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FILED

Vincent P. Hurley #111215


Ryan M. Thompson #292281
LAW OFFICES OF VINCENT P. HURLEY
A Professional Corporation
28 Sea~cape Village
Aptos, California 95003
Telephone: (831) 661-4800
Facsimile: (831) 661-4804

SEP 2 8 2015
TERESA A. RISI
t lERK OF THE SUPERIOR COURT
' CUMMlNGS
DEPUTY

Attorneys for Defendants


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

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MONTEREY

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JENNIFER DA SILVA,

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Plaintiff,

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vs.

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CITY OF CARMEL-BY-THE-SEA;
LUKE E. POWELL, individually and in
15 . his official capacity as a Police Officer
for the CITY OF CARMEL-BY-THE16 SEA; COUNTY OF MONTEREY;
MONTEREY COUNTY SHERIFF'S
17 OFFICE, and DOES 1 through 50,
inclusive,
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Defendants.
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Case No. Ml32929

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MEMORANDUM OF POINTS AND


AUTHORITIES IN SUPPORT OF
DEMURRER OF DEFENDANTS
CITY OF CARMEL-BY-THE-SEA
AND SERGEANT LUKE E. POWELL
TO COMPLAINT OF PLAINTIFF
JENNIFER DA SILVA .
Date: October 30, 2015
Time: 9:00 a.m.
Dept.: 14
Date action filed: August 7, 2015

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

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

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Plaintiff JENNIFER DA SILVA on August 7, 2015.

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STATEMENT 0~.-FACT_S ANQ..P..~OC..]:J!!JRE

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Plaintiff alleges that on August 7, 2013, she incurred damages for injuries she sustained
as a result of City of Carmel-By-The-Sea Police Department Sergeant Luke Powell's alleged

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P&A ISO City of Cannel and Sgt. Powell's Demurrer

Case No. M 132929

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

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

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

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

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

p. 8,, 33. After denials by the City of Carmel-by-the-Sea of both Plaintiff's government claim

and Plaintiffs subsequent Application for Leave to File Late Claim, Plaintiff filed a Petition for

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

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

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

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Exhibit B (hereafter "Exh. B").

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

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

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Kreeft. RJN No.4, Exhibit D.

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

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

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

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U.S.C. section 1983); Compl. p. 111M[ 46-52 (Second Cause of Action for False Imprisonment);

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

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Cause of Action for Intentional Infliction of Emotional Distress); Compl. p. 18, ~1 88-92

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(Seventh Cause of Action for Negligence).

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

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

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

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

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the corresponding case number pertaining to the underlying incident was "M129420." Plaintiffs

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Complaint, wherein she is named as Jennifer DaSilva," is designated case number "Ml32929."

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P&A lSO City of Carmel and Sgt. Powelrs Demurrer

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II.

LEGAL ARGUMENT

A.

When any ground for objection to the complaint appears on the face of the pleading, or

Standard ofReview.

5 from any matter of which the court may take judicial notice of, the objection on that ground may
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be taken by a demurrer to the pleading. Cal. Code Civ. Proc. 430.30(a). Indeed, where the

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

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

(2011).
In reviewing the sufficiency of the complaint against a demurrer, the Court will take aU

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

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

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

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

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

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

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

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granted. Hendy v. Losse, 54 Cal.3d 7'23, 742 (1991); Goodman v. Kennedy, 18 Ca1.3d 335

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(1976).

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. B.

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

Government Code section 946.6(!1

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

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petitioner from Section 945 .4, suit on the cause of action to which the claim relates shall be filed

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

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

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relieffrom the claims presentation requirement. Mandjikv. Eden Township Hospital Dist., 4

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

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P&A ISO City o f Cannel and Sgt. Powell's Demurrer

Case No. M132929

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

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

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

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

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

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

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

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

Accordingly, Plaintiff's state law causes of action, specifically Plaintifrs Second Cause

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

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

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time-barred.

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C.

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

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

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

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

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

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

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

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

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III.

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~ON(;J,..USI_Q.N

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For the reasons set forth above, Defendants City of Carmel-by-the-Sea and Sergeant

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Luke E. Powell respectfully request the Court sustain Defendants' demurrer to Plaintifrs

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Complaint without leave to amend as to the Second Cause of Action for False Imprisonment, the

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P&A ISO City of Catm el and Sgt. Powell's Demurrer

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

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

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Dated: September

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

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P&A ISO City of Carmel and Sgt. Powell's Demurrer

Case No. M 132929