Judge Richard S. Whitney, Case 37-2023-00026140-CU-CR-CTL 2024-03-15 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2023-00026140-CU-CR-CTL, Date: 2024-03-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 14, 2024

03/15/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited Civil Rights Demurrer / Motion to Strike 37-2023-00026140-CU-CR-CTL BERNAL PEREZ VS THE GEO GROUP INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: CORECIVIC DEFENDANTS' DEMURRER TO COUNTS 2 AND 4 OF PLAINTIFF'S COMPLAINT PURSUANT TO CODE CIV. PROC., §§ 430.10(e) AND 430.30(a) is SUSTAINED, in part, and OVERRULED, in part.

Defendants CoreCivic, Inc. and CoreCivic Does 31–50 ('Defendants') demur to Plaintiff Erick Bernal Perez's ('Plaintiff') claim for non-compliance with contractual standards under Government Code section 7320 and Plaintiff's Bane Act claim. When considering a demurrer, '[t]he pleading must be read as if it contained all matters of which the court could properly take judicial notice even in the face of allegations in the pleading to the contrary.' (Weiner v. Mitchell, Silberberg & Knupp (1980) 114 Cal.App.3d 39, 47.) '[W]e give the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context.' (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 564.) 'If the facts appearing in the attached exhibit contradict those expressly pleaded, those in the exhibit are given precedence.' (Id. at 567–568.) 'A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.' (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 'A complaint must contain '[a] statement of the facts constituting the cause of action, in ordinary and concise language.' (§ 425.10, subd. (a)(1).) This fact-pleading requirement obligates the plaintiff to allege ultimate facts that 'as a whole apprise[ ] the adversary of the factual basis of the claim. [Citations.]' (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 886 [Citation omitted].) Under Government Code section 7320, '[a]ny private detention facility operator shall comply with, and adhere to, the detention standards of care and confinement agreed upon in the facility's contract for operations.' (Gov. Code, § 7320(a).) 'If a private detention facility operator, or agent of a private detention facility, or person acting on behalf of a detention facility operator, commits a tortious action which violates subdivision (a), an individual who has been injured by that tortious action may bring a civil action for relief.' (Gov. Code, § 7320(c).) Plaintiff alleges that '[i]n agreeing to operate the OMDC, CoreCivic entered into a contract for operations with the U.S. Marshals Service. Upon information and belief, that contract required CoreCivic to operate the Facility in compliance with various standards, including standards that require CoreCivic to reasonably protect individuals in their care and custody from known threats to their safety, similar to the standards mandated by the contract between the WRDF and the U.S. Marshals Service.' (Complaint, ¶ 56.) 'Due to the ongoing omission on the separatee list, Mr. Bernal was placed in the same housing pod as Mr. Askay in the OMDC, and Mr. Askay coordinated another violent assault upon Mr. Bernal.' (Complaint, ¶ 58.) Plaintiff goes on to allege Defendants failed 'to comply with the standards of care governing classification and safety.' (Complaint, ¶ 59.) Calendar No.: Event ID: TENTATIVE RULINGS

3072866 48 CASE NUMBER: CASE TITLE: BERNAL PEREZ VS THE GEO GROUP INC [IMAGED] 37-2023-00026140-CU-CR-CTL Defendants assert the allegations are too general. Defendants take issue with the lack of specificity as to what the 'standards' are that they allegedly failed to follow. The Court finds the allegations are sufficient to put Defendants on notice of the nature of the claim, especially given that Defendant should be aware of the 'standards' they are required to follow. Further, Plaintiff does provide some level of specificity by indicating Defendants failed to 'reasonably protect individuals in their care and custody,' including Plaintiff. The Court finds Plaintiff has alleged the legal effect and substance of the relevant terms.

(McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) Further, Defendants assert a lack of standing as a third-party beneficiary, but the action is based on a statutory right under Government Code section 7320(c). The argument fails. Finally, this claim differs from the negligence claim as it is based on a statute that provides the Court 'in its discretion, may award the prevailing plaintiff reasonable attorney's fees and costs, including expert witness fees.' (Gov. Code, § 7320(c).) The demurrer is overruled as to the second cause of action under Government Code section 7320.

Defendants assert the Bane Act cause of action (fourth) fails because Plaintiff does not allege acts constituting violence or threats of violence. The elements of a Bane Act claim are stated in CACI No.

3063: 1. [That by threats, intimidation or coercion, [name of defendant] caused [name of plaintiff] to reasonably believe that if [he/she/nonbinary pronoun] exercised [his/her/nonbinary pronoun] right [insert right, e.g., 'to vote'], [name of defendant] would commit violence against [[him/her/nonbinary pronoun]/ [or] [his/her/nonbinary pronoun] property] and that [name of defendant] had the apparent ability to carry out the threats;] [or] [That [name of defendant] acted violently against [[name of plaintiff]/ [and] [name of plaintiff]'s property] [to prevent [him/her/nonbinary pronoun] from exercising [his/her/nonbinary pronoun] right [e.g., to vote]/to retaliate against [name of plaintiff] for having exercised [his/her/nonbinary pronoun] right [e.g., to vote]];] [2. That [name of defendant] intended to deprive [name of plaintiff] of [his/her/nonbinary pronoun] enjoyment of the interests protected by the right [e.g., to vote];] 3. That [name of plaintiff] was harmed; and 4. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

(CACI 3066.) '[W]here coercion is inherent in the constitutional violation alleged, as it is in an unreasonably prolonged detention, section 52.1 requires a showing of coercion independent from the coercion inherent in the wrongful detention.' (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 68.) However, another court stated: By its plain terms, Section 52.1 proscribes any 'interfere[nce] with' or attempted 'interfere[nce] with' protected rights carried out 'by threat, intimidation or coercion.' Nothing in the text of the statute requires that the offending 'threat, intimidation or coercion' be 'independent' from the constitutional violation alleged. Indeed, if the words of the statute are given their plain meaning, the required 'threat, intimidation or coercion' can never be 'independent' from the underlying violation or attempted violation of rights, because this element of fear-inducing conduct is simply the means of accomplishing the offending deed (the 'interfere[nce]' or 'attempted ... interfere[nce]'). That is clear from the structure of the statute, which reads, 'If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion,' a private action for redress is available. (§ 52.1, subd. (a), italics added.) (Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 799–800.) 'A defendant is liable [under the Bane Act] if he or she interfered with or attempted to interfere with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion.' (Shoyoye, supra, 203 Calendar No.: Event ID: TENTATIVE RULINGS

3072866 48 CASE NUMBER: CASE TITLE: BERNAL PEREZ VS THE GEO GROUP INC [IMAGED] 37-2023-00026140-CU-CR-CTL Cal.App.4th at p. 956, 137 Cal.Rptr.3d 839; see Venegas, supra, 32 Cal.4th at pp. 841-843, 11 Cal.Rptr.3d 692, 87 P.3d 1.) '[T]he statute was intended to address only egregious interferences with constitutional rights, not just any tort. The act of interference with a constitutional right must itself be deliberate or spiteful.' (Shoyoye, at p. 959, 137 Cal.Rptr.3d 839.) (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 395.) '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.' (Civ. Code, § 52.1(k).) Plaintiff alleges 'Defendant CoreCivic Does 31-50 knew that Mr. Bernal was the victim of the attack on June 15, 2021, at the WRDF, that Gabriel Askay was one of the assailants, and that Mr. Askay remained a serious threat to Mr. Bernal's safety. Further, Mr. Bernal informed Defendant CoreCivic Does 31-50 that Mr. Askay was missing from his separatee list. But Defendant CoreCivic Does 31-50 intentionally refused to add Mr. Askay to Mr. Bernal's 'separatee list,' which perpetuated the substantial risk that Mr.

Bernal would suffer serious harm.' (Complaint, ¶ 74.) 'Defendant CoreCivic Does 31-50 interfered with Mr. Bernal's Fifth Amendment right to be protected while in custody by threats, intimidation, or coercion.' (Complaint, ¶ 72.) Plaintiff does not allege CoreCivic, rather than other detainees (specifically Mr. Askay), affirmatively acted to intimidate or coerce Plaintiff. Further, it appears a claim may not be made based on alleging aiding and abetting of others who committed the acts of threats, intimidation, or coercion. (Judicial Council Of California Civil Jury Instruction 3066; Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334-337.) 'The rights guaranteed in section 51.7 apply against private actors, not just those whose conduct is chargeable to the state, and as long as interference or attempted interference with them is accompanied by threats, intimidation, or coercion, section 52.1 provides remedies for that misconduct.' (Jones, supra, 17 Cal.4th at 338.) The Court cannot find a case where the Bane Act was found applicable where the defendant did not themselves perform the threatening, intimidating, or coercion. Plaintiff has not alleged Defendants themselves engaged in any conduct that amounted to threatening, intimidating, or coercion.

At best, Plaintiff alleges Defendants failed to prevent a third party from acting violently when they should have known there was a 'substantial risk that Mr. Bernal would suffer serious harm.' (Complaint, ¶ 74.) The Court cannot find such an omission amounts to an egregious interference with Plaintiff's rights by means of coercion.

This case is more closely analogous to Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, than it is to Cornell. Plaintiff has not alleged facts to support that Defendants had a specific intent to violate Plaintiff's right to freedom from a constitutional violation. (Cornell, supra, 17 Cal.App.5th at 801–802.) At best, Plaintiff alleges Defendants failed to act knowing there was a risk a third party would violate Plaintiff's constitutional right. The demurrer is sustained as to the Bane Act cause of action.

Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion [...] Liberality in permitting amendment is the rule....' (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-04.) The face of the complaint does not indicate that it is incapable of being amended. Therefore, the Court grants Plaintiff ten (10) days leave to amend the complaint.

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