Michelman v. City of Los Angeles

Decision Date07 July 2022
Docket NumberB311658
PartiesRYAN MICHELMAN, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals


APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCV45379 Maureen Duffy-Lewis, Judge. Affirmed.

Ryan Michelman, in pro. per, for Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Scott Marcus, Chief Assistant City Attorney, Blithe S. Bock, Assistant City Attorney, and Sara Ugaz, Deputy City Attorney, for Defendants and Respondents.


* * * * * *

Ryan Michelman (plaintiff) sued the City of Los Angeles (the City) and two of its employees for not properly investigating and prosecuting the person who assaulted him. The trial court dismissed plaintiff's lawsuit. This was correct, so we affirm.

I. Facts[1]
A. The underlying assault

In 2017, plaintiff was an Uber driver. Plaintiff had immigrated to the United States from Asia.

On October 2, 2017, plaintiff picked up a passenger who appeared to be of Korean descent and who used the name "Maverick." After plaintiff refused to use the passenger's preferred route to his destination, the passenger started hitting the back of plaintiff's head with his fist and, when plaintiff turned his head, landed a blow near plaintiff's right eye and broke plaintiff's sunglasses. When plaintiff called 911, the passenger hopped out of the car and fled on foot.

B. Investigation and nonprosecution of passenger

Two Los Angeles Police Department (LAPD) officers responded to plaintiff's 911 call. The officers interviewed plaintiff about the incident, documented plaintiff's injuries, and obtained from plaintiff the destination address the passenger had provided for his Uber ride.

In January 2018, the LAPD detective assigned to the incident, Fernando Pantoja (Pantoja), asked plaintiff to come down to the police station to see if plaintiff could identify his assailant. Plaintiff elected not to show up as agreed, but later showed up on another date. Although Pantoja put a photograph of the person whose name plaintiff provided from the Uber records into a six- or eight-person photospread, plaintiff said his assailant was not in the photospread. Plaintiff spoke with Pantoja afterwards, and from that conversation came to the conclusion that "obviously no charges will ever be filed."

The City Attorney did not prosecute anyone for the assault.

C. Nonpresentation of a claim to the City

On May 9, 2019, plaintiff wrote a letter to the Los Angeles City Attorney, Michael Feuer (Feuer), complaining about the City's failure to prosecute the person whose information he had provided from the Uber records and expressing plaintiff's intent to sue the City.

Plaintiff did not present a claim to the City through its established claims presentation procedure before filing his lawsuit.

II. Procedural Background
A. Pleadings

On December 19, 2019, plaintiff sued the City, the Los Angeles City Attorney's Office, the LAPD, as well as Feuer and Pantoja in their individual capacities (collectively, defendants).

The complaint alleges that the investigation was defective for several reasons. Pantoja did not use the proper procedures to obtain information from Uber about the passenger. Pantoja was also wrong to ask plaintiff to identify his assailant from a photospread because the information eventually obtained from Uber was, in plaintiff's view, sufficient by itself to file charges. And even if a photospread was an appropriate investigative technique, the photospread was either (1) misleading, because the passenger's photo was not in the photospread, or (2) unfair, because the passenger's photo was in the photospread but the photos were all too old and did not fill all six or eight slots with persons of Korean descent.

The complaint alleges 12 separate claims, but they fall into two broad categories.

The first category consists of the nine claims that are based on defendants' failure to properly investigate and to file charges. Plaintiff alleges that these failures were due to "willful sabotage" (first claim), "favoritism" (third claim), "corruption and/or bribery" (fourth claim), a "conspiracy" (fifth claim), "collusion" (sixth claim), "fraud" (seventh claim), a "breach of fiduciary duty" as "public officials" (eighth claim), and "bad faith" (ninth claim)- and that defendants' failure to fess up to their ulterior motives "deceived" plaintiff (second claim). Specifically, plaintiff alleges that Pantoja "deliberate[ly] . . . sabotage[d] the investigation," either because he was bribed or because Uber was pressuring the LAPD not to proceed to avoid any resulting bad press.

The second category consists of the remaining three claims, which characterize defendants' failure to properly investigate and prosecute as constituting "discrimination" (tenth claim), a "violation of [plaintiff's] civil rights" (eleventh claim), and the "denial of equal protection" (twelfth claim). To support this subset of claims, plaintiff alternatively alleges that defendants (1) discriminate against immigrants (like plaintiff) who are victims of crime, but discriminate in favor of immigrants (like the passenger) who perpetrate crimes, (2) discriminate against Uber drivers but discriminate in favor of Uber passengers, and (3) discriminate in favor of persons of Korean descent generally.

Plaintiff seeks an injunction suspending Pantoja and Feuer from their positions, general and specific damages, punitive damages, and attorney fees.

B. Demurrer

The City, Pantoja, and Feuer filed a demurrer to the complaint.[2] After further briefing and a hearing, the trial court sustained the demurrer without leave to amend, dismissed plaintiff's lawsuit without prejudice, and entered judgment for the City, Pantoja, and Feuer.[3]

Plaintiff filed this timely appeal.


Plaintiff argues that the trial court erred in sustaining the demurrer to his complaint without leave to amend.

"In reviewing a trial court's order sustaining a demurrer without leave to amend, we must ask (1) whether the demurrer was properly sustained, and (2) whether leave to amend was properly denied." (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1335.) The first question requires us to "independently evaluate whether the operative complaint states facts sufficient to state a cause of action" (Alborzian v. JPMorgan Chase Bank N.A. (2015) 235 Cal.App.4th 29, 34), and in so doing, we accept as true "all material facts properly pled" in that complaint (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152). The second question "requires us to decide whether '"'there is a reasonable possibility that the defect [in the operative complaint] can be cured by amendment.'"'" (McClain v. Sav-On Drugs (2017) 9 Cal.App.5th 684, 695, affd. (2019) 6 Cal.5th 951.) Because plaintiff proffers no suggestion on how to further amend his complaint and because we perceive no viable way to do so, the propriety of the dismissal order in this case turns entirely on whether his complaint states one or more viable causes of action.

I. Analysis

We independently agree with the trial court that plaintiff's complaint was properly dismissed on demurrer.

A. Noncompliance with the Government Claims Act

California's Government Claims Act (Gov. Code, §§ 810 et seq.)[4] (the Act) is a set of statutes that waives our State's sovereign immunity and empowers plaintiffs to sue "public entities and their employees" for "all noncontractual bases of compensable damage or injury that might be actionable between private persons." (Caldwell v. Montoya (1995) 10 Cal.4th 972, 980; Leon v. County of Riverside (2021) 64 Cal.App.5th 837, 846 (Leon); § 815, subd. (a).) The liability of a public entity under the Act is tied to the liability of its employee(s): If the public employee would be liable to the plaintiff for acts undertaken within the scope of employment, the public entity will be held liable; but if the public employee is not liable or is immune from liability, so too is the public entity. (Walker v. County of Los Angeles (1987) 192 Cal.App.3d 1393, 1397; § 815.2, subds. (a) & (b).)

The Act erects an absolute procedural prerequisite before its waiver of sovereign immunity applies-namely, the putative plaintiff must first notify the public entity of its potential liability by presenting a timely "written claim." (§ 945.4.) To be timely, the claim must satisfy specific deadlines: If the plaintiff wishes to sue for "death" or "injury to person or to personal property," the plaintiff must present a written claim with the public entity "not later than six months after the accrual of the cause of action"; if the plaintiff wishes to sue for any other injury, the claim must be filed "not later than one year after the accrual of the cause of action." (§ 911.2, subd. (a).) A plaintiff's failure to comply with the Act's claim requirement bars any subsequent lawsuit against the public entity or public employee, and thus provides a ground for sustaining a demurrer. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 737-738; State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.)

Plaintiff's entire complaint is barred by the Act because plaintiff failed to comply with the Act's claim-presentment requirement before filing his lawsuit. A cause of action "accrues . . . when the plaintiff has reason to suspect an injury and some wrongful cause . . . ." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 803.)

Here, plaintiff alleges that he realized that the investigation was defective and that his assailant would never be prosecuted in January 2018. Even if we tre...

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