Judge: William D. Claster, Case: 22-01239759, Date: 2022-10-07 Tentative Ruling
1. Defendant Global Tel*Link Corporation's Notice of Demurrer
and Demurrer to First Amended Complaint ROA 190
2. Defendants County of Orange, Sheriff Don Barnes, and Deputy T. Carrillo's
Notice of Demurrer and Demurrer to Plaintiff's First Amended Complaint ROA
181
3. Status Conference
Before the Court are two demurrers to the First Amended Complaint (FAC) of Plaintiffs Mark Moon, et al. First, Defendants County of Orange, Sheriff Don Barnes (sued in his official and individual capacities), and Deputy T. Carrillo (the “County Defendants”) demur to all causes of action in the FAC, as well as to the class allegations therein. Second, Defendant Global Tel*Link Corporation (“GTL”) demurs to Plaintiffs’ first and tenth causes of action, and to the sixth “cause of action” (more accurately, class allegations) insofar as Plaintiffs allege the existence of a “telephone class.”
PROCEDURAL BACKGROUND
Before addressing the merits of each demurrer, the Court describes the procedural history of this matter, which is relevant to the Court’s rulings. The second page of the FAC states: “This [case] includes the state claims (and not the Federal Claims) of Moon, et al. v. County of Orange, Case No. 8:19-cv-00258-JVS-DFM, dismissed not on the merits.” The Court refers to the prior case as the “Federal Action.”
The Federal Action began as an ADA action filed by Moon against the County. Moon then filed an amended complaint adding 14 new plaintiffs, 8 new causes of action, and class action allegations. “The complaint touched on a host of jail-related issues purportedly describing violations of prisoners’ rights, including a lack religious access for prisoners, the grievance system, solitary confinement for prisoners with mental illness, the monitoring of prisoners’ phone calls, and medical negligence.” (Moon v. County of Orange (C.D.Cal. 2020) 2020 WL 6145106, at *1 (Moon I).)
The case went through repeated cycles of motions to dismiss/strike and amended complaints. Finally, on September 18, 2020, the federal court dismissed all claims against GTL with prejudice for failure to state a claim under FRCP 12(b)(6). The federal court also dismissed the claims against the County with prejudice, but under FRCP 8(a)(2), as Plaintiffs violated the requirement that a complaint be “a short and plain statement of the claim showing that the pleader is entitled to relief.” (Id., at *3-*5.) In sum, contrary to Plaintiffs’ allegation in the FAC here, the dismissal as to GTL was on the merits.
The Ninth Circuit subsequently affirmed the dismissals in an unpublished opinion. (Moon v. County of Orange (9th Cir. 2021) 2021 WL 4936945 (Moon II).)
COUNTY DEFENDANTS’ DEMURRER
The County Defendants’ demurrer is SUSTAINED. Plaintiffs are granted leave to amend as to the unnumbered causes of action titled “Habeas Corpus—Mark Moon” and “Mandamus.” As to the remaining causes of action, the Court is inclined to deny leave to amend, unless Plaintiffs are able to explain at the hearing how they can amend the complaint to state a viable claim.
The County Defendants’ unopposed request for judicial notice is GRANTED.
A. Merits of Demurrer
The County Defendants make numerous arguments in support of their demurrer. With one exception discussed below, Plaintiffs address none of these arguments in their opposition. The Court treats Plaintiffs’ failure to address the vast majority of the County’s arguments as a concession that the County’s arguments are correct, or in the alternative as a waiver of the right to contest those arguments. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.”].) Indeed, in light of Plaintiffs’ three-page opposition, the Court questions how serious they are about pursuing this litigation.
The sole exception concerns the County Defendants’ argument that the County and Barnes (in his official capacity) are immune from suit for damages under Gov. Code § 844.6, which provides, “a public entity is not liable for . . . [a]n injury to any prisoner.” Plaintiffs argue that SB 2, effective January 1, 2022, did away with this immunity for purposes of the Bane Act.
Specifically, SB2 adds the following language to the Bane Act: “The state immunity provisions provided in Section[] . . . 844.6 . . . of the Government Code shall not apply to any cause of action brought against any peace officer or custodial officer . . . or directly against a public entity that employs a peace officer or custodial officer, under this section.” (Civ. Code § 52.1(n).) Plaintiffs argue that because § 844.6 immunity no longer applies, their Bane Act claims can move forward.
The Court disagrees. Plaintiffs’ Bane Act claims accrued before January 1, 2022, a fact that is judicially noticeable because they were all pled in prior complaints in the Federal Action. (See, e.g., County RJN, Ex. 10 (Federal 4AC).) “[L]egislative provisions are presumed to operate prospectively, and . . . they should be so interpreted ‘unless express language or clear and unavoidable implication negatives the presumption.’” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.)
Nothing in the text of Civil Code § 52.1(n) says it applies retroactively. The words “retroactive” and “retroactivity” appear nowhere in the overall text of SB 2. (See generally Sen. Bill No. 2 (2021-2022 Reg. Sess.)) Plaintiffs point to nothing in the legislative history (committee analyses, etc.) that mentions retroactivity. As a result, § 52.1(n) applies only prospectively. Accordingly, to the extent the claims against the County and against Barnes in his official capacity are based on the Bane Act, they fail.
B. Leave to Amend
The first two causes of action are titled “Habeas Corpus—Mark Moon” and “Mandamus.” These causes of action do not appear to have been pled in the Federal Action. In light of California’s liberal policy of amendment, the Court will grant leave to amend as to these two new causes of action.
The remaining causes of action are another matter. The County Defendants argue the first and tenth causes of action, and the sixth insofar as it pleads a “telephone class,” were decided by final judgment on the merits in the Federal Action, and thus are barred by res judicata. However, in affirming judgment in favor of the County Defendants, the Ninth Circuit wrote, “The district court dismissed the claims against Orange County under Federal Rule of Civil Procedure 8.” (Moon II, supra, 2021 WL 4936945, at *1.) As to the County Defendants, this Court is bound by the Ninth Circuit’s statement that all claims were dismissed under FRCP 8 rather than on the merits.
But this doesn’t mean leave to amend should automatically be granted. This is Plaintiffs’ seventh complaint across two actions. The federal court “continually directed Plaintiffs to remedy noted deficiencies in their complaint,” yet their 4AC “remain[ed] as confusing and convoluted as it has in each prior iteration” and “remain[ed] largely conclusory and devoid of sufficient facts that support the allegations.” (Moon I, supra, 2020 WL 6145106 at *5.) Plaintiffs have repeatedly shown they are either unwilling or unable to correct pleading deficiencies identified by the County Defendants or the courts. As a result, the Court is inclined to deny leave to amend as to the remaining causes of action. However, at the hearing, Plaintiffs will be given an opportunity to explain how, if at all, the remaining causes of action can be amended in a manner that addresses all of the deficiencies identified by the County Defendants in their demurrer.
GTL’S DEMURRER
GTL’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. GTL’s unopposed request for judicial notice is GRANTED.
GTL demurs to the only causes of action against it: the first cause of action, the tenth cause of action, and the sixth cause of action insofar as it alleges the existence of a “telephone class.” (The sixth cause of action contains no liability allegations; instead, it appears to be class allegations.) Unlike the County Defendants, GTL was dismissed from the Federal Action on the merits and with prejudice, and that dismissal was affirmed by the Ninth Circuit. The telephone-related claims here are substantially the same as those pled in various complaints in the Federal Action. (Compare GTL RJN Exs. 2, 4, 6, 8 with FAC.) Because Plaintiffs’ telephone claims against GTL were litigated to final judgment on the merits in federal court, that judgment has a res judicata effect here. (See Franceschi v. Franchise Tax Bd. (2016) 1 Cal.App.5th 247, 257.) Their claims are barred by the judgment in the Federal Action, and the demurrer is sustained without leave to amend.
In addition, and as an alternative basis for sustaining the demurrer, the Court notes that Plaintiffs’ opposition fails to mention GTL at all, nor does it explain how SB 2’s amendment to the Bane Act would affect claims against a private party rather than a public entity. As a result, Plaintiffs have conceded the merits of GTL’s arguments, or they have waived the right to contest those arguments. In any event, the only allegation that might invoke the Bane Act as to GTL is found at ¶ 136 of the FAC, where Plaintiffs provide a laundry list of statutes “OCSD[] and Its Agents” allegedly violated, including the Bane Act. As GTL points out in reply, this allegation was found in at least four versions of the complaint filed in the Federal Action, meaning Plaintiffs’ claims are barred by res judicata.