Judge Lynne M. Hobbs, Case Number: 20STCV07031, Date: 2023-12-15 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV07031, Date: 2023-12-15 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Case Number: 20STCV07031 Hearing Date: April 10, 2024 Dept: 30

EMANI ELLIS vs BELCALIS MARLENIS ALMANZAR, et al.

TENTATIVE

Defendant’s demurrer is SUSTAINED without leave to amend. Moving party to give notice.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code of Civ. Proc. § 430.41.)

Request for Judicial Notice

Defendant requests judicial notice of Plaintiff’s complaint, Defendant’s motion judgment on the pleadings, this Court’s January 5, 2024 order, and Plaintiff’s first amended complaint.

The request is GRANTED.

Discussion

i. Meet and Confer

The Court finds the meet and confer requirement has been met. (Melius Decl.)

ii. Merits

Defendant argues that the fifth cause of action for violation of the Bane Act does not state sufficient facts to constitute a cause of action because: 1) Plaintiff did not allege interference with Plaintiff’s legal right to engage in legitimate employment; 2) the constitutional right that Plaintiff alleges Defendant interfered with (i.e., the due process right of every person to engage in a legitimate employment, business or vocation) can only be directly violated by a government actor, and 3) Defendant did not otherwise abuse or manipulate a government actor to attempt to violate said right of Plaintiff.

A claim for violation of the Bane Act can be brought by an individual against a private person, where that person interferes with the Plaintiff’s legal rights by threat, intimidation, or coercion. (Civ. Code § 52.1(a), (b).) To allege a cause of action under Civil Code section 52.1, the plaintiff must allege that “the defendant interfered with or attempted to interfere with the plaintiff’s legal right by threatening or committing violent acts.” (Doe v. State (2017) 8 Cal.App.5th 832, 842. Bane Act liability occurs when a defendant’s threats, intimidation or coercion interferes or attempts to interfere “with the exercise or enjoyment by any individual of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (Civil Code § 52.1(a); see City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077, 1082, 1085-86 [plaintiff must allege and prove that defendant interfered with plaintiff’s rights under federal or state law].) The Bane Act was enacted “to stem a tide of hate crimes” in the state. (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338.) “Although initially enacted ‘to stem a tide of hate crimes’ [Citation], ‘a plaintiff need not allege the defendant acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion’ [Citation.]” (Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1125.)

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, 882-883; see also Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [Bane Act was intended to address only egregious interferences with constitutional rights, where the act of interference with a constitutional right must itself be deliberate or spiteful, beyond just any tort, such as negligence].)

“[T]he rule is that where an action is founded on a statutory right or a right deducible wholly from statute, the plaintiff must, by his complaint, bring himself squarely and clearly within the terms or provisions of the statute upon which he relies or must rely to state a cause of action.” (Green v. Grimes-Stassforth Stationery Co. (1940) 39 Cal.App.2d 52, 56.)

Here, the FAC alleges Defendant assaulted and battered Plaintiff and prevented her from returning to work as a security guard while employed therein, and to prevent Plaintiff from returning to work as a licensed security guard, which Plaintiff had a right to do. (See Stewart v. San Mateo County (1966) 246 Cal.App.2d 273, 284-285 ["[I]t is firmly established that the right of every person to engage in a legitimate employment, business or vocation is an individual freedom secured by the due process provision of the Federal and State Constitutions."].)

Defendant argues that the right of every person to engage in a legitimate employment is secured by the due process provision of the Federal and State Constitutions. (See Stewart, supra, 246 Cal.App.2d at 284-285; see also Brecheen v. Riley, 187 Cal.121, 124-25 (1921) However, Defendant argues, private citizens, acting in their private capacities, cannot be guilty of violating due process rights. Like its federal counterpart, California’s due process clause applies only to state action and not private action. (Kruger v. Wells Fargo Bank, 11 Cal. 3d 352, 366 (1974) (holding that California’s due process clause (formerly Article I, section 13), like the due process clause of the Fifth Amendment to the federal Constitution, applied to state, not private action, even though a state action requirement was not expressly set forth therein).)

The Court agrees. In Jones v. Kmart Corp. (1998) 17 Cal.4th 329, the plaintiff had been accosted by Kmart employees, handcuffed, and searched, on suspicion of shoplifting. (Id., at 331-332.) The jury found that the employees did not act out of racial animus, but that they had deprived the plaintiff of his Fourth Amendment rights to be free from excessive force and unreasonable searches of his person. (Id., at 332.) The Court of Appeal reversed, holding that the Fourth Amendment only protects citizens from government action; since the Kmart employees were private citizens, the plaintiff had no fourth amendment rights against them. (Id., at 332-333.) The Supreme Court unanimously affirmed. (Id., at 339.) The predicate rights violation here is the right to due process, which can only be directly violated by the government or its agents. (See Kruger, supra, 11 Cal. 3d 366.) Since Defendant is a private citizen, she cannot directly violate that right.

Further, the references to Civil Code § 43, Penal Code §§ 240, 241, 242 and 243 are unavailing. As the Court stated in the ruling of Defendant’s motion for judgment on the pleadings, the statute requires a showing of threatening conduct independent from the alleged interference or violation of a civil right.” (Doe, supra, 8 Cal.App.5th 832, 842-43.) Here again, the right to be free from bodily restraint or harm, is not independent of the violence alleged.

Leave to Amend

The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff seeks leave to amend but has failed to show how the complaint can be amended successfully. Plaintiff argues now that Defendant’s intent was instead “to stop [Plaintiff] from disclosing any information about Defendant and the incident silencing her.” However, Plaintiff has not stated what law would be violated by this in order to state a cause of action under the Bane Act. As a result, the Court cannot find there is a reasonable possibility of successful amendment. As such, leave to amend is denied.

Conclusion

Based on the foregoing, Defendant’s demurrer is SUSTAINED without leave to amend.