# Kaminsky v. City of Los Angeles CA2/5

> California Court of Appeal · December 23, 2022

URL: https://www.frixlaw.com/law-library/cases/9350325

## Case

- **Court:** California Court of Appeal
- **Decided:** December 23, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

8
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.

10
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

11
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

21
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

22
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.”

24
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].)

25
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9350325. Public record. Not legal advice.