Judge: Michael E. Whitaker, Case: 22STCV11753, Date: 2022-12-13 Tentative Ruling

Case Number: 22STCV11753    Hearing Date: December 13, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Jesus Mejia (“Mejia”), individually, and Estate of Theresa Martinez, by Jesus Mejia as successor in interest (collectively, “Plaintiffs”) sued defendants City of Los Angeles (“City”), Ralph Terrazas (“Terrazas”), Phillip T. Fligial (“Fligial”), Sergio Saenz (“Saenz”), and Konrad Krzywicki (“Krzywicki”) based on the death of Theresa Martinez (“Decedent”). 

Plaintiffs allege Defendants failed to render meaningful aid or to transport Decedent to the hospital, leading to her death.  Defendants City, Terrazas, Fligial, Saenz, and Krzywicki (collectively, “Defendants”) demur to Plaintiffs’ fifth cause of action for violation of the Bane Act.  Defendants also move to strike portions of the Complaint and dismiss Defendants Terrazas and Fligial.  Plaintiffs oppose the demurrer.  Defendants reply.  

            Preliminarily, the Court notes that Defendants withdrew their motions to strike and dismiss on November 30, 2022.  Thus ,the Court will address solely Defendants’ demurrer.

ANALYSIS

1. DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

1. Fifth Cause of Action: “Violation of Bane Act - Civil Code § 52.1”

    

Defendants demur to the fifth cause of action for violation of the Bane Act – Civil Code section 52.1 for failure to establish a prima facie case of a violation.; and (2) allege a constitutional violation caused by Defendants’ conduct. 

Civil enforcement of the Bane Act is brought under Civil Code section 52.1. (See Civ. Code, § 52.1, subds. (b)-(c).) The elements for a cause of action under Civil Code section 52.1 are: (1) That the defendant interfered with or attempted to interfere with the plaintiff’s constitutional or statutory right by threatening or committing violent acts; (2) That the plaintiff reasonably believed that if he exercised his constitutional right the defendant would commit violence against him or his property or that the defendant injured the plaintiff or his property to prevent him from exercising his constitutional right or retaliate against the plaintiff for having exercised his constitutional right; (3) That the plaintiff was harmed; (4) That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (See Austin B. v. Escondido Union School District (2007) 149 Cal.App.4th 860, 882.)

First, Defendants contend that the FAC fails to allege violent acts or threats of violence towards Plaintiffs as is required under Civil Code section 52.1.  In opposition, Plaintiffs argue that violence or threat of violence is not a required allegation to state a cause of action for violation of the Bane Act.  Plaintiffs attest that allegations of intimidation and coercion are sufficient, and Plaintiffs have successfully pled acts of intimidation and coercion in the FAC.  In reply, Defendants assert that the plain language of subdivision (k) of section 52.1 of the Civil Code clearly sets forth that speech alone will not support a claim under the Bane Act.

Civil Code section 52.1, subdivision (k), states in relevant part:

“Speech alone is not sufficient to support an action brought pursuant to subdivision (b) or (c), 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.”

            Put another way, “plaintiff must prove that the defendant(s) interfered (or attempted to interfere) with her rights by threats, intimidations, or coercion (and that defendant(s) did so other than by speech alone, unless the speech itself threatened violence).”  (Doe By and Through Doe v. Petaluma City School Dist. (1993) 830 F. Supp. 1560, 1582.).  As such, it must be determined first whether the interference or attempted interference of a plaintiff’s constitutional rights was done by speech alone before determining whether there is a required showing of violence or threat of violence under Civil Code section 52.1. 

            Here, Plaintiffs plead in pertinent part the following:

• On February 26, 2021, at approximately 11:39 p.m., plaintiff MEJIA called 911 because his wife, Theresa Martinez (the decedent), was in severe medical distress, including but not limited to, being disoriented, not being able to speak coherently, unable to walk, unsteady, and having difficulty breathing. They were staying at the Holiday Lodge Motel located at 1631 W. 3rd St., Los Angeles, CA. At all times herein mentioned, the decedent and MEJIA were legally married.

• Defendants, SAENZ and KRZYWICKI, arrived at the scene, but refused to render meaningful aid or to transport Ms. Martinez to the hospital despite plaintiff MEJIA pleading with them do so. Defendants took Ms. Martinez’ pulse and checked her sugar level. Ms. Martinez had recently undergone hand surgery and when Defendants forcibly grabbed her injured hand to take her blood pressure. Ms. Martinez pulled her injured hand away in pain. Defendant KRYZWICKI threatened to call the police on Ms. Martinez when she pulled her injured hand away in pain. MEJIA tried to explain that Ms. Martinez’s hand was injured and to be careful with her. Defendants SAENZ and KRYZWICKI accused Ms. Martinez of being under the influence as a pretext for not further treating her and transporting her to the hospital. Defendants also made derogatory comments about Ms. Martinez’s tattoos and intimidated MEJIA by demanding ‘papers’ (i.e., immigration documents) from him. When SAENZ and KRYCWICKI refused to transport Ms. Martinez to the hospital, MEJIA asked them to help him put his wife into his car so that he could take her to the hospital himself. Defendants refused.

• Instead, SAENZ and KRZYWICKI left the scene, abandoning Ms. Martinez and MEJIA in their time of need. On information and belief, SAENZ and KRZYWICKI discriminated against Decedent based on her race, appearance, tattoos, and based on MEJIA’s perceived immigration status because he is a Spanish speaker. MEJIA was questioned by Defendants in an intimidating fashion designed to deter him from insisting on medical help for his wife from Defendants.

• As Ms. Martinez's condition continued to worsen, MEJIA called 911 again. The same EMTs, defendants SAENZ and KRZYWICKI, returned to the motel. This time, they transported her to the hospital, but by the time she arrived there her condition had severely deteriorated and she had to be intubated due to respiratory distress.

• SAENZ and KRZYWICKI while working as EMTs (paramedics) for the CITY OF LOS ANGELES, and acting within the course and scope of their employment, by threats, intimidation, or coercion, interfered with or attempted to interfere with Martinez and MEJIA’s protected rights under California and U.S. Constitutions and state and federal law, including protections against discriminatory treatment based on race, physical appearance, right not to be denied medical care, equal protection under the law, protections against bad faith or grossly negligent conduct by emergency rescue personnel (Health & Safety Code §1799.107), and right of protection from bodily harm (Civil Code §43).

• The Defendants intended to coerce and intimidate MEJIA and Decedent Martinez from exercising their rights, threatening to call the police on Ms. Martinez and by asking intimidating questions about Decedent and about her tattoos and by demanding ‘papers’ (i.e., immigration documents) from MEJIA. By their actions and inaction, Defendants interfered with and deprived the Decedent and MEJIA of their constitutionally and statutorily protected rights against discriminatory treatment based on race and physical appearance, of equal protection, to be secure in their person and health, to receive medical treatment, to be free from the gross negligence and bad faith of emergency rescue personnel, and the right of protection from bodily harm.

(FAC, ¶¶ 11-14, 45-46.)

            The foregoing alleges Defendants interfered or attempted to interfere with Plaintiffs’ constitutional rights by withholding allegedly necessary medical care from Decedent Theresa Martinez.  The Court finds that Defendants’ acts of withholding necessary medical treatment constitute more than “speech alone”, and thus allegations of violent acts or threats of violent acts are not necessary to state a prima facie violation of the Bane Act, as long as said interference is accompanied by a form of coercion.  (See Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334; see also Venegas v. County of Los Angeles (2004) 32 Cal. 4th 820, 841-843 [“a defendant is liable if he or she interfered with plaintiff’s constitutional rights by the requisite threats, intimidation, or coercion”].)

            Here the Court finds that Plaintiffs allegations of Defendants threatening to call the police on Plaintiffs, making derogatory remarks about Decedent’s tattoos, asking for Plaintiff Jesus Mejia’s “papers”, and questioning Jesus Mejia in an intimidating fashion, sufficiently plead Defendants’ intimidation and coercion of Plaintiffs.  (See FAC, ¶¶ 12, 46.)

                Defendants next argue that Plaintiffs allegations against the Defendant EMTs amounts at the most to negligence or medical malpractice which is insufficient to constitute a constitutional violation.  The Court finds this argument to be unpersuasive as the pleaded allegations here indicate a deliberate withholding of necessary medical care rather than an inadvertent failure to provide medical care.  This is demonstrated in particular by Defendants’ refusal to take Decedent to the hospital despite Decedent’s presenting symptoms of extreme medical distress “including but not limited to, being disoriented, not being able to speak coherently, unable to walk, unsteady, and having difficulty breathing.”  (FAC, ¶ 11.)  

CONCLUSION AND ORDER

            For pleading purposes, the Court finds Plaintiffs have sufficiently alleged that Defendants interfered with or attempted to interfere with the Plaintiffs’ constitutional or statutory rights by withholding necessary medical treatment through intimidation and coercion.  The Court therefore overrules the demurrer to the fifth cause of action in the first amended complaint. 

            Defendants shall file an answer to the first amended complaint on or before December 30, 2022. 

Defendants shall provide notice of the Court’s ruling and file a proof of service of such.