Michelman v. City of L.A. CA2/2

Filed 7/7/22 Michelman v. City of L.A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

RYAN MICHELMAN, B311658

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV45379)

CITY OF LOS ANGELES et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, 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.
FACTS AND PROCEDURAL BACKGROUND
I. Facts1
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.

1 These facts are drawn from plaintiff’s complaint.

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 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

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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

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

2 The LAPD and the Los Angeles City Attorney’s Office did
not join in the demurrer. That is because they are part of the
City itself. (See Valdez v. City of Los Angeles (1991) 231
Cal.App.3d 1043, 1060, fn. 4 [LAPD not a separate entity who can
be sued]; L.A. Charter, § 270 et seq. [City Attorney is one office
within the City of Los Angeles].) Thus, plaintiff is incorrect in
suggesting that the failure of the LAPD or Los Angeles City
Attorney’s Office to join the demurrer or otherwise answer his
complaint constitutes a default to the complaint warranting entry
of judgment in his favor.

3 We grant the motion filed by the City, Pantoja, and Feuer
to augment the record on appeal to include defendants’ request
for judicial notice filed in the trial court in support of their
demurrer and the trial court’s minute order ruling on the
demurrer.

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 “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,

4 All further statutory references are to the Government
Code unless otherwise indicated.

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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)

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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 treat plaintiff’s
May 2019 letter to the City Attorney as substantially complying
with the claim-presentation requirement, that letter—and hence
plaintiff’s claim—was not presented until 16 months after his
cause of action accrued. That exceeds both the six-month and 12-
month claims presentation deadlines in the Act.
Plaintiff resists this conclusion with what boils down to
three arguments.
First, he argues that the passenger’s punches to the back of
his head and the side of his eye caused one of his teeth to fall out
six months after the incident; that this additional injury elevates
the misdemeanor battery to a felony; that felony charges may be
filed up to three years after the crime (Pen. Code, § 801); and that
he accordingly did not know his assailant would not be
prosecuted until October 2020. We reject this argument because
the accrual date in this case was triggered by plaintiff’s
subjective awareness—as he himself alleges in the complaint—
that he knew, in January 2018, that his assailant would not be
prosecuted. Plaintiff cannot now ask us to ignore his allegation
and instead treat the statutory deadline for filing charges as the
accrual date. And even if we accepted plaintiff’s argument, it
would apply at most to his claims against defendants in their
prosecutorial role, and in that role they enjoy absolute immunity
for the reasons discussed below.
Second, plaintiff argues that he had difficulty complying
with the City’s electronic claims presentation protocols in
February 2020. This is irrelevant because, by that time, plaintiff

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had already filed his lawsuit and, therefore, had not exhausted
the claims-presentment requirement.
Third, plaintiff argues that the Act is preempted by the
Federal Tort Claims Act (the Federal Act) (28 U.S.C. § 2671 et
seq.) because it offers a longer claims-presentation period.
Plaintiff is wrong. There is no provision of the Federal Act that
expressly preempts all claims presentation periods under state
government claims acts. (English v. General Electric Co. (1990)
496 U.S. 72, 78-79.) And nothing in the Federal Act implicitly
does so. That is because, as noted above, the function of so-called
“government claims acts” is to waive sovereign immunity; when a
government elects to waive its sovereign immunity, it “may
impose conditions as a prerequisite to the commencement of [any]
action against it . . . .” (Carr v. State of California (1976) 58
Cal.App.3d 139, 142-144.) Because the federal government and
the states are independent sovereign entities, the federal
government may elect to waive its sovereign immunity on
conditions different than those of the states. Thus, the Federal
Act in no way intends to “occupy the field.” (Hillsborough County
v. Automated Medical Laboratories, Inc. (1985) 471 U.S. 707,
713.) Further, nothing about the states electing to have different
conditions for the waiver of their sovereign immunity in any way
interferes with or obstructs the purpose of the Federal Act.
(Hines v. Davidowitz (1941) 312 U.S. 52, 67; Crosby v. National
Foreign Trade Council (2000) 530 U.S. 363, 373.)
B. Failure to state a claim
1. Lack of standing
As to the first category of claims attacking the failure to
prosecute, plaintiff lacks standing. That is because the decision
whether and how to prosecute crimes is solely entrusted to the

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discretion and judgment of the executive branch. (§ 26500;
Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1132; Dix v.
Superior Court (1991) 53 Cal.3d 442, 451 (Dix) [“The prosecution
of criminal offenses on behalf of the People is the sole
responsibility of the public prosecutor.”].) As a result, victims of
crime have no standing to sue public officials for how that
discretion is exercised, which includes the decision not to
prosecute. (Dix, at p. 452; Linda R.S. v. Richard D. (1973) 410
U.S. 614, 619.) Lack of standing is an appropriate basis for
sustaining a demurrer. (McKinny v. Board of Trustees (1982) 31
Cal.3d 79, 90.)
2. Statutory immunity
All of plaintiff’s claims are barred by section 821.6. In
pertinent part, that provision provides that “[a] public employee
is not liable for injury caused by his instituting or prosecuting
any judicial . . . proceeding within the scope of his employment,
even if he acts maliciously and without probable cause.” (§
821.6.) Although the plain terms of the statute immunize public
employees who “prosecut[e]” crimes and “institut[e]” criminal
prosecutions, the immunity from liability also reaches public
employees who investigate crimes “[b]ecause investigation is ‘an
essential step’ toward the institution of formal proceedings.”
(Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205,
1209-1210 (Amylou R.); Asgari v. City of Los Angeles (1997) 15
Cal.4th 744, 757 (Asgari); Leon, supra, 64 Cal.App.5th at pp. 846,
855; Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 528
(Roger); Lawrence v. Superior Court (2018) 21 Cal.App.5th 513,
526; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033,
1047-1048 (Gillan); Baughman v. State of California (1995) 38
Cal.App.4th 182, 192.)

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 The purpose of this immunity is “to protect public
employees in the performance of their prosecutorial [and
investigative] duties from the threat of harassment through civil
suits.” (Gillan, supra, 147 Cal.App.4th at p. 1048.) As a result,
this immunity applies no matter who is suing, and thus bars
lawsuits by crime victims against investigators and prosecutors.
(Amylou R., supra, 28 Cal.App.4th at p. 1211.) With the
exception of claims alleging false arrest or false imprisonment
(Asgari, supra, 15 Cal.4th at pp. 752-753; Sullivan v. County of
Los Angeles (1974) 12 Cal.3d 710, 721), this immunity also
applies no matter the nature of the plaintiff’s claim(s), and thus
encompasses claims based on allegedly discriminatory motive
(Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146
Cal.App.4th 1507, 1516 [immunity applies to discrimination-
based claims]; Roger, supra, 44 Cal.App.5th at p. 527 [immunity
applies to intentional infliction of emotional distress and
defamation]). And, as is pertinent to this case, this immunity
applies even when ultimate result is the failure to prosecute
(County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th
218, 229; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1293);
this makes sense because the language of section 821.6 is aimed
most readily at malicious prosecution claims, and the wrongful
decision not to prosecute is merely the flip side of the same coin
as the wrongful decision to prosecute.
All 12 of plaintiff’s claims fall within the scope of the
immunity conferred by section 821.6, and are therefore properly
dismissed on demurrer. (Bocanegra v. Jakubowski (2015) 241
Cal.App.4th 848, 856-857.) Each claim faults the City’s
investigators or prosecutors for the decisions they made as to how
to investigate the October 2017 assault on plaintiff and the

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decision they made not to prosecute anyone for that assault. In
these respects, this case is analogous to Strong v. State of
California (2011) 201 Cal.App.4th 1439. There, the court held
that section 821.6 barred a lawsuit against a California Highway
Patrol officer who lost or destroyed information that would have
allowed the officer to track down a third party who injured the
plaintiff in a collision. (Id. at pp. 1445, 1449-1450, 1461.)
II. Plaintiff’s Remaining Arguments
Plaintiff raises three more contentions on appeal.
First, he contends that his right to procedural due process
was violated because (1) the trial court’s hearing on the demurrer
lasted only “two minutes,” and (2) the trial court made it difficult
for plaintiff to assemble the record on appeal. There is no
reporter’s transcript in this case, so we have no idea (beyond
plaintiff’s representations in his appellate briefs) regarding the
duration of the hearing. But even if we accept that the hearing
was two minutes long, the question on demurrer is a legal
question that turns on the content of the complaint, not any
evidence or argument presented at the hearing. Further,
plaintiff’s difficulty in assembling materials for the appeal is
irrelevant to the substantive merit of the appeal.
Second, plaintiff contends that he should be reimbursed
$100 for the costs he incurred applying to serve the summons by
publication after defendants did not return an acknowledgement
of receipt of the summons plaintiff served on them by mail. (Code
Civ. Proc., § 415.30, subd. (d).) This alleged error is not properly
before us. The record on appeal does not include any proof that
plaintiff complied with the requirements for service by mail that
could entitle him to an award of costs. (Id., subds. (a), (b).) What
is more, there is no indication in the record that plaintiff ever

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requested an award of these costs in the trial court. (Id., subd.
(d).)
Lastly, plaintiff contends that we cannot affirm because
respondent’s brief by the City, Pantoja, and Feuer was not timely
filed. The brief was filed on time because it was filed by the date
specified in our default notice. But even if the brief were filed
late and disregarded, our task is to evaluate the merits of
plaintiff’s appeal; the absence of a respondent’s brief does not
relieve us of that duty. (In re Bryce C. (1995) 12 Cal.4th 226, 232-
233.) As explained above, we have independently concluded that
the trial court did not err.
DISPOSITION
The judgment is affirmed. The City, Pantoja, and Feuer
are entitled to their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
CHAVEZ

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