Judge: Walter P. Schwarm, Case: 30-2021-01235189, Date: 2023-07-25 Tentative Ruling

Defendants’ (City of Costa Mesa, Officer Jacob Schulze, Officer Jose Heredia, Sergeant Patrick Wessel, and Investigator Krystal Aleman) Demurrer to Plaintiffs’ Second Amended Complaint (Demurrer), filed on 1-17-23 under ROA No. 91, is SUSTAINED.

The court GRANTS Defendants’ Request for Judicial Notice, filed on 1-17-23 under ROA No. 89, pursuant to Evidence Code section 452, subdivision (d).

“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 225 (Planning), states, “ ‘If all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer. [Citation.] In ruling on a demurrer based on res judicata, a court may take judicial notice of the official acts or records of any court in this state. [Citations].’ [Citation.]” (See also, Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.)  “In addressing the demurrers, the trial court was obliged to determine whether the petitions stated a cause of action, accepting as true all material facts properly pleaded in the petitions, and disregarding conclusions of law and allegations contrary to judicially noticed facts. [Citation.]” (Id., at pp. 225-226.)

The Demurrer challenges the third cause of action contained in Plaintiffs’ (Jessica Garten and Dru Stinson) Second Amended Complaint (SAC), filed on 12-2-22 under ROA No. 81, pursuant to Code of Civil Procedure section 430.10, subdivision (e).  (Demurrer; 1:7-21.)  The Demurrer states, “Plaintiffs’ claims of negligence, Bane Act violations and false imprisonment are based on the same actions of the City and its employees that were adjudicated in the first action and are subject to issue preclusion.” (Demurrer; 11:14-16 (Underscore in Demurrer.).)  The Demurrer also states, “As with the FAC, the allegations in the SAC fail to state a cause of action for violations under Civil Code section 52.1 (the Bane Act). Other than improper conclusory statements, the SAC contains no facts to support an interference, or attempted interference, with the Plaintiffs’ Constitution rights or laws through threats, intimidation or coercion. There are also no facts to satisfy the pleading requirement that the Defendants had a specific intent to violate Plaintiffs right to be free from an unreasonable seizure.” (Demurrer; 5:18-23.)

The third cause of action alleges in part, “As complained above, said defendants Officer Jacob Schulze, Officer Jose Heredia, Sergeant Patrick Wessel and Investigator Krystal Aleman, restrained the personal liberty of Plaintiff Dru Stinson forcing Dru Stinson to go to her bedroom while city of Costa Mesa police officers and others rummaged through their personal property and searched and seized their family home including ‘crime scene taping’ off the door of one bedroom and attempting to detain Lilyana Stinson.” (SAC, p. 6.)

Civil Code section 52.1, subdivision (b), states, “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, with the exercise or enjoyment by any individual or individuals 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, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured. An action brought by the Attorney General, any district attorney, or any city attorney may also seek a civil penalty of twenty-five thousand dollars ($25,000). If this civil penalty is requested, it shall be assessed individually against each person who is determined to have violated this section and the penalty shall be awarded to each individual whose rights under this section are determined to have been violated.”

Murchison v. County of Tehama (2021) 69 Cal.App.5th 867, 896 (Murchison), provides, “The Bane Act makes it unlawful for any person to interfere by threat, intimidation, or coercion, or attempt to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual secured by the Constitution or laws of California. [Citation.] ‘ “ ‘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.’ ” ’ [Citation.] An officer cannot claim qualified immunity under the Bane Act. [Citation.]”

Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 801–802 (Cornell), provides, “Accordingly, we hold that, where, as here, an unlawful arrest is properly pleaded and proved, the egregiousness required by Section 52.1 is tested by whether the circumstances indicate the arresting officer had a specific intent to violate the arrestee's right to freedom from unreasonable seizure, not by whether the evidence shows something beyond the coercion ‘inherent’ in the wrongful detention. [Citations].”

Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 686-687 (Meridian), states, “ ‘The law of preclusion helps to ensure that a dispute resolved in one case is not relitigated in a later case. Although the doctrine has ancient roots [citation], its contours and associated terminology have evolved over time. We now refer to “claim preclusion” rather than “res judicata” [citation], and use “issue preclusion” in place of “direct or collateral estoppel’ [citations].’ [Citation.] [¶] ‘Claim and issue preclusion have different requirements and effects.’ [Citation.] ‘Claim preclusion “prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” ’ [Citation.] ‘Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.’ [Citation.] [¶] ‘Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action.’ [Citation.] ‘[I]ssue preclusion applies (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.’ [Citation.] [¶] Even if these threshold requirements are satisfied, courts may consider the public policies underlying issue preclusion in determining whether the doctrine should be applied. [Citation.] These policies include ‘conserving judicial resources and promoting judicial economy by minimizing repetitive litigation, preventing inconsistent judgments which undermine the integrity of the judicial system, and avoiding the harassment of parties through repeated litigation.’ [Citation.]” (Italics in Meridian.)

DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN), provides, “Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action. [Citation.] There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party. [Citation.]” (Italics in DKN.)

Issue Preclusion:

The District Court’s 11-1-21 order granting in part the City of Costa Mesa’s motion for summary judgment conclusively decided the following issues: (1) Defendants’ entry into the residence was lawful under the theories of apparent consent and emergency assistance. (Ballard Decl., ¶ 3 and Exhibits 2 and 3 (Exhibit 2, pp. 14-17).); (2)  The search of the residence was not unreasonable. (Ballard Decl., ¶ 3 and Exhibits 2 and 3 (Exhibit 2, pp. 17-18).); (3) Plaintiff—Jessica Garten and L.S. (the court assumes that L.S. refers to Plaintiff—Lilyana Stinson) were not subject to a search or seizure. (Ballard Decl., ¶ 3 and Exhibits 2 and 3 (Exhibit 2, p. 18).); and (4) There was a triable issue of material fact as to whether D.S. (the court assumes that D.S. refers to Plaintiff—Dru Stinson) was the subject of a search or seizure. (Ballard Decl., ¶ 3 and Exhibits 2 and 3 (Exhibit 2, pp. 18-20).)

On 11-8-21, the District Court entered judgment in favor of the City of Costa Mesa as to Claim 1 for Unlawful Search and Seizure of Personal Property and Private Residence Under Fourth Amendment (42 U.S.C. §1983), and Claim 2 for Unlawful/Unreasonable Seizure of Person Under Fourth Amendment (42 U.S.C. §1983). (Ballard Decl., ¶ 3 and Exhibit 3.) The District Court declined to exercise supplemental jurisdiction on Plaintiffs’ state law claims, which Plaintiffs assert here. (Ballard Decl., ¶ 3 and Exhibit 3.)

Based on the SAC, it is unclear as to whether Lilyana Stinson is a party to the third cause of action.  Page 1 of the SAC does not identify Lilyana Stinson as a party to this action, but the third cause of action identifies Lilyana Stinson as a party to this action.  The Demurrer treats Lilyana Stinson as a party to this action. (Demurrer; 11:12-13.)

The court finds that issue preclusion bars the third cause of action brought by Plaintiffs—Jessica Garten and Lilyana Stinson who were both parties to the prior federal litigation. The District Court’s orders conclusively resolved issues which were actually litigated in the federal case as to whether there was a triable issue of fact as to the entry and search of the residence and the search or seizure of Plaintiffs—Jessica Garten and Lilyana Stinson. The third cause of action by Plaintiffs—Jessica Garten and Lilyana Stinson is an attempt to relitigate issues previously decided by the District Court. Therefore, issue preclusion bars the third cause of action as to Plaintiffs—Jessica Garten and Lilyana Stinson. Issue preclusion, however does not apply to the third cause of action brought by Plaintiff—Dru Stinson because the District Court did not conclusively decide the issue of whether Dru Stinson was unlawfully seized.

Therefore, the court SUSTAINS the Demurrer to the third cause of action as brought against Plaintiffs—Jessica Garten and Lilyana Stinson.

Plaintiff—Dru Stinson:

As to Plaintiff—Dru Stinson, the allegations in the SAC as to the third cause of action do not sufficiently plead that Defendants interfered by threat, intimidation, or coercion, or attempted to interfere by threat, intimidation, or coercion, with the exercise of Plaintiffs’ rights secured under by the Constitutions or laws of the United States and State of California.  Further, the third cause of action does not sufficiently plead specific intent as required by Cornell.  The SAC does not plead conduct by Defendants that is beyond the coercion that is inherent in the alleged wrongful detention.

Therefore, the court SUSTAINS the Demurrer as to the third cause of action as brought against Plaintiff Dru Stinson.

Based on the above, the court SUSTAINS Defendants’ (City of Costa Mesa, Officer Jacob Schulze, Officer Jose Heredia, Sergeant Patrick Wessel, and Investigator Krystal Aleman) Demurrer to Plaintiffs’ Second Amended Complaint, filed on 1-17-23 under ROA No. 91, without leave to amend. Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 994 (Heritage), states, “The court abuses its discretion in sustaining the demurrer without leave to amend if the plaintiff can show a reasonable possibility of curing the defect in the complaint by amendment. [Citation.] Heritage has the burden of proving that an amendment would cure the defect. [Citation.]”   The court has already granted Plaintiffs an opportunity to cure the defects identified above as to the third cause of action. (11-21-22 Minute Order.)  Plaintiffs’ Opposition, filed on 7-11-23 under ROA No. 101 does not demonstrate that there is a reasonable possibility that Plaintiffs can cure these defects by amendment.  The court ORDERS Defendants to file and serve an Answer to the SAC no later than 8-1-23.

Defendants are to give notice.