Demurrer in JOSE VERDUSCO VS. ANDY MAR, COUNTY OF SAN MATEO| Trellis.Law

On December 07, 2007 a Motion-Secondary was filed involving a dispute between Verdusco, Jose, and County Of San Mateo, Mar, Andy, for civil in the District Court of San Mateo County.

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JOHN C. BEIERS, COUNTY COUNSEL (SBN 144282)
By: Sandra Zﬁﬁiga Nierenberg, Deputy (SBN 250881)
Hall of Justice and Records
400 County Center, 6th Floor

F I L ECOUNTY
Redwood City, CA 94063
Telephone: (650) 363-4755
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Facsimile: (650) 363-4034 SAN MATEO
E-mail: snierenberg@smcgov.org 2015
DEC 1
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Attorneys for Defendant SuiJeﬂm C m
CI .

COUNTY OF SAN MATEO
3y .

Exempt ﬁom Filing Fees per Government Code § 6103

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO

JOSE VERDUSCO, Case No. CIV537740
’

Plaintiff, DEFENDANT COUNTY OF SAN MATEO’S
REPLY TO PLAINTIFF’S OPPOSITION
vs. TO DEMURRER TO SECOND AMENDED
COMPLAINT
ANDY MAR, COUNTY OF SAN MATEO and
DOES 1-20 inclusive, Hearing
Defendants Date: December 29, 2016
Time: 9:00 am.
Dept: Law & Motion

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Case No. CIV537740
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF ’S OPPOSITIONITO DEMURRER
TO SECOND AMENDED COMPLAINT
1211150592: Pu:55=
Plaintiffs Opposition to Defendant County of San Mateo’s (“County”) Demurrer admits
Plaintiffs Second Amended Complaint’s (“SAC”) almost without exception restates the same allegations
that this Court has already found fail to state a claim against the County. Plaintiffs few new allegations
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include general statements of deputy practice that only further highlight how egregious, unusual and

outside the scope of employment Defendant Mar’s alleged conduct was, and further include a brief vague
allegation that Defendant Mar in effect disagrees with Plaintiff" 3 version of the events. Additionally,

Plaintiff attempts to create a wholly new basis for public entity liability for any harm that may befall a
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staff member or the general public based on a generic contract between the County and the Superior

Court for provision of court security services.
1o None of these new allegations address the Court’s prior ruling that Defendant Mar’s conduct was
11 clearly outside the scope of employment, such that the County cannot be held vicariously liable for

12 Plaintiffs alleged damages. Further, Plaintiff still cites no statutory or legal basis for creating a new duty
13 of care for public entities with regard to the conduct of law enforcement ofﬁcers. In fact, Plaintiff
14 completely ignores decades of prior case law with afﬁrmatively state such a duty of care does not exist.
15 Despite Plaintiffs best efforts, the SAC fails to state a single cause of action against the County because
16 Plaintiff has not pled facts, as opposed to legal conclusions, to show the County had any knowledge of or
17 involvement in Defendant Mar’s alleged conduct, that Defendant Mar’s alleged assault of his coworker

18 was a foreseeable “outgrowth” of his employment as a bailiff, or that Defendant Mar had a special
19 relationship to Plaintiff so as to create a legal duty. Each of Plaintiffs causes of action against the County
20 should be dismissed.

21 I. Court on Demurrer Can and Should Properly Consider Plaintiff’s Failure to Allege
Necessary Facts.
22
The County does not, as Plaintiff claims, allege new facts or require a judicial inference construed
23
agiainst the Plaintiff. Rather, as is wholly consistent with the cases Plaintiff cites, the County merely
24
pclints out the many relevant failings in Plaintiffs complaint, as is the clear purpose of a demurrer.
25
Plaintiffs reliance on Perez v. Golden Empire Transit District and [on Equipment Corporation v.
26
Nelson is misplaced, as both of those cases permitted the court to make reasonable inferences from
27
absent allegations but did not permit the court the construe facts that had been alleged against the
28

Case No. CIV537740 -l-
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER
TO SECOND AMENDED COMPLAINT
plaintiffs. For example, Perez considered whether plaintiff had presented a valid Government Claim.

Plaintiff alleged that the defendant’s representative called plaintiff and stated there was no date on the

claim, requesting the date. be provided. Plaintiff also alleged “Plaintiff subsequently provided the date of
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the incident to said representative . . . .” 209 Ca1.App.4th 1228, 1237-38 (5th Dist. 2012). The defendant

argued in its demurrer that this admitted both (1) that the original claim did not include the date of
I

occurrence, and (2) thus that the plaintiff did not technically present an amendment correcting the
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omission as required by Government Code section 910(c). After discussing the rule of liberal

construction in favor of the plaintiff that Plaintiff here relies upon, the Perez court nonetheless

“assume[d] that it is reasonable to infer from the allegations in paragraph 18 that plaintiff‘s initial written

10 claim did not include the datethe incident occurred. Consequently, the critical question concerns

11 inferences that should be drawn from plaintiff’s allegation that she ‘subsequently provided the date of the
12 incident to said representative, thus complying with the requirements of the government tort claims

13 statute.”’ Id. at 1238-29. In short, it is reasonable to infer facts even in favor of the defendant where the

14 allegations or lack of allegations so indicate, so long as a court construes ambiguous facts actually plead

15 in favor of the plaintiff.

16 Plaintiff’ s reliance on [on Equipment Corporation v. Nelson similarly misstates the main holding
l

17 there. In afﬁrming the trial court’s granting of general demurrers to several causes of action, the court"
18 held only that respondents could not argue estoppel on demurrer where the plaintiff’s complaint had not

19 alleged plaintiff relied upon the issue in question — in essence, respondents could not infer reliance

20 sufﬁcient to create a collateral estoppel issue where the potentially estopped matter was not even at issue.

21 Ialn Equip. Corp. v. Nelson, 110 Cal.App.3d 868, 881 (lst Dist. 1980). It in no way, as Plaintiff attempts
22 to'argue, states that a court cannot make reasonable inferences from clear factual gaps in the pleadings.

23 , Here, the County only points out clear absences in the Plaintiff’s pleadings, and does not ask the

24 Cburt to make any inferences against the Plaintiff regarding facts Plaintiff has actually. plead. Namely,

25 the County points out that Plaintiff does not allege court was in session, that Plaintiff does not allege
26 miembers of the general public were present in the courtroom when the incident occurred, that Plaintiff
27 ddes not allege he encountered any resistance or objection from Defendant Mar as he exited the

28 cciurtroom, and ﬁnally that Plaintiff does not allege Defendant Mar remained on duty beyond the day

Case No. CIV537740 -2-
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER
TO SECOND AMENDED COMPLAINT
immediately following the incident. Plaintiff further does not allege the County had any prior knowledge

of Defendant Mar’s action or Defendant Mar’s intent to act as alleged against Plaintiff, nor does Plaintiff
allege the County had any knowledge of Defendant Mar’s alleged racially-motivated personal animus
against Plaintiff, nor does Plaintiff allege the Countyundertook any acts to aid or abet Defendant Mar in

carrying out his conduct other than a wholly unsupported and conclusory boilerplate recital that.“each of

the Defendants, including Defendants CSM and MAR, was the partner, joint venture, aider and abettor,

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agent, employee and/or representative of each of the remaining Defendants and was acting at least in part
within the course and scope of said relationship.” (SACﬂ 6.) Plaintiff’s glaring gaps in the facts plead and
\O the resulting failures to state a claim remain even under Califomia’s liberal construction rules.

10 II. Plaintiff’s Allegations of Defendant Mar’s Contradictory “Beliefs” Are Impermissibly
Incompatible with Plaintiff’s Specific Allegations and Sworn Testimony.
11 Plaintiff admits that inconsistent counts may be alleged “when the pleader is in doubt as to which

12 theory most accurately reﬂects the events and can be established by the evidence,” (Opp. 5:15-17), but

13 here Plaintiff does not allege the fats are unknown to him.
14 In the cases relied upon by Plaintiff, the events had not yet come to pass or were unknown to the

15 pleader. For example, in Adams v. Paul, the court, in trying to determine when the statute of limitations
16 began to ran, analyzed when the pleader’s attorney’s malpractice caused actual damage. 11 Cal.4th 583,

17 590—593 (Cal. 1995). Understanding that “[i]n other circumstances, the actual loss of the underlying
18 remedy may remain contingent, that is, the attomey’s negligence may have created only the potential for

19 ﬁiture harm” (id. at 590), court went on to observe that a pleader in such a circumstance should ﬁle an

20 action early and, among other tools, use inconsistent allegations to address the potential scenarios yet to

21 play out to allege actual damage. (Id. at 592-592.) This case is distinguishable from the case at hand, as

22 here all of the relevant events have already occurred and Plaintiff, as a prescient witness, observed and

23 has alleged facts concerning those events.

24 Unlike in those cases, here Plaintiff has alleged extensive, speciﬁc factual detail about the events at

25 issue, of which he was a prescientlwitness. Unlike in those cases, Plaintiff does not allege he is in doubt
26 of the facts, nor that those facts are unknown to him. The only equivocation in Plaintiff’s SAC is a brief

27 reference to Defendant Mar’s conﬂicting “belief” of what occurred, but at no point does Plaintiff allege
28 Defendant Mar’s take on the matter actually occurred or could have occurred. This is understandable,

Case No. CIV537740 ‘
—3-
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF ’S OPPOSITION TO DEMURRER
TO SECOND AMENDED COMPLAINT
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given Plaintiff’ s SAC would fail to state a claim under at least his First through Fifth Causes of Action if
[\J Defendant Mar’s version of the events were afﬁrrnatively alleged. Because Plaintiff’s posited

DJ “alternative” facts are antagonistic to Plaintiff’s simultaneously and speciﬁcally plead facts, Plaintiffs

A speciﬁc detailed allegations of Defendant Mar’s racially-motivated and life-threatening actions “must be
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accepted as precluding”,this Court from construing the new single allegation of a defendant’s conﬂicting
O\ belief to uphold Plaintiff’s alternative theories. Faulkner v. Cal. Toll Bridge Authority, 40 Cal.2d 317, '

\l 328-29 (Cal. 1953) (upholding demurrer); see also B & P Dev. Corp. v. City ofSaratoga, 185

00 Cal.App.3d 949, 952-953 (61h Dist. 1986).

\O III. Defendant Mar’s Cross-Complaint Allegations Cannot Be Relied Upon to Save Plaintiff’s

iéigmurrer tests only the legal sufﬁciency of the complaint itself. When deciding a demurrer, the
court cannot consider matters outside the complaint unless properly subject to judicial notice.

Donabedian v. Mercury Ins. Co., 116 Cal.App.4th 968, 994 (2004. Here, Plaintiff argues in his

Opposition that Defendant Mar alleges in Defendant Mar’s cross-complaint that he was only “checking

and/or practicing with his ﬁrearm and holster.” (Opp. 2:08-10.) Plaintiff’ 3 Request for Judicial Notice

states he is only noticing Defendant Mar’s statements for the fact that they were made, not for the truth of

those statements. Yet in Plaintiffs Opposition, he attempts to rely on those statements as facts asserted
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as true. Plaintiff cannot rely on Defendant Mar’s allegations in the cross-complaint as “facts” upon
which his causes of action may permissibly rely. Plaintiff’ s SAC must stand on its own. Because

Plaintiff alleges only that Defendant Mar believes a separate set of facts — rather than alleging those facts
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actually occurred — and because Plaintiff is not noticing Defendant Mar’s statements made outside of the
complaint for the truth of those statements, Plaintiff cannot rely on Defendant Mar’s separate testimony

and statements of thefacts to survive demurrer.
IV. Plaintiff’s First Through Fourth Causes of Action Fail to State a Claim Against County
Because Defendant Mar’s Actions Are Clearly Not a Foreseeable Outgrowth of His
Employment Such that the County Cannot As a Matter of Law Be Vicariously Liable.

As this Court held in its order dismissing Plaintiff’ s First Amended Complaint (“FAC”) in its

entirety, dated May 26, 2016 (“Order”), [w]hatever duties a sheriff’ s deputy has when assigned as a

courtroom bailiff, it does not reasonably include, without additional factual allegations, drawing a

weapon and pointing it at a court custodian.” The Court went on to note that the F AC “contains no

Case No. CIV537740 -4-
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER
TO SECOND AMENDED COMPLAINT
allegations that Defendant Mar was engaging in any act related to his duties when the incident occurred.”

(Order 1:12-15.) Plaintiff’s SAC alleges the same facts regarding Defendant Mar’s conduct, and as such

again fails to allege facts to show that Defendant Mar was acting within the course and scope of
employment when he allegedly drew and pointed his weapon directly at Plaintiff while making racially-

charged comments threatening police brutality.

Plaintiff’s new allegations fail to bring Defendant Mar’s conduct within the scope of

employment. Plaintiff alleges that bailiffs check their equipment in the courtrooms “so long as it is safe”
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(SAC 4:11), and that checking equipment in this manner “was a common, usual occurrence that was not

criticized, reprimanded or disciplined by the [County].” (SAC 4:23-24.)

10 However, Plaintiff does not allege that Defendant Mar was either checking his equipment or

11 doing so in a safe manner. Quite the contrary, Plaintiff has alleged Defendant Mar “unholstered his duty

12 ﬁrearm and aimed it directly at Plaintiff,” with his “ﬁnger on the trigger, and the ﬁrearm [] loaded.”

13 (SAC 6:01-03.) Defendant Mar then “tracked Plaintiff by continuously pointing his ﬁrearm at Plaintiff

14 as Plaintiff ducked and moved to avoid being within the sights of the ﬁrearm.” (SAC 6:03-05.) During

15 this time, “Plaintiff pleaded with Defendant Mar,” to which Defendant Mar responded, “’You want some

16 South Carolina justice,” referring to recent events of unprovoked law enforcement shootings of minority
17 civilians.” (SAC 05-07.)

18 Plaintiff admits that his “account of the events, as alleged in the SAC, is the same as he alleged in

19 his ﬁrst amended complaint” (Opp. 3201-02), which this Court has already found are “not reasonably”

20 within the course and scope of Defendant Mar’s employment. (Order 1:13.) Because they were done

21 with racial animus unrelated to Defendant Mar’s job, these acts are similarly not “inherent in the working

22 environment” nor “as a practical matter . . . sure to occur in the conduct of the employer’s enterprise”
23 such that they as a matter of law must be outside the course and scope of employment. (Order 1:18-22

24 (quoting Lisa M. v. Henry Mayo Newhall Mem 7 Hosp. (1995) 12 Cal.4th 291, 298-300; Farmers Ins.

25 Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003-04).) Despite Plaintiff’s additional

26 allegations describing bailiff’s general checking of their equipment “so long as it is safe,” clearly
27 Plaintiff’s allegations regarding Defendant Mar’s conduct could not reasonably be construed as

28 “checking equipment” nor doing so in a safe manner. Cf Scruggs v. Haynes, 252 Cal.App.2d 256 (1967)

Case No. CIV537740 -5-
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER
TO SECOND AMENDED COMPLAINT
(ofﬁcer maliciously battered plaintiff in course of trafﬁc stop).

Alleging that Defendant Mar believes the events occurred different, without directly alleging that

theory of events, does not constitute alternative facts on which Plaintiff can rely. According to Plaintiff’s
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unchanged direct and unequivocal allegations, Defendant Mar’s conduct was as a matter of law outside
the course and scope of his employment as a bailiff. The SAC cannot support a ﬁnding of vicarious
liability against the County for Plaintiffs ﬁrst through ﬁfth causes of action, and must be dismissed.
Plaintiff’s Fourth Cause of Action for Negligent Infliction of Emotional Distress Fails
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V.
BecauSe Plaintiff Fails Allege Necessary Facts to State a Claim.
Plaintiff’s fourth cause of action for negligent inﬂiction of emotional distress, imputing vicarious

liability against the County, fails to state a claim because Plaintiff fails to allege facts sufﬁcient to state

10 the cause of action. GA. William S. Hart Union High School Dist, 53 Cal.4‘h 861, 872 (Cal. 2012). A
11 negligence action brought by a direct victim requires pleading a duty imposed by law, assumed by the

12 defendant, or arising from a preexisting relationship. See Wooden v. Raveling, 61 Cal.App.4th 1036,

13 1040 (2d Dist. 1998); see also Burgess v. Superior Court, 2 Cal.4th 1064, 1073 (Cal. 1992) (defendant

14 obstetrician owed duty to plaintiff mother based on preexisting doctor-patient relationship). Plaintiff

15 does not allege that County employees had a duty to Plaintiff as a matter of law, nor does Plaintiff allege
16 he had a preexisting relationship with the County employees who allegedly assured him that Defendant

17 Mar would not be in the courthouse on April 14, 2015. Plaintiff can thus only state a claim if he has
18 alleged facts which demonstrate County employees assumed a duty of care to Plaintiff, which Plaintiff
19 has failed to do.

20 Plaintiff alleges that on April 13, 2015, Sheriff’s Lieutenant Jones and Sergeant Earles told Court

21 employee Ron Mortenson that Defendant Mar “would be immediately reassigned so that he would not be

22 present in the courts.” (SAC 11 18.) Plaintiff separately alleges he was assured by some unidentiﬁed
23 person that Defendant Mar “would not be present in the courthouse.” (Id.) This distinction is important:

24 Plaintiff at no point alleges that he ever spoke to a County employee on April 13, 2015 subsequent to the

25 immediate aftermath of the incident, nor that any County employee, named or unnamed, ever told
26 Plaintiff that Defendant Mar would not be present on the premises of 400 County Center. (See id.)

27 Plaintiff has thus failed to allege the County assumed any duty to Plaintiff regarding representations of
28 where Defendant Mar may be on April 14, 2016. Further, Plaintiff also does not allege that Defendant

Case No. CIV537740 -6-
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER
TO SECOND AMENDED COMPLAINT
Mar was present at any point in the courts on April 14, 2016, but rather only alleges that Plaintiff saw

Defendant Mar in a public café. (See id. 1] 23.) Plaintiff also therefore fails to allege that any statement
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made by County employees was incorrect, and thus that any County employees breached any arguable

duty. Because Plaintiff fails to allege essential facts necessary to plead a claim for negligent inﬂiction of
emotional distress, Plaintiffs fourth cause of action against the County must be dismissed.

VI. Plaintiff’s Fifth Cause of Action Fails Because Plaintiff Still Fails to Allege Any Facts
Showing County Aided, Incited or Conspired in Denial of Plaintiff’s Civil Rights.
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As argued extensively in the County’s demurrer to Plaintiff s First Amended Complaint, and again in the

County’s demurrer to the SAC, Plaintiffs ﬁfth cause of action asserting a Ralph Act Civil Rights
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violation against the County fails to state a claim because Plaintiff has not plead a single fact regarding
10
County knowledge of or involvement in Defendant Mar’s alleged conduct on April 13, 2015. Plaintiff
11
argues that employers generally may be liable for Ralph Act violations of their employees, and also that
12
Plaintiff did allege facts showing the County aided, incited, or conspired in the denial of Plaintiffs civil
13
rights. (See Pl.’s Opp. 7:10-8:05.). Plaintiff’s arguments are unavailing on both counts. Without
14
repeating in detail the extensive argument already presented on these points, Plaintiffs reliance on
15
Prowd v. Gore, 57 Cal. App. 458 (1922), is misplaced because that nearly century-old case does not take
16
into account twenty separate amendments to Civil Code section 52, and further directly contradicts the
17
express, unambiguous language of the statute assigning liability under Civil Code section 51.7 only to
18
persons who either directly deny the right or aids, incites, or conspires in that denial. Civ. C. 52(b).
19
Plaintiffs reliance on Los Angeles County Metropolitan Transportation Authority v. Superior Court is
20
similarly misplaced, as that case does not hold that a Ralph Civil Rights cause of action can be
21
maintained against a public entity where the plaintiff fails to plead facts against the public entity. Rather,
22
that case solely examines whether a public entity might at any point be liable for civil damages under the
23
act, without looking determine whether the public entity there actually was liable. See Los Angeles
24
Cdunty Metropolitan Transp. Auth. v. Superior Court, 123 Cal.App.4th 261 (2nd Dist. 2004).
25
Additionally, Plaintiff does not allege a single fact showing the County directly acted violently
26
towards Plaintiff or threatened Violence against Plaintiff based on Plaintiffs race, nor does Plaintiff
27
allege a single actual fact showing the County or any of its employees undertook any actions to conspire
28

Case No. CIV537740 -7-
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF ’S OPPOSITION TO DEMURRER
TO SECOND AMENDED COMPLAINT
with Defendant Mar or otherwise aid or abet Mar in the commission of his alleged violent or threatening

conduct against Plaintiff. Because Plaintiff failed to allege even a single fact upon which County

participation in Mar’s conduct can be inferred, Plaintiff’s ﬁfth cause of action as against the County for a
‘

4> Ralph Act violation must be dismissed.
U1
VII. Plaintiff’s Sixth Cause of Action for Negligent Hiring, Training and Supervision Fails to
State a Claim Because Plaintiff Admits No'Statutory Basis Exists and Generalized Contract
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to Provide Court Security is Insufficient to Create a Special Relationship.

Plaintiff’s sixth cause of action alleges a direct claim against the County for allegedly negligent
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behavior of County employees. Despite two amendments to his complaint, Plaintiff is still unable to cite
\O any statutory or legal basis for creating a new duty of care for public entities with regard to the conduct
10 of law enforcement ofﬁcers, as is necessary to state a claim against the County.
11 As the Supreme Court has noted, “a public entity may be liable for an injury directly as a result of its

12 own conduct or omission, rather than through the doctrine of respondeat superior, but only ‘as.. . . _

13 provided by statute.” Zelig v. County of Los Angeles, 27 Cal.4th 1112, 11131 (Cal. 2002) (quoting Gov.

14 Code § 815) (emphasis original). Plaintiff admits that there is no statutory basis for his sixth cause of
15 action, and thus is left grasping at straws to fabricate a novellegal basis. The SAC fails to allege facts

16 demonstrating a special relationship exists, as required by the Court’s prior Order, and as a result

17 Plaintiff’s sixth cause of action against the County should be dismissed without leave to amend.

18 Plaintiff’ s argument in support of his sixth cause of action is virtual duplicate of his earlier

19 unsuccessﬁil argument. As before, Plaintiff admits that “there is generally no special relationship

20 between a police agency and litigants in a courthouse such that a duty is imposed to protect a member of
21 the public from the criminal activities of another civilian” (Pl.’s Opp. to County’s Demurrer to FAC
22 8:25-9:01 (citing Zelig v. County ofLos Angeles, 27 Cal.4th 1112 (Cal. 2002)), yet summarily dismisses

23 extensive prior case law holding such a duty of care does not exist. Importantly, the Supreme Court of
24 California in Zelz'g analyzed a substantially similar claim of a special relationship as Plaintiff is
25 attempting to create here: namely, “that thecounty, rather than any individual employee standing in a

26 special relationship with [plaintiff], owed a duty to all persons using the courthouse to protect them
27 against reasonably foreseeable criminal activity by other persons using the courthouse- specially, against

28 the risk of harm presented by deadly weapons.” Zelz'g, 27 Cal.4th at 1130 (emphasis original). The Court

Case No. CIV537740 ~8-
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER
TO SECOND AMENDED COMPLAINT
rejected plaintiff’ s argument, expressly ﬁnding:

“[E]ven in situations in which the voluntary act of [an ofﬁcer] has caused
the individual ofﬁcer to have a special relationship with (and duty of care

J}.

i
toward) a particular plaintiff and in which a breach of this duty may
impose liability on the employer under the doctrine of respondeat superior,
the entire law enforcement agency not placed in a special
relationship with the plaintiff or the public generally. Rather, the
county, ‘as with all public entities,’ has the responsibility to ‘exercise
reasonable care to protect all of its citizens,’ but does not thereby become
\OOO\10\U‘1
liable to each individual for all foreseeable harm.”

Id. at 1130-31 (citations omitted). While an officer’s conduct may impose liability on the employer

under held that. Thus, Zelig expressly rejected the notion that a special relationship exists between the

1o
County and Plaintiff that can create liability under a theory of negligent hiring, training, supervision and
retention.
11

As before, Plainiff continues to stubbomly and exclusively rely on CA. v. William S. Hart Union
12
High School District (“William S. Hart”), a case involving the unique in loco parentis relationship that
13

schools have to their students. 53 Cal.4th 861 (Cal. 2012). First, Plaintiff makes the same specious
14

arguments he made in his Opposition to the FAC that William S. Hart was decided after Munoz v. City of
15

16
Union City, and thereby implies that William S. Hart overrules Munoz. As previously noted in the
County’s reply in support of its demurrer to the PAC, William S. Hart speciﬁcally reviewed and afﬁrmed
17

18
the holding in Munoz, afﬁrming that “[a]s no statute made a public entity liable for [unreasonable use of
deadly force], no direct liability could be established under section 815 . . .” William S. Hart, 53 Ca1.4th
19

20
at 874. “[W]hile respondents [were] correct insofar as they state public entities always act through
individuals, that does not convert a claim for direct negligence into one based on Vicarious liability. . . .
21
To accept respondents’ argument would render the distinction between direct and Vicarious liability
22
completely illusory in all casesexcept where the employer in an individual.” Id. (quoting Munoz, 120
23
Cal.App.4th 1077, 1113 (lst Dist. 2004)).
24

25
VIII. Plaintiff’s Complaint Should Be Dismissed Without Leave to Amend Because Defects
26
Cannot Be Cured By Amendment.

A demurrer should be sustained without leave to amend where, as here, there is no reasonable
27
possibility the defect can be cured by amendment. “The burden of proving such reasonable possibility is
28

Case No. CIV537740 -9—
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER
TO SECOND AMENDED COMPLAINT
squarely on the plaintiff.” Blank v. Kirwan, 39 Cal.3d 311, 318 (Cal. 1985). Plaintiff explicitly alleges

facts are mutually exclusive to facts necessary to state a claim against the County under any cause of
action, and Plaintiff has not argued that additional facts exist which could be plead upon amendment.

Thus, Plaintiff cannot reasonably cure the defects by amendment, nor has he met any level of burden to
prove he could do so. As a result, the County’s demurrer should be granted as to all causes of action
without leave to amend.

IX. CONCLUSION

For the foregoing reasons, the County of San Mateo respectfully requests that the Court sustain its
demurrer to Plaintiff’ 3 Second Amended Complaint, and dismiss without leave to amend all causes of

W
10 action against the County.

11 Dated: December 21, 2016 '
Respectfully submitted,

12 JOHN C. BEIERS, COUNTY COUNSEL
13

14
By:
15
/Sandr//aZI'1ﬁiga ere berg, Deputy

16 Attorneys for Defen
COUNTY OF SA M ED
17

Case No. CIV537740 -10-
DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER
TO SECOND AMENDED COMPLAINT
PROOF OF SERVICE

I do hereby declare that I am a citizen of the United States employed in the County of San
Mateo, over 18 years old and that my business address is 400 County Center, Redwood City, California.
I am not a party to the within action.

On December 21, 2016, I served the following document(s):

DEFENDANT COUNTY OF SAN MATEO’S REPLY TO PLAINTIFF’S OPPOSITION
OO\]O\kII-I>~UJN

TO DEMURRER TO SECOND AMENDED COMPLAINT

on all other parties to this action by placing a true copy of said document(s) in a sealed envelope in the
following manner:

KC
(BY US. MAIL) by placing a true copy of said document(s) in a sealed envelope(s) addressed as
shown below for collection and mailing at Redwood City, California following our ordinary
10 business practices. I am readily familiar with this ofﬁce’s practice for collecting and processing
correspondence for mailing. On the same day that correspondence is placed for collection and
11 mailing, it is deposited in the ordinary course of business with the United States Postal Service in a
sealed envelope with postage fully prepaid.
12
(BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an agreement of
13 the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent
to the persons at the e—mail address shown below. I did not receive, within a reasonable time after
14 the transmission, any electronic message or other indication that the transmission was unsuccessful.

15 (STATE) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
16

18 SU IDRA WARAN
19 Verdusco, Jose v. Any Mar, County ofSan Mateo, et a]. — CIV537740
20 SERVICE LIST ATTACHED
21 NAME AND ADDRESS OF EACH PERSON TO WHOM SERVICE WAS MADE
22 Todd P. Emanuel (SBN 169301) David P. Mastagni (SBN 57721)
Pamela E. Glazner (SBN 247707) Phillip R. A. Mastagni (SBN 238254)
23 Emanuel Law Group Grant A. Winter (SBN 266329)
702 Marshall St., Suite 400 MASTAGNI HOLSTEDT, APC
24 Redwood City, CA 94063 1912 I Street
Telephone: (650) 369-8900 Sacramento, CA 95811
25 Facsimile: (650) 369-4228 Telephone: (916) 446-4692
E-mail: todd@teinj urylaw.com Facsimile: (916) 447-4614
26 Attorneys for Plaintiff Jose Verdusco E-mail: gwinter@mastagni.com
Attorneys for Defendant/Cross-Complainant,
27 Andv Mar

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Case Info

Judge

Robert D. Foiles Track Judge’s New Case

Case No.

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Document Filed Date

December 21, 2016

Case Filing Date

December 07, 2007

County

Parties

COUNTY OF SAN MATEO Cross Defendant (participant)
COUNTY OF SAN MATEO Defendant
EMANUEL, TODD P. Attorney for the Plaintiff
JOHN C. BEIERS Attorneys for Defendants
JOHN C. BEIERS Attorney for the Defendant
MAR, ANDY Cross Complainant (participant)
MAR, ANDY Defendant
ROES 1-100, INCLUSIVE Cross Defendant (participant)
VERDUSCO, JOSE Plaintiff
WINTER, GRANT A Attorney
WINTER, GRANT A Attorney for the Defendant
Pamela Glazner Attorneys for Plaintiffs
Phillip Mastagni Attorneys for Defendants
Karen Rosenthal Attorneys for Defendants
Sandra Nierenberg Attorney
Deshawn Madha Attorney
Joshua Bentley Attorney
Brooks Cutter Attorneys for Plaintiffs
Jennifer Domer Attorneys for Plaintiffs
David Hughes Attorney

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Motion-Secondary: JOSE VERDUSCO VS. ANDY MAR, COUNTY OF SAN MATEO

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Case Info

Parties