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 the demurrer to Plaintiff?s now Third Amended Complaint (?TAC?), specifically the first cause of action for Violation of Civ. Code ?52.1 (the ?Bane Act?) by Defendants Mike Horn and Nathan Crescini (?Defendants?).? This is the third time the Court has heard a challenge to Plaintiff?s Civ. Code ?52.1 claim. On each of the prior occasions the Court has sustained a demurrer on the basis that the claim fails to state sufficient facts, largely because Plaintiff failed 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 and because Plaintiff had not alleged any intentional acts of coercion independent of the use of excessive force.
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.)? Allegations are not accepted as true on demurrer if they contradict or are inconsistent with facts judicially noticed.? ?While inconsistent theories of recovery are permitted, a pleader cannot blow hot and cold as to the facts positively stated.?? (Manti v. Gunari (1970) 5 Cal.App.3d 442, 449, internal citation omitted.? See also Witkin, California Evidence (4th Ed., 2000) 1 Judicial Notice ?3(3) [?It has long been established in California that allegations in a pleading contrary to judicially noticed facts will be ineffectual; i.e., judicial notice operates against the pleader.?])
Defendants? request for judicial notice of two documents: 1) a copy of the September 14, 2015 Order of the Federal District Court (Hon. Gilliam) in the prior federal action between these same parties (ex. 1), and; 2) a copy of the same Federal District Court?s October 15, 2015 Order dismissing that action (ex. 2) is GRANTED pursuant to Evid. Code ?452(d).
Court orders may be noticed as to their contents and the legal effect of their rulings.? In its September 14, 2015 Order the federal court (among other rulings) granted summary judgment to Defendant Horn on Plaintiff?s Fourth Amendment claim of excessive force, finding that he was entitled to qualified immunity, and denied summary judgment to Defendant Crescini on this issue on the basis that triable issues remained.? The Court also denied summary judgment to both Defendants on Plaintiff?s Bane Act claims based on its conclusion that there was a ?a split in authority? amongst federal courts in California in applying ?52.1 as to whether an alleged Fourth Amendment excessive force or false arrest claim by itself could support a ?52.1 violation. In its October 15, 2015 Order, the federal court stated in pertinent part that ?the Court GRANTS the parties? stipulation to amend the Complaint to dismiss with prejudice Plaintiff?s First Cause of Action against Defendant Nathan Crescini for violation of 42 U.S.C. Section 1983.? As a result of this amendment, all of Plaintiff?s remaining claims arise solely under California Law.?
The federal court?s September 14, 2015 Order bars any further claim that Defendant Horn used excessive force and/or violated Plaintiff?s Fourth Amendment rights.? A general demurrer lies where the facts alleged in the complaint or matters judicially noticed show that a plaintiff is seeking relief from the same defendant on the same cause of action as in a prior action, or is asserting an issue decided against plaintiff in the prior action.? (See Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 792 [plaintiff’s wrongful death action barred by her prior voluntary dismissal of loss of consortium action against same defendant]; Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 556 [complaint barred by collateral estoppel]; Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1270-1271 [action barred by collateral estoppel subject to demurrer even if issue wrongly decided in first action].)
The federal court?s October 15, 2015 Order, establishing that Plaintiff dismissed his 42 U.S.C. ?1983 claim alleged against Defendant Crescini with prejudice, bars any further claim that Defendant Crescini?s use of force was excessive and/or violated Plaintiff?s Fourth Amendment rights.? ?[A] retraxit?modernly effected by a plaintiff’s filing of a dismissal of his or her action with prejudice?is deemed to be a judgment on the merits against that plaintiff.? In its common law form, a retraxit resulted from a plaintiff’s ?open and voluntary renunciation of his suit, in court,? resulting in the loss of his or her action forever.? A retraxit arising from a dismissal with prejudice thus operates as a legal fiction, and it is given the same finality as if the matter were adjudicated and proceeded to a final judgment on the merits.?? (Alpha Mechanical Heating & Air Conditioning, Inc. v. Travelers Cas. & Sur. Co. of America (2005) 133 Cal.App.4th 1319, 1330-1331 [internal citations omitted].)
Based in part on these judicially noticed facts, Defendants? demurrer to Plaintiff?s first cause of action for violation of Civ. Code ?52.1 on the ground that it fails to state sufficient facts is SUSTAINED.
As the Court has noted in prior orders in this case, 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.)? 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 basis for the alleged Civ. Code ?52.1 violation as stated in the TAC at 38 is that Defendants ?interfered with and attempted to interfere with Plaintiff?s exercise and enjoyment of his civil rights provided under the 4th Amendment to the United States Constitution against unreasonable searches and seizures or the use of excessive and arbitrary force by shooting him with rubber bullets and ordering a K9 to attack him, all accomplished through threats, intimidation and coercion.?? The precise issue of whether Defendant Horn?s conduct including his use of rubber bullets on the night in question constituted a Fourth Amendment violation was already adjudicated?in Defendant Horn?s favor?in the federal court action between these same parties.? That issue may not be re-litigated here.? Similarly, Plaintiff?s claim that Defendant Crescini?s use and control of a K9 unit on the night in question constituted excessive force and/or otherwise violated his Fourth Amendment rights was abandoned when he dismissed his 42 U.S.C. ?1983 claim alleged against Defendant Crescini with prejudice in the federal court action.? That issue may not be revisited here as that dismissal has res judicata effect.
The first cause of action as alleged in the TAC thus still fails to allege any interference or attempted interference with a constitutional or legal right by either defendant that may serve as a basis for a Civ. Code ?52.1 claim.? The TAC also continues to fail to allege that the act of interference (with an identified right or rights) was ?deliberate or spiteful.?? (Shoyoye, supra, at 958) and still fails to allege in a non-conclusory fashion what ?threats, intimidation and coercion? took place.? Further leave to amend is DENIED as it is now apparent that the defects in the first cause of action cannot be cured without contradicting judicially noticed facts.