Judge Barbara M. Scheper, Case 21STCV45066 2022-10-21 Tentative Ruling

Judge: Barbara M. Scheper, Case: 21STCV45066, Date: 2022-10-21 Tentative Ruling

Case Number: 21STCV45066 Hearing Date: October 21, 2022 Dept: 30

Dept. 30

Calendar No.

Sattley, et. al. vs. Davis, et. al. Case No. 21STCV45066

Tentative Ruling re: Defendant’s Demurrer to Second Amended Complaint

Defendant Councilmember John Mirisch (Defendant) demurs to the Second Amended Complaint (SAC) of Plaintiffs Josh Sattley, Ettore Berardinelli, Jr., and Protection for the Educational Rights of Kids (collectively, Plaintiffs). The demurrer is sustained without leave to amend.

In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

Plaintiffs have alleged two causes of action against Defendant: the third cause of action for 42 U.S.C. § 1983/First Amendment Retaliation, and the fourth cause of action for violation of the Bane Act (Civ. Code § 52.1).

Plaintiffs Josh Sattley and Ettore Berardinelli, Jr. are firefighters employed by the City of Beverly Hills who sought religious exemptions to the COVID vaccine mandate imposed by Los Angeles County and implemented by the City. (SAC ¶¶ 35-37.) Defendant is a member of the City Council and former mayor of Beverly Hills. (SAC ¶ 33.)

Third Cause of Action for First Amendment Retaliation

To state a claim for First Amendment retaliation against a government official, a plaintiff must demonstrate that “(1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.” (Mulligan v. Nichols (9th Cir. 2016) 835 F.3d 983, 988.)

“Informal measures, such as ‘the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation,’ can violate the First Amendment also. This court has held that government officials violate this provision when their acts ‘would chill or silence a person of ordinary firmness from future First Amendment activities.’” (White v. Lee (9th Cir. 2000) 227 F.3d 1214, 1228.)

“Retaliation claims involving government speech warrant a cautious approach by courts. Restricting the ability of government decisionmakers to engage in speech risks interfering with their ability to effectively perform their duties. . .. In accordance with these principles, we have set a high bar when analyzing whether speech by government officials is sufficiently adverse to give rise to a First Amendment retaliation claim.” (Mulligan v. Nichols (9th Cir. 2016) 835 F.3d 983, 989.) There is no remedy under the First Amendment “in the absence of ‘state action affecting [a plaintiff's] rights, benefits, relationship or status with the state.’” (Ibid.) The proper inquiry asks “whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities.” (Mendocino Environmental Center v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1300.)

Here, Plaintiffs allege that Defendant “singled out the firefighters who asserted religious objections to vaccination of being ‘anti-vaxxer[s]’ who were trying to ‘get around the County mandate…’ He explained that these firefighters would be subject to cross-examination and said ‘if any of them are caught perjuring themselves in their attempt to circumvent the vaccination mandate, then there should be serious consequences.’” (SAC ¶ 31.) Defendant added, “In many police departments, there is a well-known axiom: ‘You lie, you die.’” (SAC ¶ 32.) Defendant made these statements through Twitter and in a newspaper op-ed. (SAC ¶ 30.) Plaintiff alleges that Defendant’s comments caused one firefighter to withdraw his religious exemption. (SAC ¶ 34.)

The Court finds that Defendant’s alleged statements are insufficient as a matter of law to state a claim for First Amendment retaliation, because those statements would not “chill or silence a person of ordinary firmness from future First Amendment activities.” (Mendocino Environmental Center, 192 F.3d at 1300.) Unlike cases in which threats of legal sanctions were found sufficient to state a claim for First Amendment retaliation, Defendant did not make “a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow.” (Mulligan, 835 F.3d at 990.) It is alleged that Defendant stated that “if” a firefighter perjured themselves, they should face “serious consequences.” (SAC ¶ 31.) Committing perjury is not protected conduct, and the statement that one who commits perjury should face consequences does not constitute a threat of legal sanctions that would support a claim for First Amendment retaliation. It cannot reasonably be concluded that Defendant’s alleged statements would chill future First Amendment activities.

Furthermore, allowing a First Amendment retaliation claim based on Defendant’s alleged statements would “ignore [] the competing First Amendment rights” of Defendant as a public official. (Mulligan, 835 F.3d at 988.) “The First Amendment is intended to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’ [Citations.] That marketplace of ideas is undermined if public officials are prevented from responding to speech of citizens with speech of their own.” (Ibid.) Public officials have “a protected interest in speaking out and voting their conscience on the important issues they confront,” such as vaccine mandates. (Blair v. Bethel School Dist. (9th Cir. 2010) 608 F.3d 540, 545.) Defendant’s statements were made in the context of a vigorous public debate regarding vaccination requirements; Plaintiffs allege that Defendant’s statements were published on Twitter and as an op-ed in a local newspaper. (SAC ¶ 30.) The statements were thus part of the “marketplace of ideas” that the First Amendment is intended to protect; to find that such speech violates the First Amendment would “cripple the ability of state actors to play a part in public discourse.” (Mulligan, 835 F.3d. at 990.) “It would be the height of irony, indeed, if mere speech, in response to speech, could constitute a First Amendment violation.” (Nunez v. City of Los Angeles (9th Cir. 1998) 147 F.3d 867, 875.)

Fourth Cause of Action for Violation of the Bane Act (Civ. Code § 52.1)

Plaintiffs’ fourth cause of action against Defendant is for violation of the Tom Bane Civil Rights Act (the Bane Act), Civ. Code § 52.1.

The Bane Act provides a private right of action for damages against any person, “whether or not acting under color of law,” who “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 the rights secured by the Constitution or laws [of California].” (Civ. Code § 52.1, subd. (b).) “The plaintiff must show ‘the defendant interfered with or attempted to interfere with the plaintiff's legal right by threatening or committing violent acts.’ [Citations.] Speech is insufficient to establish the requisite threat unless it includes threat of violence. [Citation.]” (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 394.)

Here, Plaintiffs have not alleged that Defendant made any threat of violence against any person or group of people. Rather, Plaintiffs allege exactly the opposite, that Defendant’s comments “constituted a nonviolent threat…” (SAC ¶ 82.)

Plaintiffs suggest that the Bane Act’s requirement of violence or threatened violence is an unsettled issue. However, the requirement is stated clearly in Civ. Code § 52.1, subd. (k): “Speech alone is not sufficient to support an action . . . except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.”

It is well-settled that to state a claim under section 52.1, “the plaintiff must show that the defendant interfered with or attempted to interfere with the plaintiff's legal right by threatening or committing violent acts.” (Doe v. State of California (2017) 8 Cal.App.5th 832, 842; see Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 111 [“it is clear that to state a cause of action under section 52.1 there must first be violence or intimidation by threat of violence”]; Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1290.)

Because Plaintiffs allege that Defendant’s comments constituted merely a “nonviolent threat with severe consequences,” Plaintiffs have failed to state a claim under the Bane Act.