Cynthia Gallegos v. County of Los Angeles, et al.

(1) DEMURRER TO COMPLAINT

(2) MOTION TO STRIKE

 

MOVING PARTY: Defendants County of Los Angeles and Alex Villanueva

RESPONDING PARTY(S): Plaintiff Cynthia Gallos

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

 

Plaintiff Cynthia Gallegos brings this action against Defendants County of Los Angeles and Alex Villanueva.  Plaintiff alleges she worked for the Los Angeles County Sheriff’s Department as a Secretary.  Plaintiff alleges Villanueva retaliated against her because of her perceived support for Eli Vera, who ran against Villanueva in the Sheriff’s election race.  As part of that retaliation, Plaintiff alleges Villanueva blocked her promotion for which she was qualified.

Defendants County and Villanueva now demurrer to the Complaint, and also move to strike portions therein.  Plaintiff opposed. 

TENTATIVE RULING:

Defendants’ Demurrer to the First Cause of Action is SUSTAINED as to Defendant County only. The Demurrer to the First Cause of Action is OVERRULED as to Defendant Villanueva.

Defendants’ Demurrer to the Second Cause of Action is SUSTAINED as to both Defendants.

Whether leave to amend is granted shall be determined at the hearing, based upon any sufficient offer of proof that there is a reasonable possibilty that the Complaint can be successfully amended, consistent with this ruling.

Defendants’ Motion to Strike is DENIED in its entirety.

If no leave to amend is granted, then the Defendants are to file an Answer to the Complaint within 21 days.

Moving party to give notice, unless waived.  

DISCUSSION:

Demurrer

I. Meet and Confer

The Declaration of Attorney Molshree Gupta reflects that the meet and confer requirement was satisfied.

II. 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.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  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, 147 Cal.App.4th at 747.)  

III. Analysis

A. Demurrer to First Cause of Action for Deprivation of Civil Rights, 42 U.S.C. § 1983

Defendants demurrer to the first cause of action for deprivation of civil rights, 42 U.S.C. section 1983. Defendants contend Plaintiff cannot state a cause of action against Defendant Villanueva because she has not alleged any constitutionally protected conduct. 

To state a First Amendment retaliation claim, a plaintiff must allege “that (1) [she] was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity and (3) the protected activity was a substantial or motivating factor in the defendant's conduct.” (Capp v. Cnty. of San Diego (9th Cir. 2019) 940 F.3d 1046, 1053.) 

Plaintiff alleges she worked as a Captain’s Secretary at the Los Angeles Sheriff’s Department for Eli Vera, who was “one of the candidates challenging Alex Villanueva for the position of Sheriff.” (Compl. ¶¶ 20, 21, 30.)  Plaintiff alleges that she interviewed for the position of Senior Secretary V and was informed that the three highest scoring candidates would move on to a second interview.  (Id. ¶ 24.) She was also informed she was the highest scoring candidate. (Id.) Plaintiff, however, never received a second interview. (Id. ¶ 26.)

Plaintiff alleges her failure to be promoted was a result of Defendant Villanueva retaliating against her for being Eli Vera’s secretary, and for having a “close, personal relationship with” Vera such that Villanueva allegedly assumed she was voting for Vera. (Id. ¶ 30.) Villanueva allegedly “made it clear to witnesses that he was enraged by [Plaintiff’s] support of a candidate running against [him] and that LASD would viciously retaliate against [Plaintiff] for doing so.” (Id. ¶ 45.) After retaliating against Plaintiff, Villanueva allegedly “hired an unqualified applicant [for the Secretary role] based solely on that applicant’s friendship with Villanueva’s biggest fundraiser.” (Id. ¶ 31.) 

By alleging that Villanueva retaliated against her because she “was assumed to be voting for” Villanueva’s political opponent, Plaintiff has properly alleged retaliation in violation of section 1983. (Compl. ¶ 30.) Thus, Plaintiff has alleged a protected activity.  (Mendez-Aponte v. Bonilla (1st Cir. 2011) 645 F.3d 60, 64 [noting that the “First Amendment protects public employees from adverse action due to their political affiliation.”].) 

Defendants contend, without citation to authority, that Plaintiff must also plead allegations “show[ing] why Plaintiff was presumed to be voting for Vera.” (Dem. 6: 22-23.) But a court ruling on a demurrer must construe the complaint liberally and draw all reasonable inferences from the facts pleaded. (Rodas v. Spiegel (2001) 87 Cal. App. 4th 513, 517.) Doing so here, Plaintiff has properly stated her claim.

Defendants also contend that the claim fails against the County because it cannot be liable for Villanueva’s alleged conduct. To find a local government liable under section 1983, “a plaintiff must identify a municipal policy or custom that caused the constitutional injury.” (Harman v. City & Cnty. of San Francisco (2006) 136 Cal. App. 4th 1279, 1295.) “A local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 694.)

Plaintiff alleges “[t]he County is liable for all of Alex Villanueva’s misconduct and the misconduct of other LASD employees.” (Compl. ¶ 15.) She also alleges that the County “owns, controls, supervises, manages and is responsible for the Los Angeles County Sheriff’s Department, and the County of Los Angeles is therefore directly and vicariously liable for the conduct of LASD, its official, and other employees.” (Id. ¶ 39.) 

However, Plaintiff fails to allege any “policy or custom” by which the County (and not Villanueva) routinely retaliates against employees based on their political affiliation(s).  The claim therefore fails against the County.

Accordingly, Defendants’ Demurrer to the First Cause of Action is SUSTAINED as to Defendant County only. The Demurrer is OVERRULED as to Defendant Villanueva.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment.  Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.   Plaintiff must demonstrate this possibility at the hearing consistent with this ruling.  If Plaintiff doesn’t, no leave to amend will be given.

B. Demurrer to Second Cause of Action for Violation of Civil Code § 52.1

Defendants also demurrer to the second cause of action for violation of the Bane Act, Civil Code section 52.1. 

Under the Bane Act, if a person interferes “by threat, intimidation, or coercion,” or attempts to do so, with any individual’s exercise or enjoyment of rights secured by the Constitutions or laws of the United States or California, the individual may bring a civil action for damages and other relief. (CCP § 52.1, subds. (b) & (c).)  

Defendants argue that Plaintiff has failed to allege any violence or threats of violence, which they contend is a required element of a Bane Act violation. Plaintiff disagrees that “violence” is a required element of the claim. 

The CACI civil jury instructions impose a “violence” element.  (See CACI 3066.) And the California Court of Appeal has stated on more than one occasion that a Bane Act violation requires violence or threats of violence.  (See Cabesuela v. Browning-Ferris Industries (1998) 68 Cal.App.4th 101, 111; see also Doe v. State of California (2017) 8 Cal. App. 5th 832, 842.) This court is aware of no published authority expressly holding to the contrary.  

For these reasons, the court concludes that “threatening or committing violent acts” is a required element of the claim. As Plaintiff apparently concedes, she has not pled any violent acts or threats by Defendants.  For that reason, the claim fails.  

Accordingly, Defendants’ Demurrer to the Second Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Presumably, Plaintiff would have alleged any violence or threats of violence in the Complaint had such occurred.  As such, this Court is inclined not to grant leave to amend.

Be that as it may, Plaintiff will be given an opportunity at the hearing to submit an oral offer of proof in an attempt to demonstrate such a reasonable possibility.

Motion to Strike

I. Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

II. Analysis

Defendants also move to strike the request for punitive damages from the Complaint.  (See Compl. ¶ 48 [“Plaintiff is entitled to punitive damages against Alex Villanueva”].) Defendants contend Plaintiff has failed to plead facts justifying an award of punitive damages.

Civil Code section 3294, subdivision (a) permits an award of punitive damages “for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” 

(1) “Malice” means conduct which is intended by the defendant to cause

injury to the plaintiff or despicable conduct which is carried on by the

defendant with a willful and conscious disregard of the rights or safety

of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel

and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment

of a material fact known to the defendant with the intention on the part

of the defendant of thereby depriving a person of property or legal

rights or otherwise causing injury.

As discussed in the Demurrer, Plaintiff alleges that Defendant Villanueva retaliated against her for having a “close, personal relationship with” Vera such that Villanueva allegedly assumed she was voting for Vera. (Id. ¶ 30.) Plaintiff therefore pleads facts, that if true and proven at trial, are sufficient to support a potential finding that Defendants acted with malice, oppression, or fraud. This court therefore declines to strike the request at this stage.

Accordingly, Defendants’ Motion to Strike is DENIED.

Moving party to give notice.

IT IS SO ORDERED.

Dated:   May 3, 2023 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.