Kaminsky v. City of Los Angeles CA2/5

Filed 12/23/22 Kaminsky v. City of Los Angeles CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE

ESTHER KAMINSKY, B310170

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No.

v. 19STCV24547)

CITY OF LOS ANGELES,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Yvette M. Palazuelos, Judge. Affirmed.

Schonbrun Seplow Harris Hoffman & Zeldes, Paul

Hoffman, and John C. Washington; Donald G. Norris, a Law

Corporation and Donald G. Norris; Law Offices of Sherman M.

Ellison and Sherman M. Ellison; Waymaker, Donald R.

Pepperman, and Sam Meehan for Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Scott Marcus, Chief

Assistant City Attorney, Blithe S. Bock, Managing Assistant City

Attorney, and Sara Ugaz, Deputy City Attorney, for Defendant

and Respondent.

2

When it comes to speeding tickets and so-called “speed

traps,” the Legislature has passed statutes that prove you can

fight City Hall. As we decide in this appeal, however, neither

those statutes nor any other legal theory permits civilly suing a

city to recover monetary damages or other relief for speed traps—

at least on the facts and theories of liability properly presented

here.

I. BACKGROUND

A. Background Law

California’s basic speed law provides that “[n]o person shall

drive a vehicle upon a highway at a speed greater than is

reasonable or prudent . . . and in no event at a speed which

endangers the safety of persons or property.” (Veh. Code,

§ 22350.)

The Vehicle Code prohibits “peace officer[s] or other

person[s]” from “us[ing] a speed trap in arresting . . . any person

for any alleged violation of this code” and from using a speed trap

“in securing evidence as to the speed of any vehicle for the

purpose of an arrest or prosecution under this code.” (Veh. Code,

§ 40801.) The Vehicle Code defines “speed trap” to include a

“section of a highway with a prima facie speed limit [provided or

established in certain ways] if that prima facie speed limit is not

justified by an engineering and traffic survey conducted within

five years prior to the date of the alleged violation, and

enforcement of the speed limit involves the use of radar or any

other electronic device that measures the speed of moving

objects.” (Veh. Code, § 40802, subd. (a)(2).)

The Vehicle Code also specifies certain consequences when

speed traps are used. Under Vehicle Code section 40803, no

3

evidence of a vehicle’s speed “shall be admitted in any court upon

the trial of any person in any prosecution under this code upon a

charge involving the speed of a vehicle when the evidence is

based upon or obtained from or by the maintenance or use of a

speedtrap.” Vehicle Code section 40804 makes “an officer or

other person . . . incompetent as a witness if the testimony is

based upon or obtained from or by the maintenance or use of a

speed trap.” And Vehicle Code section 40805 states “[e]very court

shall be without jurisdiction to render a judgment of conviction

against any person for a violation of this code involving the speed

of a vehicle if the court admits any evidence or testimony secured

in violation of, or which is inadmissible under[,] this article.”

B. Plaintiffs and Appellants’ Speeding Tickets

Plaintiffs and appellants Esther Kaminsky, James

Cameron, Mark Shamoun, and Joseph McLaughlin were each

cited for driving over a posted speed limit in the City. On March

8, 2017, Shamoun was arrested and issued a citation for unsafe

speed in violation of Vehicle Code section 22350 on Roscoe

Boulevard near Sale Avenue. On November 17, 2017, Cameron

was arrested and issued a citation for unsafe speed on Sepulveda

Boulevard near Sardis Avenue. On April 2, 2018, Kaminsky and

McLauglin were each separately arrested and issued citations for

unsafe speed on Canoga Avenue near Strathern Street.1

All four plaintiffs were informed by the respective police

officers who arrested them that their speed had been detected by

use of a laser device, and the citations they received similarly

1

The record does not identify the precise speed at which any

of the plaintiffs were driving.

4

indicated a laser device was used in determining their speed. All

four plaintiffs were released from custody only by signing an

agreement to appear in court.

McLaughlin chose not to contest his citation and paid $436

in fines and fee assessments in June 2018, as well as a fee to

attend traffic school. McLaughlin’s conviction on the citation

charge was entered in October 2018.

Shamoun, Cameron, and Kaminsky each retained counsel

to represent them. Their citations were ultimately dismissed at

trial because no valid traffic survey was in place at the time of

the citation.2

C. Plaintiffs Civilly Sue the City

Plaintiffs filed a putative class action complaint alleging

nine causes of action against the City of Los Angeles and the City

of Los Angeles’ Department of Transportation in July 2019.

Generally speaking, the complaint alleged that in or around

2008, the City began allowing its engineering and traffic surveys

(traffic surveys) to expire on hundreds of miles of City streets and

began conducting inadequate traffic surveys that did not meet

the requirements of the Vehicle Code. As alleged, the City did

not disclose that it was not complying with legislative

prohibitions against speed traps to the public, instead concealing

that fact while continuing to arrest motorists and issue them

speeding citations at speed trap locations based on the use of

2

The record does not indisputably establish the reason for

dismissal of Cameron’s citation, but Cameron contends this was

the reason and the fact of dismissal is undisputed.

5

radar or laser devices. The complaint also alleged the City

Council for the City began making efforts to update speed limits

in 2018.

After an initial demurrer, plaintiffs filed a first amended

class action complaint (the operative complaint) in May 2020.

The operative complaint alleged plaintiffs and the putative class

members were each arrested and subjected to criminal

prosecution by the issuance of a citation to appear in court by a

Los Angeles Police Department officer for exceeding the posted

speed limit. Plaintiffs contended the locations at which they were

arrested and cited constituted unlawful “speed traps” because the

posted speed limits were not justified by valid traffic surveys, and

their speed was determined by use of a laser or radar device.

According to the operative complaint, plaintiffs had a due

process right to the disclosure of favorable or exculpatory

evidence, including evidence that no valid traffic survey existed.

Plaintiffs alleged the City had a self-executing obligation to

disclose exculpatory information soon after the issuance of each

citation, and the City did not make such disclosures within 30

days prior to trial. Instead, in issuing and prosecuting speeding

citations, the City impliedly represented it had complied with

applicable laws and regulations and plaintiffs did not know of the

traffic survey requirement and had no reason to suspect the City

had a systematic practice of noncompliance.

The operative complaint asserts nine causes of action,

including, as pertinent here: violation of mandatory duties under

Government Code section 815.6; negligence; a claim under

Section 1983 for arrest and citation without probable cause; a

claim under Section 1983 for violation of the due process right to

disclosure of exculpatory material; a claim under Section 1983 for

6

violation of the due process right to not be criminally charged or

prosecuted based on falsified evidence; violation of Article 1,

sections 7 and 13 of the California Constitution; and violation of

the Bane Act (Civil Code section 52.1).3 Broadly speaking, these

various causes of action can be grouped to allege two theories of

liability. First, plaintiffs contend the City, or its employees,

breached duties in relation to plaintiffs’ arrests and citations in

speed traps.4 Second, plaintiffs contend various of their

constitutional rights had been violated by the use of the speed

traps and by the course of events in plaintiffs’ respective

prosecutions.5 Among the exhibits to the operative complaint

3

“The Bane Act makes it unlawful for any person to

interfere by threat, intimidation, or coercion, or attempt to

interfere by threats, intimidation, or coercion, with the exercise

or enjoyment by any individual secured by the Constitution or

laws of California.” (Murchison v. County of Tehama (2021) 69

Cal.App.5th 867, 896.)

Plaintiffs also alleged causes of action for false arrest and

negligent misrepresentation, but those are not the subject of any

claim of error on appeal.

4

Plaintiffs’ cause of action for violation of mandatory duties

alleges the City violated a mandatory duty to prevent the use of

speed traps, and its cause of action for negligence alleged various

City employees had a duty to use due care in performing their

obligations related to speed traps, and breached those duties.

5

Plaintiffs alleged three claims under Section 1983

predicated on alleged violations of a Fourth Amendment right to

be secure against unreasonable seizure, a due process right to the

disclosure of exculpatory evidence, and a due process right not to

be charged based on false or fabricated evidence. Plaintiffs also

alleged a claim under the California Constitution based on these

same theories. Plaintiffs additionally alleged a violation of the

7

were excerpts from LADOT’s 2008 and 2014 databases

identifying City streets with associated traffic surveys and their

expiration dates.

In terms of remedies sought, the operative complaint seeks

compensatory, consequential, actual, and treble damages;

restitution and disgorgement; preliminary and permanent

injunctive relief; and attorney fees and costs of suit.

D. The City’s Demurrer

The City demurred to the operative complaint, arguing it

failed to state facts sufficient to state a cause of action. Among

other arguments, the City contended the statutes prohibiting the

use of speed traps imposed no mandatory duty on the City that

would support civil liability and the use of the speed traps did not

violate plaintiffs’ Fourth Amendment or due process rights.

The City sought judicial notice of the traffic surveys for the

locations at which plaintiffs had been cited and the notice of

ruling for the trial court’s decision on the original demurrer. The

survey for Canoga Avenue between Strathern Street and Ventura

Boulevard (where Kaminsky and McLaughlin were cited in April

2, 2018) was dated effective April 4, 2016. The survey for

Sepulveda Boulevard between Ohio Avenue and Venice

Boulevard (where Cameron was cited in November 17, 2017) was

dated effective October 10, 2008 and an Addendum extended its

expiration date to October 10, 2018. The survey for Roscoe

Bane Act, which contended the City interfered with plaintiffs’

exercise of their constitutional rights to be free from

unreasonable arrest and prosecution, as well as their statutory

rights not to be arrested and cited in violation of California’s

speed trap prohibition.

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Boulevard between Haskell Avenue and Valley Circle Boulevard

(where Shamoun was cited on March 8, 2017) was dated effective

March 19, 2012.

Plaintiffs opposed the City’s demurrer. Plaintiffs’

opposition included a single sentence requesting leave to amend

if any cause of action was deemed insufficient. Plaintiffs also

sought judicial notice of a portion of the California Manual on

Uniform Traffic Control Devices, a minute order in another case

involving Kaminsky, and a judgement entered in a case involving

someone who was not a named plaintiff.6

E. The Trial Court’s Ruling

The trial court sustained the City’s objection to plaintiffs’

request for judicial notice of the unrelated judgment and

otherwise granted the parties’ requests for judicial notice. The

trial court then sustained the demurrer in its entirety without

leave to amend.

As to the first cause of action for breach of mandatory

duties, the trial court found the speed trap statutes passed by the

Legislature did not impose mandatory duties upon the City to

prevent the use of speed traps. As to the second cause of action

for negligence, the court found plaintiffs had not sufficiently

alleged the City violated any mandatory or discretionary duties

and City employees were in any event immune from the alleged

liability. As to the third cause of action for unreasonable seizure

in violation of Section 1983, the court found plaintiffs had not

alleged a violation of their Fourth Amendment rights because

6

The City objected to the request to judicially notice the

judgment on the ground that it was irrelevant.

9

excessive speed provides probable cause for a stop. As to the fifth

cause of action for failure to disclose exculpatory material in

violation of Section 1983, the court found there was no authority

that requires a police officer to know or disclose the validity of a

traffic survey during a traffic stop or that requires the City to

disclose information regarding the validity of the traffic surveys

before trial. (The court also observed that requiring police

officers to disclose invalid traffic surveys at the time of citation

would defeat the purpose of issuing citations.) As to the sixth

cause of action for violation of the right not to be criminally

charged based on falsified evidence under Section 1983, the court

found the operative complaint did not allege the City or its

employees deliberately fabricated evidence that plaintiffs were

exceeding the posted speed limit, and the traffic surveys were

deemed invalid not because they were fabricated, but because

they were no longer up to date. Plaintiffs’ derivative seventh

cause of action for violation of the California Constitution failed

to state a claim for the same reason the federal constitutional

claims failed. And as to the eighth cause of action for violation of

the Bane Act, the court found plaintiffs did not state a claim

because all of their other theories of liability failed and there was

no sufficient allegation of coercion beyond that inherent in any

arrest.

The trial court denied leave to amend, stating it allowed

Plaintiffs leave to amend after the original demurrer and the

First Amended Complaint still did not state viable causes of

action.

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II. DISCUSSION

The trial court’s ruling is correct. The Legislature has

prohibited the use of speed traps, but the statutory language

indicates it has not imposed mandatory duties on municipalities

like the City to ensure compliance with that prohibition (as

opposed to the aforementioned remedy of suppression for anyone

cited as part of a speed trap). Speed trap citations also do not

constitute constitutional violations, at least on the facts alleged

in the operative complaint: Police officers who stop motorists

driving over the posted speed limit have probable cause to stop

them; disclosure of traffic surveys in traffic court rather than

prior to trial does not constitute a due process violation; and

plaintiffs have not alleged any evidence was actually fabricated

in support of their falsification of evidence claim. Finally, the

City employees mentioned in the operative complaint are

immune from liability for their asserted negligence under the

alleged circumstances described in the complaint.

A. Standard of Review

We review an order sustaining a demurrer without leave to

amend de novo. (Centinela Freeman Emergency Medical

Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994,

1010; Morales v. 22nd Dist. Agricultural Assn. (2016) 1

Cal.App.5th 504, 537.) “[W]e accept the truth of material facts

properly pleaded in the operative complaint, but not contentions,

deductions, or conclusions of fact or law. We may also consider

matters subject to judicial notice. (Evans v. City of Berkeley

(2006) 38 Cal.4th 1, 6[ (Evans)].)” (Yvanova v. New Century

Mortgage Corp, 62 Cal.4th 919, 924, fn. omitted.) “‘[T]he plaintiff

has the burden of showing that the facts pleaded are sufficient to

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establish every element of the cause of action and overcoming all

of the legal grounds on which the trial court sustained the

demurrer, and if the defendant negates any essential element, we

will affirm the order sustaining the demurrer as to the cause of

action.’” (Rossberg v. Bank of America, N.A. (2013) 219

Cal.App.4th 1481, 1490-1491 (Rossberg).)

B. Mandatory Duty Claim

Government Code section 815.6 states that “[w]here a

public entity is under a mandatory duty imposed by an

enactment that is designed to protect against the risk of a

particular kind of injury, the public entity is liable for an injury

of that kind proximately caused by its failure to discharge the

duty unless the public entity establishes that it exercised

reasonable diligence to discharge the duty.” Thus, in

determining whether liability for breach of a mandatory duty

may be imposed on a public entity under this statute, California

courts consider (1) whether an enactment imposed a mandatory

duty; (2) whether the enactment intended to protect against the

kind of risk of injury suffered by the plaintiff; and (3) whether

breach of the mandatory duty was a proximate cause of the injury

suffered. (Department of Corporations v. Superior Court (2007)

153 Cal.App.4th 916, 926.) “[A]pplication of section 815.6

requires that the enactment at issue be obligatory, rather than

merely discretionary or permissive, in its directions to the public

entity; it must require, rather than merely authorize or permit,

that a particular action be taken or not taken.” (Haggis v. City of

Los Angeles (2000) 22 Cal.4th 490, 498.)

“Courts have construed this [obligatory enactment

requirement] rather strictly, finding a mandatory duty only if the

12

enactment ‘affirmatively imposes the duty and provides

implementing guidelines.’ [Citations.]” (Guzman v. County of

Monterey (2009) 46 Cal.4th 887, 898 (Guzman); see also Rey v.

Madera Unified School Dist. (2012) 203 Cal.App.4th 1223, 1234.)

The enactment cannot “simply set forth a prohibition or a right,

as opposed to an affirmative duty on the part of a government

agency to perform some act.” (Clausing v. San Francisco Unified

School Dist. (1990) 221 Cal.App.3d 1224, 1239 (Clausing).)

Instead, “to impose a mandatory duty on a public entity (see Gov.

Code, § 815.6), ‘“the mandatory nature of the duty must be

phrased in explicit and forceful language”’ [citation], and the

statute ‘must impose a duty on the specific public entity sought to

be held liable’ [citation].” (Guzman, supra, at 894.)

Plaintiffs’ appellate briefing focuses on one provision of the

Vehicle Code in arguing its allegation of the existence of a

mandatory duty should have survived the City’s demurrer:

Vehicle Code section 40801.7 That statute provides: “No peace

officer or other person shall use a speed trap in arresting, or

participating or assisting in the arrest of, any person for any

alleged violation of this code nor shall any speed trap be used in

securing evidence as to the speed of any vehicle for the purpose of

an arrest or prosecution under this code.” By its plain terms,

section 40801 prohibits peace officers and other persons from

using speed traps in certain circumstances. It does not impose

any duties, mandatory or otherwise, on the City or LADOT, and

7

The other Vehicle Code sections cited in plaintiffs’

mandatory duty cause of action define the terms “engineering

and traffic survey” and “speed trap.” (Veh. Code, §§ 627, 40802.)

13

the statute does not provide for any guidelines to implement a

purported mandatory duty.

Our interpretation of Vehicle Code section 40801 to impose

no mandatory duty on local governments is underscored by the

adjacent sections of the Vehicle Code, which specify the

consequences for a violation of the rule against speed trap usage

in prosecutions under the Vehicle Code involving a vehicle’s

speed. These too do not promulgate implementing guidelines

that might suggest the imposition of a mandatory duty. Section

40803, for example, provides that evidence of the speed of a

vehicle obtained using a speed trap is inadmissible. Section

40804 similarly provides that an officer or other person is

incompetent as a witness if their testimony is based on or

obtained from the use of a speed trap. And section 40805

provides that courts are without jurisdiction to render convictions

if the court admits any evidence or testimony secured in violation

of the speed trap law. While these sections obviously establish

there are consequences for use of an improper speed trap, none

outlaws the existence of speed traps, provides guidance regarding

how any such assumed prohibition should be carried out, or

states any consequences for the failure to do so. That all

militates in favor of a conclusion that no mandatory duty is

imposed. (See, e.g., Clausing, supra, 221 Cal.App.3d at 1239

[Education Code sections that expressly prohibited teachers from

using corporal punishment but did not set forth guidelines or

rules for preventing it did not create mandatory duties on the

part of schools and districts to ensure students were never

subjected to corporal punishment by teachers].)

In arguing the contrary, plaintiffs assert that a prohibitory

statute still can create a mandatory duty. Even if that is true as

14

a general matter, it still does not change what we have already

seen in examining the pertinent Vehicle Code sections that are at

issue in this case: none include language from which the

existence of a mandatory duty can be inferred. Plaintiffs also

argue holding Vehicle Code section 40801 imposes no mandatory

duty would be inconsistent with the purpose of the statute and

the case law interpreting it because the statute does not allow for

the exercise of any discretion in the use of speed traps. While it

is true that the inclusion of discretionary language in a statute

can be probative of whether it imposes a mandatory duty, the

absence of such language is not determinative—and here, there

are good indications apart from the question of authorized

discretion that the Legislature intended to create no mandatory

duty. Plaintiffs finally contend on the issue of mandatory duty

that Vehicle Code section 627 imposes its own mandatory duty by

requiring traffic surveys to include consideration of prevailing

speeds, accident records, and conditions not readily apparent to a

driver. Assuming without deciding that Vehicle Code section 627

does, in fact, impose some mandatory duty, that duty is to ensure

roadways reflect safe driving conditions. It is not a duty to

protect plaintiffs from being stopped for traffic violations using

speed traps, or to authorize recovery of alleged damages for use of

speed traps.

C. Constitutional Claims

1. Background legal principles

Section 1983 provides in relevant part: “Every person who,

under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any

citizen of the United States or other person within the

15

jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other

proper proceeding for redress . . . .” “‘To state a claim under

[Section] 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and

must show that the alleged deprivation was committed by a

person acting under color of state law.’ [Citation.]” (Arce v.

Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455,

1472 (Arce).)

“In regards to plaintiffs’ [S]ection 1983 claim, we ‘“apply

federal law to determine whether [the] complaint [has pleaded] a

cause of action . . . sufficient to survive a general demurrer.”

[Citations.] According to federal law, “we are required to

construe complaints under [Section 1983] liberally.” [Citation.]

“To uphold a dismissal [for failure to state a claim for relief, the

federal counterpart of our general demurrer], it must appear to a

certainty that the plaintiff would not be entitled to relief under

any set of facts that could be proved.” [Citation.]’ [Citation.]”

(Arce, supra, 211 Cal.App.4th at 1471.) “In line with California

practice, the court accepts the allegations in the complaint as

true and construes the allegations, and any reasonable inferences

that may be drawn from them, in the light most favorable to the

plaintiff.” (Ibid.)

2. Fourth Amendment Section 1983 claim

The Fourth Amendment protects “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures . . . .” (U.S. Const., 4th

Amend.) “A traffic stop for a suspected violation of law is a

16

‘seizure’ of the occupants of the vehicle and therefore must be

conducted in accordance with the Fourth Amendment.

[Citation.] . . . [T]o justify this type of seizure, officers need only

‘reasonable suspicion’—that is, ‘a particularized and objective

basis for suspecting the particular person stopped’ of breaking

the law.” (Heien v. North Carolina (2014) 574 U.S. 54, 60.)

In their cause of action under Section 1983 alleging a

Fourth Amendment violation, plaintiffs argue there was no

proper basis for their arrest and citation because both resulted

from use of a radar device at a location where no valid traffic

survey was in place. The problem with this argument, however,

is that the existence of a valid traffic survey does not defeat the

officers’ reasonable conclusion at the time of the stop that

plaintiffs were exceeding the posted speed limit.8 Indeed, “it is

beyond contravention that excessive speed, whether detected

through mechanical device or observation, provides probable

cause for a stop.” (People v. Sullivan (1991) 234 Cal.App.3d 56,

65 (Sullivan); see also People v. Hardacre (2004) 116 Cal.App.4th

1292, 1300 [“[a] law enforcement officer may legally stop a

motorist if the facts and circumstances known to the officer

support a reasonable suspicion that the driver has violated the

Vehicle Code or some other law”]; San Joaquin Deputy Sheriffs’

Ass’n v. County of San Joaquin (E.D.Cal. 2012) 898 F.Supp.2d

8

Plaintiffs argue their allegations that the police officers

knew the surveys were invalid renders these principles

inapposite. This is unpersuasive here, where the relevant traffic

surveys—which were judicially noticed—all appear facially

timely (e.g., dated within the five-year period prescribed by

Vehicle Code section 40802) and thus valid based on the dates of

plaintiffs’ citations.

17

1177, 1186 [speeding is a vehicular violation that gives an officer

probable cause to stop a driver].) The Fourth Amendment

Section 1983 claim therefore fails as a matter of law.9

Plaintiffs’ claim also fails for another independent reason:

“the prohibition against speed traps is strictly statutory”

(Sullivan, supra, 234 Cal.App.3d at 65) and “[a] violation of state

law does not itself suffice to show [defendants] violated

[plaintiffs’] federal constitutional rights.” (Wagda v. Town of

Danville (N.D.Cal. Oct. 24, 2016, No. 16-cv-00488-MMC) 2016

U.S.Dist.LEXIS 147108, at *38-39, fn. 19 [claim that traffic stop

for speeding in speed trap violated Fourth Amendment rights

failed because plaintiff did not allege officer lacked reasonable

suspicion to stop motorist for speeding].)

Plaintiffs additionally argue they sufficiently stated a claim

under Monell v. New York City Dept. of Social Services (1978) 436

U.S. 658 (Monell). In Monell, the U.S. Supreme Court held that

“Section 1983 does not assign liability to a local government

under a respondeat superior theory, but the entity may be liable

if the constitutional violation was caused by its official policy,

practice, or custom.” (Kerkeles v. City of San Jose (2011) 199

Cal.App.4th 1001, 1015-1016.) To sustain a Section 1983 claim

under Monell, “a plaintiff must show that (1) he or she possessed

a constitutional right of which he or she was deprived; (2) that

the municipality had a policy which amounted to ‘deliberate

indifference’ to the plaintiff's constitutional right; and (3) that

9

Insofar as Plaintiffs allege a legal conclusion—that there

was no probable cause for stopping them—the conclusory

allegation is properly disregarded. (Evans, supra, 38 Cal.4th at

6.)

18

action pursuant to that policy caused a violation of that

constitutional right.” (Zuniga v. Housing Authority (1995) 41

Cal.App.4th 82, 103-104 (Zuniga).) Because we conclude

plaintiffs have not sufficiently alleged they were deprived of a

constitutional right, their associated Monell claim also fails.

3. Section 1983 claim based on violation of due

process right to disclosure of favorable evidence

“The prosecution has a duty under the Fourteenth

Amendment’s due process clause to disclose evidence to a

criminal defendant . . . [¶] . . . [that is] both favorable to the

defendant and material on either guilt or punishment.

[Citation.]” (In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn.

omitted; see also Brady v. Maryland (1963) 373 U.S. 83, 87

(Brady).) “In Brady, the United States Supreme Court held ‘that

the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.’ [Citation.]” (People v.

Salazar (2005) 35 Cal.4th 1031, 1042.) “[E]vidence that is

presented at trial is not considered suppressed, regardless of

whether or not it had previously been disclosed during discovery.

[Citations.]” (People v. Morrison (2004) 34 Cal.4th 698, 715.) We

will assume for purposes of analysis in this case that material

exculpatory information must be disclosed to a defendant before

he or she pleads guilty or no contest. (See, e.g., Smith v. Baldwin

(9th Cir. 2007) 510 F.3d 1127, 1148; but see United States v. Ruiz

(2002) 536 U.S. 622.)

None of the plaintiffs have properly alleged a procedural or

substantive due process violation. Plaintiffs Kaminsky,

19

Shamoun, and Cameron appeared at trial, at which point

evidence regarding the relevant traffic surveys was produced.

They have not alleged the timing of the disclosure prejudiced the

outcome of their trials. Nor could they, as they all had their

citations dismissed based on the inadequacy of the relevant

traffic surveys. As to plaintiff McLaughlin, the operative

complaint does not allege McLaughlin would have gone to trial,

and thus had his citation dismissed, if he had received evidence

regarding the traffic survey in place at the location at which he

was cited.

Plaintiffs’ related contention that Penal Code section

1054.7’s instruction that discovery disclosures be made at least

30 days prior to trial was violated similarly does not demonstrate

a due process violation. A defendant’s due process right to

disclosure “is independent of, and thus not impaired or affected

by, the criminal discovery statutes.” (Bridgeforth v. Superior

Court (2013) 214 Cal.App.4th 1074, 1081; see also Izazaga v.

Superior Court (1991) 54 Cal.3d 356, 378 [“The prosecutor’s

duties of disclosure under the due process clause are wholly

independent of any statutory scheme of reciprocal discovery”].)

4. Fabrication of evidence

As plaintiffs explain, they assert a claim for deliberate

fabrication of evidence, as recognized by the Ninth Circuit in

Devereaux v. Abbey (9th Cir. 2001) 263 F.3d 1070, 1076

(Devereaux). “A Devereaux claim is a claim that the government

violated the plaintiff’s due process rights by subjecting the

plaintiff to criminal charges based on deliberately-fabricated

evidence. [Citation.] Fundamentally, the plaintiff must first

point to evidence he contends the government deliberately

20

fabricated. [Citations.] [¶] Then, there are two ‘circumstantial

methods’ of proving that the falsification was deliberate.

[Citation.] The first method is to demonstrate that the defendant

continued his investigation of the plaintiff even though he knew

or should have known that the plaintiff was innocent. [Citation.]

The second method is to demonstrate that the defendant used

‘investigative techniques that were so coercive and abusive that

[he] knew or should have known that those techniques would

yield false information.’ [Citation.] These methods are not

themselves independent causes of action. Rather, they are

methods of proving one element—intent—of a claim that the

government deliberately fabricated the evidence at issue.”

(Bradford v. Scherschligt (9th Cir. 2015) 803 F.3d 382, 386.)

Plaintiffs’ operative complaint did not identify any evidence

allegedly fabricated by the City. As a result, their claim for

fabrication of evidence necessarily fails. Spencer v. Peters (9th

Cir. 2017) 857 F.3d 789, 799, upon which plaintiffs rely in

attempting to argue the contrary, does not hold a plaintiff need

not identify evidence that was fabricated in order to state a

named fabrication of evidence claim. Rather, it explains ways in

which a plaintiff may prove evidence was fabricated in the

absence of direct evidence.

5. Claims under the California Constitution

California has generally adopted Fourth Amendment

jurisprudence for interpreting analogous provisions of the

California Constitution. (People v. Perry (2019) 36 Cal.App.5th

444, 466; see also People v. Buza (2018) 4 Cal.5th 658, 685-686.)

Accordingly, because we concluded plaintiffs did not state a claim

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under the Fourth Amendment, they have not stated a claim

under the California Constitution.

Similarly, “[b]oth the federal and state Constitutions

compel the government to afford persons due process before

depriving them of any property interest. [Citations.] In light of

the virtually identical language of the federal and state

guarantees, [the California Supreme Court has] looked to the

United States Supreme Court’s precedents for guidance in

interpreting the contours of our own due process clause and have

treated the state clause’s prescriptions as substantially

overlapping those of the federal Constitution.” (Today’s Fresh

Start, Inc. v. Los Angeles County Office of Education (2013) 57

Cal.4th 197, 212.) Because we conclude plaintiffs did not state

claims under the federal due process clause, we likewise conclude

the California Constitution-based claims also fail as a matter of

law.

D. Bane Act

As explained earlier in the margin, the Bane Act prohibits

interfering with rights guaranteed by the California Constitution

or state law. “The essence of a Bane Act claim is that the

defendant, by the specified improper means (i.e., ‘threats,

intimidation or coercion’), tried to or did prevent the plaintiff

from doing something he or she had the right to do under the law

or to force the plaintiff to do something that he or she was not

required to do under the law.” (Austin B. v. Escondido Union

School Dist. (2007) 149 Cal.App.4th 860, 883.)

“There are two distinct elements for a [Bane Act] cause of

action. A plaintiff must show (1) intentional interference or

attempted interference with a state or federal constitutional or

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legal right, and (2) the interference or attempted interference was

by threats, intimidation or coercion.” (Allen v. City of Sacramento

(2015) 234 Cal.App.4th 41, 67.) Case law articulates two theories

of coercion sufficient to support a Bane Act claim. “The first

theory of coercion is that a violation of the Bane Act requires a

showing of coercion independent from the coercion inherent in

the constitutional violation itself. (Shoyoye v. County of Los

Angeles (2012) 203 Cal.App.4th 947, 959 [ ] (Shoyoye).)” (County

Inmate Telephone Service Cases (2020) 48 Cal.App.5th 354, 369.)

“The second analysis appears in Cornell v. City and County of

San Francisco (2017) 17 Cal.App.5th 766 [ ] (Cornell). Cornell

held that, ‘where an unlawful arrest is properly pleaded and

proved, the “threat, intimidation or coercion” element of section

52.1 . . . requires a specific intent to violate protected rights.’ (Id.

at p. 799, italics & capitalization omitted; ibid. [ ].)” (County

Inmate Telephone Service Cases, supra, 48 Cal.App.5th at 369.)

As already discussed, plaintiffs have not sufficiently pled

the City violated any of their constitutional rights or any

mandatory statutory duty. Plaintiffs therefore also fail to allege

facts sufficient to establish the first prong of a Bane Act cause of

action. Moreover, even if they had, they also failed to allege the

requisite interference. There is no allegation of threat or

intimidation in the complaint, and their allegations do not state a

claim under either possible theory of coercion. Plaintiffs alleged

no coercion independent of the arrests that would satisfy the

Shoyoye theory of coercion, and even if we assumed an unlawful

arrest was pleaded such that the Cornell theory of coercion might

apply, plaintiffs did not plead defendants had a specific intent to

violate their constitutional rights.

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E. Negligence

The operative complaint alleges the City is vicariously

liable under Government Code section 815.2 for the acts or

omissions of City employees. Section 815.2 provides that “[a]

public entity is liable for injury proximately caused by an act or

omission of an employee of the public entity within the scope of

his employment if the act or omission would, apart from this

section, have given rise to a cause of action against that employee

or his personal representative.” (Gov. Code, § 815.2, subd. (a).) It

further provides that “[e]xcept as otherwise provided by statute, a

public entity is not liable for an injury resulting from an act or

omission of an employee of the public entity where the employee

is immune from liability.” (§ 815.2, subd. (b).) Thus, “in a cause

of action for negligence, the existence and extent of an entity’s

vicarious liability under [section 815.2, subdivision (a)], will be

determined by the scope of duty legally attributed to its

employees.” (Torsiello v. Oakland Unified School Dist. (1987) 197

Cal.App.3d 41, 45.)

“Except as otherwise provided by statute (including Section

820.2), a public employee is liable for injury caused by his act or

omission to the same extent as a private person.” (Gov. Code,

§ 820.) Plaintiffs’ negligence cause of action identifies three

categories of City employees that plaintiffs allege acted

negligently: (1) “members of its City Council who enacted the

relevant speed limits;” (2) “traffic engineers, managers and other

employees of LADOT tasked with producing and maintaining

valid ETSes and setting lawful speed limits;” and (3) “LAPD

officers assigned to use radar and laser devices to enforce the

basic speed law on City streets and prosecute alleged violations of

the same.”

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As alleged, the employees—and thus the City—are immune

from negligence liability. The allegation that City Council

members were negligent in enacting speed limits implicates the

City Council’s authority under Vehicle Code section 22358, which

provides a local authority “may by ordinance determine and

declare a prima facie speed limit” where it determines, based on

an engineering and traffic survey, that the speed limit of 65 miles

per hour is unsafe. (Veh. Code, § 22358.) As Vehicle Code section

22358 does not require a local authority to set a lower speed

limit, its decision to do so is an act of discretion that falls within

the immunity provisions of Government Code section 820.2.10

(Gov. Code, § 820.2 [“Except as otherwise provided by statute, a

public employee is not liable for an injury resulting from his act

or omission where the act or omission was the result of the

exercise of the discretion vested in him, whether or not such

10

Plaintiffs argue that Government Code section 820.2

cannot apply to the allegations in the complaint because

government employees are only immune for “basic policy

decisions” and not operational or ministerial decisions that

merely implement a basic policy decision. (Johnson v. State of

California (1968) 69 Cal.2d 782, 796.) While this can prevent the

issue of immunity from being determined at the demurrer stage,

that is not the case here where the allegations of the complaint

suffice to establish the acts in question were, in fact,

discretionary rather than ministerial or operational. (Compare

Zuniga, supra, 41 Cal.App.4th at 99 [immunity could not be

determined on demurrer] with Caldwell v. Montoya (1995) 10

Cal.4th 972, 976 [affirming trial court’s order sustaining

demurrer in part on immunity grounds]; Posey v. California

(1986) 180 Cal.App.3d 836 [same].)

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discretion be abused”].) The allegation that the arresting officers

were negligent for arresting and citing plaintiffs also implicates

section 820.2 immunity. Plaintiffs were ticketed by police officers

acting within the scope of their employment and whether the

citations for unsafe speed should have been issued is a question

within the officers’ discretion. Finally, despite plaintiffs’

protestations to the contrary, their allegations against the City

employees, and in particular their allegations that the engineers

failed to comply with their statutory duties, is in essence a claim

that they failed to enforce the speed trap laws. As we have held

there was no mandatory duty to do so, those allegations fall

within the immunity provided by Government Code section 821.

(Gov. Code, § 821 [“A public employee is not liable for an injury

caused . . . by his failure to enforce an enactment.”].)

F. Leave to Amend

A plaintiff who suffers dismissal after a demurrer is

sustained without leave to amend may make a showing of how

the pleading may be cured by amendment for the first time on

appeal. (See, e.g., Cansino v. Bank of America (2014) 224

Cal.App.4th 1462, 1468.) “‘The plaintiff bears the burden of

proving there is a reasonable possibility of amendment.

[Citation.] . . . [¶] To satisfy that burden on appeal, a plaintiff

“must show in what manner he can amend his complaint and

how that amendment will change the legal effect of his pleading.”

[Citation.] The assertion of an abstract right to amend does not

satisfy this burden. [Citation.] The plaintiff must clearly and

specifically set forth the “applicable substantive law” [citation]

and the legal basis for amendment, i.e., the elements of the cause

of action and authority for it. Further, the plaintiff must set

26

forth factual allegations that sufficiently state all required

elements of that cause of action. [Citations.] Allegations must be

factual and specific, not vague or conclusionary. [Citation.]’”

(Rossberg, supra, 219 Cal.App.4th at 1491; Rakestraw v.

California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44;

see also Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th

857, 890 [to meet burden for leave to amend, “plaintiff must

submit a proposed amended complaint or, on appeal, enumerate

the facts and demonstrate how those facts establish a cause of

action”].)

In their opening brief, plaintiffs make several conclusory

representations, mostly in footnotes, that they could amend their

complaint to allege new causes of action. Then, in their reply

brief, plaintiffs asserted they could amend “to sue as taxpayers to

enjoin and restrain the City from illegally arresting and

prosecuting drivers where it is clearly prohibited.” They also

assert leave to amend should be granted to the extent necessary

to “allege that Plaintiffs have a due process right not to be

arrested and prosecuted through speed trap evidence under

Vehicle Code Section 40801 without due process, and the City

deprived Plaintiff[s] of that right without due process” or to bring

a malicious prosecution claim.

Plaintiffs’ assertions are insufficient to satisfy the

requirement that a plaintiff must set forth the elements of the

causes of action and authority for the claim and set forth factual

allegations that sufficiently state all required elements of the

causes of action. Plaintiffs’ piecemeal assertions that they could,

if necessary, amend to allege new claims and their specific

argument as to a single element of one new cause of action does

27

not demonstrate the trial court abused its discretion in denying

leave to amend.

DISPOSITION

The judgment is affirmed. Defendants shall recover their

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

KIM, J.

TAMZARIAN, J.*

*

Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

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