Filed 2/13/14 Hedges v. City of Los Angeles CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

MARK HEDGES,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES,

Defendant and Respondent. B240475

(Los Angeles County Super. Ct. No. EC056010)

APPEAL from a judgment of the Su perior Court of Los Angeles County. David S. Milton, Judge. Reversed and remanded.

Mark Hedges, in pro. per., for Plaintiff and Appellant.

Mike Feuer, City Attorney, Kjehl T. Johansen, Deputy C ity Attorney, for Defendant and Respondent.

________________ __________________ _________________2 Plaintiff and appellant, Mark Hedges, su ed defendant and respondent the City of Los Angeles for damages after he was detained pursuant to Welfare and Institutions Code

sections 5150 1 and 5250. 2 Respondent’s demurrer was sustained without leave to amend, with the trial court finding that appellant’s failure to comply with the Government Tort Claims Act (Gov. Code, § 900, et seq.) barred all of his causes of action. Because we find that appellant has demonstrated a reas onable possibility of amending his complaint to allege an action under 42 United States Co de section 1983 (section 1983), we reverse the judgment.

1 Welfare and Institutions Code section 5150 provides: “Whe n any person, as a result of mental disorder, is a danger to ot hers, or to himself or herself, or gravely disabled, a peace officer, member of the atte nding staff, as defined by regulation, of an evaluation facility designated by the county, designated member s of a mobile crisis team provided by Section 5651.7, or other profe ssional person designated by the county may, upon probable cause, take, or cause to be take n, the person into custody and place him or her in a facility designated by the county and approved by the State De partment of Social Services as a facility for 72-ho ur treatment and evaluation. [¶] The facility shall require an application in writing stating the circ umstances under which the person’s condition was called to the attention of the officer, me mber of the attending staff, or professional person, and stating that the officer, member of the attending staff, or professional person has probable cause to believe that the person is , as a result of mental disorder, a danger to others, or to himself or hersel f, or gravely disabled. If the pr obable cause is based on the statement of a person other than the officer, member of the attending staff, or professional person, the person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false.”

2 Welfare and Institutions Code section 5250 provides, in relevant part: “If a person is detained for 72 hours . . . and has received an evaluation, he or she may be certified for not more than 14 days of intensive treatment related to the mental di sorder . . . under the following conditions: [¶] (a) The professional staff of the agency or facility providing evaluation services has analyzed the person’s condition and has found the person is, as a result of mental disorder . . . a danger to ot hers, or to himself or herself, or gravely disabled.”3 BACKGROUND Allegations Hedges filed suit against the Los An geles Police Department (the City), Los Angeles County Department of Mental Health (the County), and Marcy Gray Rubin on June 9, 2011. The relevant pleading, Hedges’ First Amended Complaint (FAC), was filed on June 10, 2011. Because this app eal comes to us after a demurrer sustained without leave to amend, for purposes of review we assume that the allegations are true. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The first page of the FAC alleges that Hedges attended therapy with Rubin, a licensed marriage and family th erapist, from March 2010 to June 2010. Rubin tricked Hedges into telling her “secret stuff.” The s econd page of the FAC appears to be missing from the record. Reading the FA C in conjunction with the orig inal complaint, we discern that Hedges further alleges that when he realized he was tric ked by Rubin he fired her. According to Hedges’ compla int, he had reported concerns of criminal activity to authorities, mentioning apparently staged suicides of notabl e political activists. Around this time, he sent a text message to his sister telling her that he would never hurt himself, and that if anyone found him d ead, it would be because of a mu rder staged to look like a suicide. Hedges’ sister called Rubin to discuss the content of the message. On June 10, 2010, Rubin called the depart ment of mental health, which in turn called the police department. The police depa rtment searched Hedges’ text messages and incorrectly recorded the cont ent of the text message to his sister—writing that Hedges

had threatened his own life rath er than warning his sister th at any apparent suicide would be staged. The police department then dete rmined that Hedges was at a laundromat and

sent a marked car with uniformed officer s to handcuff him. Hedges demanded an attorney but was not granted one. The FAC states that Hedges was transporte d to a mental health facility, where the staff psychiatrist told him that he was delu sional and threatened him with incompetency and permanent incarceration. To appease th e psychiatrist, Hedges took medication that the psychiatrist prescribed, ev en though it violated Hedges’ re ligious beliefs. Because of4 Hedges’ disapproval of the medication, as we ll as his challenges to probable cause for detainment, the psychiatrist labeled him “‘paranoid’” and “‘not aware of a mental

disorder.’” According to the FAC, He dges suffered severe emotional distress and mental anguish. Further, during his internment, he was hit over the head with a steel bar by a painter. Moreover, during the confinement, his elderly cat became severely dehydrated, leading to her eventual death. Hedges also missed wages by being unable to work at his normal job as a computer programmer. Hedges alleges that on June 17, 2010, th e superior court clarified that his text message to his sister did not indicate an inte nt to harm himself and ruled that his rights had been denied without probable cause. He dges further states that defendants did not have probable cause to detain him or decl are him incompetent, a nd that their actions constituted false arrest. Hedges’ FAC states, in list format, a litany of violations for

which he believes defendants are liable. Procedural Background The City filed a demurrer to the first amended complaint in August 2011. It argued that the FAC did not state facts suffici ent to constitute a cause of action and that Hedges failed to comply with the claims statutes of th e Government Tort Claims Act. Hedges’ FAC did not allege fact s showing that, prior to filing his lawsuit, he timely filed a claim for money or damages wi th the City, or that such a filing was excused. The City further relied on a declaration stating that He dges had failed to file a claim or petition to file an untimely claim. Hedges did not file an opposition to the demurrer. At the hearing in October 2011, Hedges argued that he could avoid the Government Tort Claims Act’s requirements by pleading a cause of action pursuant to section 1983. The trial court initially indicated an intent to sustain the City’s demurrer but grant leave to amend. After the City argued that Hedges was unable to plead ar ound the Government Tort Claims Act, however, the trial

court decided to sustain the demurrer without leave to amend.5 DISCUSSION Hedges appealed from the order sustai ning the demurrer without leave to amend. 3 Such an order is not appealable. ( Zipperer v. Count y of Santa Clara (2005) 133 Cal.App.4th 1013, 1019.) In th e interest of judicial economy, however, we will treat the order as incorporating a judgment of dismissal and decide the appeal on the merits. (See

ibid. ) We review the ruling sustaining the demurrer de novo, exercising independent judgment regarding whether the complaint states a cause of action as a matter of law. ( Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 11 10, 1115.) We give the complaint a reasonable interpreta tion, treating the demurrer as admitting all material facts properly pleaded, but not assuming the truth of contentions , deductions or conclusions of law. ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) A demurrer tests the legal sufficiency of the complaint. ( Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) As such, we are not concerned with the difficu lties a plaintiff may have in proving the claims made in the complaint. ( Desai , at p. 1115.) We are also unconcerned with the trial court’s reasons for sustaining the demurrer, as it is the ruling, not the reasoning, that is reviewable. ( Sackett v. Wyatt (1973) 32 Cal.App.3d 592, 598, fn. 2.)

When a demurrer is sustaine d without leave to amend, “w e decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial

court has abused its discretion and we reve rse; if not, there has been no abuse of

3 Hedges also attempted to appeal from proceedings relating to Rubin. Rubin was dismissed with prejudice from the case on Octobe r 13, 2011, with the trial court, pursuant to stipulation, retaining jurisdiction to entert ain a motion to seal portions of the record. On January 6, 2012, the trial court was sche duled to hear a motion to seal, among other things. Before it could rule, however, it rece ived a document file d by Hedges that the trial court interpreted as a request for recusa l, and the court took the motion to seal off calendar. On August 2, 2012, this Court issued an order concluding that the January 6, 2012, hearing was not appealable because “a n order taking a matter off calendar is not a final order within the meaning of Code of Civil Procedure § 904.1(a)(2).”6 discretion and we affirm. [C itations.] The burde n of proving such re asonable possibility is squarely on the plaintiff. [Citation.]” ( Blank v. Kirwan

, supra , 39 Cal.3d at p. 318.) Hedges’ FAC only contained state law causes of action. These causes of action were properly disposed of by demurrer because Hedges failed to comply with the

Government Tort Claims Act. The Govern ment Tort Claims Act “establishes certain conditions precedent to the filing of a lawsuit against a public entity.” ( State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237 .) It requires a plaintiff seeking money or damages from a public entity to timely present a claim to the entity before filing suit. ( Id . at p. 1239.) A complaint that fails to allege facts demonstrating or excusing compliance w ith the claim presentation requirem ent is subject to demurrer for

failure to state facts sufficient to constitute a cause of action. ( Id. at p. 1243.) These requirements have been held to comply with due process. ( Id. at p. 1245.) Hedges did not allege that he complied with the claim presentation requirement or was excused from doing so. For this reason, the demurrer was properly sustained. Nevertheless, at oral argum ent in the trial court, and on appeal, Hedges identified a claim that he may be able to adequately a llege. The Government Tort Claims Act claim presentation requirement does not apply to a cause of action brought pursuant to section 1983. ( State of California v. Superior Court, supra, 32 Cal.4th at p. 1240.) The primary purposes of section 1983 are “compensation a nd deterrence ‘for violations of federal rights committed by persons acting u nder color of state law.’” ( Pitts v. County of Kern (1998) 17 Cal.4th 340, 348.) Local governme nts, such as the C ity, are “persons” for purposes of section 1983 and can, in appropri ate circumstances, be sued directly for monetary, declaratory, or injunctive relief. ( Id. at p. 348-349.) Hedges’ FAC alleges, among other things, th at the City’s police officers violated his rights. As the City points out, “a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” ( Monell v. New York City Dept. of Social

Services (1978) 436 U.S. 658, 691.) A municipa lity can be liable, though, where “the action that is alleged to be unconstitutional implements or executes a policy statement,7 ordinance, regulation, or de cision officially adopted and promulgated by that body’s officers. Moreover, . . . local governme nts . . . may be sued for constitutional deprivations visited pursuant to governmenta l ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” ( Id. at pp. 690-691.) “[I]t is wh en execution of a government ’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the in jury that the government as an entity is responsible under § 1983.” ( Id. at p. 694.) In order for a municipality to be liable under section 1983, it must act with a requisite degree of culpability and there must be a direct causal link between the municipal action and the deprivation of the plain tiff’s federal rights. ( Board of Comm’rs of Bryan Cty. v. Brown (1997) 520 U.S. 397, 404.) The FAC does not adequately allege a ca use of action based on section 1983. We find, however, that Hedges has demonstrated a reasonable possibility that he can cure the defects in his complaint by alleging a sec tion 1983 cause of action that meets the applicable pleading requirements. Therefore, Hedges should be a llowed the opportunity to file a further amended complaint.

DISPOSITION We deem the order sustaining the City’s demurrer without leave to amend to have incorporated a judgment of dismissal. The j udgment is reversed and, on remand, the trial court is directed to grant Hedges le ave to file an amended complaint. Following remittitur, the Pr esiding Judge of the Los A ngeles Superior Court shall assign the case to a different trial judge fo r further proceedings. (Code Civ. Proc., § 170.1, subd. (c).) Hedges is awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J. CHAVEZ, J.