Judge Matthew C. Braner, Case 37-2019-00020094-CU-CR-CTL 2024-03-29 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2019-00020094-CU-CR-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Civil Rights Demurrer / Motion to Strike 37-2019-00020094-CU-CR-CTL DOE VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant County of San Diego's demurrer to the third amended complaint is SUSTAINED in part, and OVERRULED in part.

A demurrer shall be sustained if the complaint 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10(e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to Plaintiff Jane Doe's first cause of action for invasion of privacy and second cause of action for violation of the Bane Act. As to the first cause of action, Defendant argues the TAC does not allege facts sufficient to establish that Defendant Timothy Wilson accessed and took possession of Plaintiff's private information (thereby violating her privacy) within the scope of his employment. At this stage on demurrer, the court disagrees.

Defendant relies primarily on Perry v. County of Fresno (2013) 215 Cal.App.4th 94 to support its argument. In that case, a county correctional officer (Vital) had access to the private information of inmates and had been sued by the plaintiff after the plaintiff was injured in an automobile accident involving a car owned by Vital and driven by his stepson. Vital used his access to inmate records to send false and threatening letters (some sent as if from an inmate, others as if from the plaintiff to inmates with racially inflammatory remarks). The court of appeal affirmed the trial court's grant of summary judgment against the plaintiff's claim for invasion of privacy and emotional distress because '[t]he tort in this case is not simply the improper use of information obtained from the County's computer system, but the use of that information by Vital for illegal personal purposes.' (Perry v. County of Fresno, supra, 215 Cal.App.4th at p. 101.) Thus, although Vital's access to the records was an outgrowth of his employment, the use of those records to send threatening letters (some of which resulted in actual threats of violence to the plaintiff's family) was not.

Here, Plaintiff's claim is distinguishable from the Perry case because Plaintiff's claim invasion of privacy is based entirely on Defendant Wilson's access to Plaintiff's private information and his possession of it, not the use of the information to engage in further wrongful conduct. The plaintiff in Perry also was not the person whose sensitive information was unlawfully accessed, unlike the situation in this case. The court in Perry also emphasized that holding the county vicariously liable would not prevent recurrence of Calendar No.: Event ID: TENTATIVE RULINGS

3074710 12 CASE NUMBER: CASE TITLE: DOE VS COUNTY OF SAN DIEGO [IMAGED] 37-2019-00020094-CU-CR-CTL the particular tortious conduct because Vital needed to access the information to do his job, and the county already had policies in place 'that prohibit the dissemination or malicious access of this information and subject an employee to termination for misuse of the information.' (Perry v. County of Fresno, supra, 215 Cal.App.4th at p. 104.) Although Defendant here may well be able to show it too had similar policies in place, this factual consideration is more appropriately addressed on a motion for summary judgment or at trial.

Accordingly, the demurrer is overruled as to the first cause of action.

As to the second cause of action for violation of the Bane Act founded on Defendant Wilson's access to and possession of Plaintiff's private information, Defendant argues the TAC fails to plead any facts that Defendant Wilson's interference with Plaintiff's right to privacy was accompanied by threats, intimidation, or coercion. (Civ. Code, § 52.1, subd. (b) ['If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, . . . .'].) The court agrees.

'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.' (Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 792 [quoting Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1125].) Here, the TAC not only lacks factual allegations that Defendant Wilson obtained the private information through threats, intimidation, or coercion, or that he used such private information to threaten, intimidate, or coerce Plaintiff in some manner, the TAC does not allege Defendant Wilson directly interacted with Plaintiff at all between the date of the sexual assault on March 21, 2018 and the day he was arrested on May 18, 2018. The court rejects Plaintiff's attempt to convert the requirement that a violation of rights be accompanied by 'threats, intimidation, or coercion' into simply a requirement the violation be 'intended'; neither the language of the statute, nor Plaintiff's proffered case authority, support her argument. (See Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th at p. 794, 800-804 [affirming jury decision on Bane Act claim because the plaintiff was the victim of a false arrest that 'was carried out with threats of violence and was just the start of a series of events suggesting an intent to demean him and set him up for termination,' and emphasizing that '[m]uch of what law enforcement officers do in settings that test the limits of their authority is 'inherently coercive.''].) Accordingly, the demurrer is sustained as to the second cause of action.

The court is inclined to sustain the demurrer as to the second cause of action without leave to amend, as Plaintiff has not demonstrated the defect is curable by amendment. It also appears to the court that sufficient factual allegations to state a claim under the Bane Act would likely fall outside the scope of Plaintiff's government claim presentation. Nonetheless, the court will hear from the parties on this issue.

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