Demurrer & Motion to Strike (Judge William J. Elfving)


Case Name: Austin Calhoun v. City Of Santa Clara, et al.

Case No.:? 2015-1-CV-288073

This is an action alleging violations of civil rights, infliction of emotional distress and assault and battery by police officers of the City of Santa Clara Police Department. Currently before the Court is Defendants? demurrer to and motion to strike portions of Plaintiff?s Second Amended Complaint (?SAC?).

Demurrer to the SAC

The Court in ruling on a demurrer treats it ?as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.?? (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)? ?A demurrer tests only the legal sufficiency of the pleading.? It admits the truth of all material factual allegations in the complaint; the question of plaintiff?s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.?? (Committee on Children?s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

The Court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike.? Accordingly, the Court has not considered the declaration of Plaintiff Counsel DeWitt Lacy, any of the exhibits attached to that declaration, or any arguments in the opposition to the demurrer based on those exhibits.? No request for judicial notice was made by Plaintiff.

As an initial matter the Court notes that the declaration of Defense Counsel Rebecca Widen, filed pursuant to Code of Civil Procedure (?CCP?) ?430.41, states in pertinent part at 4 that in the parties? meet and confer discussions ?Plaintiff?s Counsel offered to withdraw Plaintiff?s request for injunctive relief, as set forth in Paragraphs 42 and 53 of the SAC, without any admission or concession as to any asserted deficiency in the request.? Defense counsel agreed to Plaintiff?s voluntary withdrawal of the request for injunctive relief in lieu of raising it as a basis for Defendants? demurrer to the SAC.?? While Plaintiff?s opposition papers do not expressly confirm this agreement, they offer no defense of the SAC?s request for injunctive relief.? Accordingly, that portion of Defendants? motion to strike seeking to strike the term ?injunctive relief? from paragraph 42 of the SAC and to strike paragraph 53 in its entirety is GRANTED WITHOUT LEAVE TO AMEND.

The Demurrer to the entire SAC and the motion to strike paragraphs 4 and 41 in their entirety by Defendant City of Santa Clara (?City?), newly added as a defendant in the SAC, are SUSTAINED/GRANTED WITHOUT LEAVE TO AMEND.? The addition of a new party was beyond the scope of the Court?s March 7, 2016 order on the prior demurrer which expressly stated that leave to amend, where granted, was only granted as to causes of action already alleged.? No motion for leave to amend to add a new party was filed by Plaintiff, and the opposition papers acknowledge that the addition of the City as a defendant was an error.? (See Opposition to demurrer at 7:23-25 and Opposition to motion to strike at 7:2-3.)

The demurrer to the SAC?s first cause of action for violation of Civ. Code ?52.1 (the ?Bane Act?) by Defendants Mike Horn and Nathan Crescini (?Defendants?) on the ground that it fails to state sufficient facts as alleged against them is SUSTAINED.

Civil Code ?52.1 provides for a civil action against a person who, ?whether or not acting under color of law, interferes [or attempts to interfere] by threat, intimidation, or coercion ? with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States [or of California].?? ?Civil Code section 52.1 does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right.?? (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 843.)? ?[T]he statute was intended to address only egregious interferences with constitutional rights, not just any tort.? The act of interference with a constitutional right must itself be deliberate or spiteful.?? (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 958.)? ?There are two distinct elements for a section 52.1 cause of action. A plaintiff must show (1) intentional interference or attempted interference with a state or federal constitutional or 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.)

As the Court stated in the order on the prior demurrer sustaining the demurrer to the first cause of action as alleged in First Amended Complaint (?FAC?) the general rule in California is that statutory claims, such as a Bane Act claim, must be pled with particularity.? (See Lopez v. Southern California Rapid Transit District (1985) 40 Cal.3d 780, 795; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790; Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 352.)

The SAC simply adds the phrase ?and protections against unreasonable searches and seizures? to the prior allegations that Defendants ?interfered with and attempted to interfere with Plaintiff?s exercise and enjoyment of his civil rights.?? (Compare SAC at 39 with FAC at 31.)? This does not cure the previously noted failure to identify what ?rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state? Defendants interfered with or attempted to interfere with.? Plaintiff also has still not alleged any intentional acts of coercion independent of the use of excessive force.? Plaintiff does not allege that his arrest (while he was intoxicated, SAC at 17, and holding a three-inch pocketknife, SAC at 21) was unlawful; he alleges that his arrest was accomplished with excessive force.? While the allegation of excessive force is accepted as true on demurrer, this allegation does not by itself sufficiently state a claim for violation of Civ. Code ?52.1.? Plaintiff must also allege that the act of interference (with an identified right or rights) was ?deliberate or spiteful.?? (Shoyoye, supra, at 958.)

Despite Plaintiff?s failure to meaningfully respond to the prior order sustaining the demurrer to the first cause of action with leave to amend, 10 days? leave to amend is again GRANTED.? The granting of leave to amend must be construed as permission to the pleader to amend the cause of action to which the demurrer has been sustained, not add entirely new causes of action.? (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)

Motion to Strike

The portion of Defendants? motion to strike not already addressed above seeks to strike the newly added request for ?$25,000 for each offense? from paragraph 55 of the SAC.? (See Defendants? Notice of Motion at 1:28.)? Paragraph 55 of the SAC (part of the Prayer) states that this amount is sought ?[f]or violation of California Civil Code Section 52(b).?? Defendants? motion to strike is GRANTED as follows.

No violation of Civ. Code ?52(b) is alleged in the SAC; the only statutory claim is the alleged violation of Civ. Code ?52.1.? While ?52.1(b) states in pertinent part that a person whose rights have been interfered with ?as described in subdivision (a), may institute and prosecute in his or her own name . . . a civil action for damages, including but not limited to, damages under Section 52,? this does not automatically establish that if Plaintiff properly stated a ?52.1 claim he would be entitled to seek the statutory penalty available under ?52(b).?? Civ. Code ?52(b) states in pertinent part that ?[w]hoever denies the right provided by Section 51.7 or 51.9 . . . is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following: . . . (2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right . . .? Court?s emphasis.

Civ. Code ?51.7 (the Ralph Act) states in pertinent part in subdivision (a) that ?[a]ll persons . . . have the right to be free from any violence or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.?? Court?s emphasis.? While the ?52(b)(2) statutory penalty is among the remedies potentially available in an action under ?52.1, a request for that penalty must be supported by allegations that rights provided under ?51.7 were denied. ?The SAC does not allege that Plaintiff was harmed by Defendants because of any political affiliation, any position in a labor dispute, or because of any characteristic listed or defined in Civ. Code ?51(b) or (e) (part of the Unruh Civil Rights Act, not the Bane Act.? See Stamps v. Sup. Ct. (2006) 136 Cal.App.4th 1441.)? Nor could such allegations be added at this point without a noticed motion for leave to amend.? Accordingly, leave to amend is DENIED.