOI AND COREY TEAGUE ARE INCORRECTLY NAMED AS DEFENDANTS AND SHOULD BE 7 DISMISSED. 8 Pursuant to the Court’s Order, the 14th cause of action in the Second Amended Complaint 9 must also fail because it does not explain why the City Defendants are not entitled to immunity. The 10 individually named Defendants – London Breed, Paul Miyamoto, Tina Tam, Michael Borovina, 11 Jennifer Choi, and Corey Teague – are improperly named as defendants because they are City officials 12 or City employees acting in their official capacity and protected by discretionary immunity under Gov. 13 Code, §820.2(b). The San Francisco Public Utilities Commission is improperly named defendant 14 because it is a municipal department that is not subject to suit. 15 Therefore, City Defendants London Breed, Paul Miyamoto, Tina Tam, Michael Borovina, 16 Jennifer Choi, Corey Teague, and The San Francisco Public Utilities Commission should be 17 dismissed. 18 A. All Named City Defendants Should be Dismissed as They Have Immunity for their Discretionary Acts, under Government Code Section 820.2. 19 Plaintiff’s claims against City employees must fail here as all the conduct alleged stems for 20 their official discretionary acts, part of the course and conduct of their employment. City employees’ 21 discretionary acts are afforded immunity under Gov. Code, §820.2(b): “[A] public employee is not 22 liable for an injury resulting from his act or omission where the act or omission was the result of the 23 exercise of the discretion vested in him.” The landmark case of Johnson v. State of California (1968) 24 69 Cal.2d 782, 73 explained that discretionary immunity applies to “areas of quasi-legislative policy- 25 making”, and policy-making actions receive immunity as a discretionary act. Moreover, the City and 26 County of San Francisco is not liable when its employees are afforded discretionary immunity. (“[A] 27 28 10 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 1 public entity is not liable for an injury resulting from an act or omission of an employee of the public 2 entity where the employee is immune from liability.”) Gov. Code, § 815.2. 3 Here, Plaintiff’s Complaint stems from the City’s decision to not enforce an eviction, which 4 was based on the Mayor’s eviction moratorium, a legally valid emergency enactment during the 5 COVID-19 pandemic. A Mayoral emergency enactment during a crisis – in this case, the COVID-19 6 pandemic – is a textbook example of governmental policy-making that is sufficiently sensitive 7 discretionary conduct entitled to immunity. (Cleveland v. Taft Union High School Dist. (2022) 76 8 Cal.App.5th 776, 801 (citing Johnson, supra, 69 Cal.2d at 783).) The same discretionary immunity 9 defenses apply to Sheriff Paul Miyamoto, Specially Appearing Defendants Tina Tam, Michael 10 Borovina, and The San Francisco Public Utilities Commission, all City employees or Departments that 11 were implementing the Mayoral COVID-19 policies and eviction moratorium. The government must 12 be able to make discretionary decisions and enact policies in the public interest – especially during 13 emergencies – and those discretionary actions are protected by Government Code Section 820.2. 14 1. Mayor of City & County of San Francisco, London Breed Should be Dismissed. 15 Plaintiff has named London Breed, the Mayor of San Francisco, as a defendant in this action3. 16 Based on the allegations in the Complaint, Mayor Breed’s conduct was at all times in her official 17 capacity as Mayor of San Francisco, not as an individual. (SAC at ¶ 58, 70-72, 86-171.) Plaintiffs’ 18 Complaint does not once make any allegations as to Mayor Breed’s off-duty conduct or involvement 19 in any of the events stated in her Complaint that is separate from her role as the Mayor of San 20 Francisco. Accordingly, the effect of Plaintiffs’ lawsuit is to name Mayor Breed in her official 21 capacity, which is the same as simply suing the City. Kentucky v. Graham, 473 U.S. 159, 165-166 22 (1985); see also Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010) (treating suit 23 against state officials in their official capacities as a suit against the state of California). Thus, this 24 Court should dismiss Mayor Breed as a named defendant from this action. 25 26 27 3 Plaintiffs have not served the Complaint and summons on Mayor Breed in her individual 28 capacity. 11 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 2. Sheriff Paul Miyamoto and Deputy Sheriff Michael Borovina (Specially 1 Appearing Defendants) Should be Dismissed. 2 Similarly, Paul M. Miyamoto, the City and County of San Francisco Sheriff (“Sheriff 3 Miyamoto”) and Deputy Sheriff Michael Borovina are incorrectly named as Defendants in this 4 lawsuit. In relation to her legal claims, Plaintiffs’ Complaint also does not include any allegations 5 regarding any conduct of Sheriff Miyamoto during his tenure as Sheriff, that is separate from his role 6 as the Sheriff. Plaintiff’s baseless speculation about Sheriff Miyamoto’s family (SAC ¶ 24-30, 152- 7 171 inter alia) has no bearing on Plaintiff’s claims relating to her property and the Sheriff’s policies on 8 evictions during the Covid-19 pandemic. Plaintiff states that Deputy Sheriff Borovina works at the 9 “County Sheriff building” (SAC ¶17), but does not plead any specific conduct that Deputy Borovina 10 did that is legally actionable. Thus, this Court should dismiss Sheriff Miyamoto and Deputy Sheriff 11 Michael Borovina as named Defendants from this action. 12 3. Tina Tam (Specially Appearing Defendant) Should be Dismissed. 13 Planning Department employee Tina Tam is incorrectly named as Defendants in this lawsuit. 14 Plaintiff’s allegations about a fine issued by Corey Teague and Tina Tam (SAC ¶¶ 12, 15) were in the 15 course and scope of their employment as City employees, in their official capacity. 16 Based on the conduct alleged in the SAC, Tina Tam’s alleged actions were all part of her job as 17 City employees, and thus also official acts that resulted from the exercise of the discretion vested in 18 her. Therefore, claims against Tina Tam are barred by the discretionary immunity afforded by Gov. 19 Code, §820.2(b). 20 4. Specially Appearing Defendant Deputy City Attorney Jennifer Choi Should be Dismissed. 21 Plaintiff has improperly named Specially Appearing Defendant Deputy City Attorney Jennifer 22 Choi, as a defendant in this action4. Based on the allegations in the Complaint, Specially Appearing 23 Defendant Deputy Choi’s conduct was at all times undertaken in her official capacity as a Deputy City 24 Attorney, not as an individual. (SAC ¶¶ 58, 70, 109, 114, 141, 143, 152-171, inter alia). Plaintiff’s 25 allegations against Specially Appearing Defendant Deputy City Attorney Choi center on Plaintiff’s 26 27 4 Plaintiff has not served the Complaint and summons on Jennifer Choi nor Corey Teague in 28 their individual capacities. 12 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 1 discontent that Specially Appearing Defendant Deputy Choi could not assist with “expediting the 2 process of evicting or ejecting the occupants from 609 Cambridge Street” (SAC ¶¶ 114, 141, 165). 3 Plaintiff’s allegations are not legally actionable under any of the claims she has brought, and 4 importantly, evictions and ejections are not directly implemented or administered by the City 5 Attorney’s Office or Deputy City Attorneys. Rather, the Writs of Possession are executed by the San 6 Francisco Sheriff’s Office. 7 Moreover, Plaintiffs’ Complaint does not once make any allegations as to Specially Appearing 8 Defendant Deputy Choi’s off-duty conduct or involvement in any of the events stated in her Complaint 9 that is separate from her role as an attorney for the San Francisco City Attorney’s Office. Accordingly, 10 the effect of Plaintiffs’ lawsuit is to name Specially Appearing Defendant Deputy City Attorney Choi 11 in her official capacity, which is the same as simply suing the City. Kentucky v. Graham, 473 U.S. 12 159, 165-166 (1985); see also Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010) 13 (treating suit against state officials in their official capacities as a suit against the state of California). 14 Thus, this Court should dismiss Specially Appearing Defendant Deputy City Attorney Jennifer Choi as 15 a named defendant from this action. 16 5. Specially Appearing Defendant Zoning Administrator Corey Teague be Dismissed. 17 Plaintiff has improperly named Specially Appearing Defendant Zoning Administrator Corey 18 Teague as a Defendant in this lawsuit.3 Plaintiff’s allegations about Specially Appearing Defendant 19 Corey Teague issuing a fine (SAC ¶¶ 11, 152-171) undisputedly refers to an act undertaken in the 20 course and scope of his employment as Zoning Administrator, and in his official capacity. 21 Based on the conduct alleged in the FAC, Specially Appearing Defendant Corey Teague’s 22 alleged actions were part of his job as a City employee, and thus constituted an official act that 23 resulted from the proper exercise of his official discretion. Therefore, all claims against Corey Teague 24 are barred by the discretionary immunity afforded by Gov. Code, §820.2(b). 25 6. The San Francisco Public Utilities Commission Should be Dismissed as an 26 Improperly Named Defendant. 27 The San Francisco Public Utilities Commission is not an independent public corporation and 28 does not have the power to sue or be sued. Courts have found that California municipal departments 13 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 1 are not themselves subject to suit, as they have “no separate existence and [are] incapable of either 2 suing or being sued.” Joiyah v. City & Cty. of San Francisco et al., No. CGC-18-568689 (S.F. 3 Superior Court, Sep. 20, 2020) (Order Regarding Def. Fine Arts Museums of San Francisco’s Mot. for 4 Summ. J.) (citing Talbot v. City of Pasadena (1938) 28 Cal.App.2d 271, 274)). Accordingly, the 5 effect of Plaintiffs’ lawsuit naming The San Francisco Public Utilities Commission as a defendant in 6 this action operates the same way as simply suing the City. Accordingly, The San Francisco Public 7 Utilities Commission should be dismissed, as the City and County of San Francisco is the only 8 correctly-named municipal defendant in this action. 9 IV. PLAINTIFF’S DEFECTIVE COMPLAINT CANNOT BE CURED BY AMENDMENT. 10 Plaintiff has already had two additional attempts to cure her Complaint, via the Second 11 Amended Complaint and First Amended Complaint. The demurrer should be sustained without leave 12 to amend because there is no “reasonable possibility” that Plaintiff can cure the defective Second 13 Amended Complaint. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) When the 14 facts alleged in the Complaint make it clear that no liability exists as a matter of law, leave to amend 15 should not be granted. Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436-37.) 16 Consequently, the City Defendants’ demurrer should be sustained without leave to amend. 17 V. CONCLUSION 18 Based on the legal authority presented above and the four corners of the SAC, Plaintiff’s claim 19 of conspiracy (claim No. 14) also fails to state a claim and is defectively uncertain and should be 20 dismissed. 21 Pursuant to the Court’s Order, the Second Amended Complaint does not explain why the City 22 Defendants are not subject to immunity, and as such Mayor London Breed, Sheriff Paul Miyamoto, 23 and Specially Appearing Defendants Jennifer Choi, Corey Teague, Tina Tam, Michael Borovina, and 24 The San Francisco Public Utilities Commission should be dismissed as improper defendants as they 25 have discretionary immunity for their official actions pursuant to Gov. Code §820.2(b), and any 26 attempts to sue them is the same as suing the City, which is already a defendant in this matter. 27 /// 28 /// 14 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx 1 Accordingly, the City Defendants’ demurrer to Claim No. 14 in the Second Amended 2 Complaint should be sustained without leave to amend, and Mayor London Breed, Sheriff Paul 3 Miyamoto, and Specially Appearing Defendants Jennifer Choi, Corey Teague, Tina Tam, Michael 4 Borovina, and The San Francisco Public Utilities Commission should be dismissed. 5 Dated: July 3, 2023 6 DAVID CHIU City Attorney 7 MEREDITH B. OSBORN Chief Trial Deputy 8 NATASSIA KWAN 9 Deputy City Attorney 10 By: /s/ Natassia Kwan 11 NATASSIA KWAN 12 Attorneys for Defendants City & County of San Francisco (erroneously sued as The San Francisco Public 13 Utilities Commission1), Mayor London Breed, Sheriff Paul Miyamoto, Specially Appearing Defendants2 Tina 14 Tam, Michael Borovina, Jennifer Choi and Corey Teague 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 DEFTS’ MPA ISO DEMURRER TO SAC; CASE NO. CGC-21-591803 n:\lit\li2023\210916\01685797.docx