2016-00195759-CU-DF

Nabil Samaan vs. Mark Rains

Nature of Proceeding: Hearing on Demurrer to the 2nd Amended Complaint

Filed By: McDermott, Amanda L.

Defendant Mark Rains and County of Sacramento’s (collectively, “Defendants”) demurrer to the second, fourth, fifth and sixth causes of action in Plaintiff Nabil Samaan’s Second Amended Complaint (“SAC”) is ruled upon as follows.

Defendants’ request for judicial notice of Plaintiff’s tort claim submitted to the County, additional documents filed in this action, and some of the Court’s prior minute orders in this action is granted.

Plaintiff’s request for judicial notice of documents filed in this action and the Court’s prior minute order in this action is granted.

This action arises from an alleged defamatory statement made via email by defendant Mark Rains, a county employee. Plaintiff alleges that he has been a licensed attorney in California in good standing for over 20 years and that he has several businesses in Sacramento, including his law office. He alleges that on February 16, 2016, Mr. Rains published a false statement in an email to five people that Plaintiff was “a threat to County personnel.” Plaintiff alleges this statement prevented him from completing his construction project and caused his permit to carry a concealed weapon (“CCW permit”) to be revoked by the Sacramento County Sheriff’s Department. Plaintiff also alleges Mr. Rains retaliated against him for exercising his right to free speech by filing a lawsuit against the County and that Mr. Rains interfered with the use of his property by levying various ordinances and interfering with his construction project.

On January 18, 2018, the Court sustained Defendants’ demurrer to the First Amended Complaint (“FAC”) without leave to amend as to the claim for violation of Sacramento County Ordinance section 9.20.010, and sustained the demurrer with leave to amend as to the claim for violation of Civil Code section 52.1. Plaintiff filed his SAC on January 29, 2018.

Defendants demur on the grounds that Plaintiff has failed to state a valid cause of action for violation of Civil Code section 52.1, negligence, negligent infliction of emotional distress, and violation of his constitutional rights.

Second Cause of Action for Violation of Civil Code Section 52.1

Civil Code section 52.1 (the “Bane Act”) generally provides individuals protection against interference with state or federal statutory rights or constitutional rights from interference by threats, intimidation, or coercion. A plaintiff alleging a Bane Act violation must specify a constitutional right with which the defendant allegedly interfered by threatening or committing violent acts. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882 (citing right to free public education guaranteed by Cal. Const., art. IX, § 5); CC §52.1.)

The Bane Act provides that speech alone is not sufficient to constitute a violation unless it involves a credible threat of violence. (Civ. Code § 52.1(j).) This limitation would appear to foreclose a claim based on threats, intimidation, or coercion involving a nonviolent consequence. (See Cabesuela v. Browning-Ferris Industries (1998) 68 Cal.App.4th 101, 111 [to state a cause of action under Bane Act there must first be violence or intimidation by threat of violence].)

Further, the elements of a cause of action under Civil Code section 52.1 are stated in CACI No. 3066 as follows: “That defendant made threats of violence against plaintiff causing plaintiff to reasonably believe that if [he/she] exercised [his/her] right [insert right, e.g., “to vote”], defendant would commit violence against [[him/her]/ [or] [his/her] property] and that defendant had the apparent ability to carry out the threats;] [or]

defendant acted violently against plaintiff / [and] plaintiff’s property [to prevent [him/her] from exercising [his/her] right [insert right]/to retaliate against plaintiff for having exercised [his/her] right [insert right]];] 2. That plaintiff was harmed; and 3.That defendant’s conduct was a substantial factor in causing [name of plaintiff]’s harm.”

Previously, the Court sustained Defendants’ demurrer with leave to amend on the grounds that Plaintiff failed to allege any interference with a specific constitutional or statutory right. Defendants argue the SAC has not remedied this defect. However, the SAC now raises allegations regarding interference with Plaintiff’s First, Second, and Fourteenth Amendment rights. Nonetheless, the Court agrees that Plaintiff fails to state any link between purported threats of violence or violence by Mr. Rains and interference with these constitutional rights.

Plaintiff alleges Mr. Rains voiced and treated Plaintiff with animosity (SAC ¶ 32), levied frivolous citations against his property (SAC ¶ 33), wrongfully attached a lien on his property (SAC ¶ 35), made defamatory and disparaging statements about Plaintiff (SAC ¶ 35), intimidated engineers working on his property causing one of them to quit (SAC ¶ 36), refused to review plans submitted by Plaintiff’s engineers (SAC ¶ 36), and published an email to County employees stating that he was going to “WWF” Plaintiff (SAC ¶ 39).

None of the alleged acts constitute the requisite threat, intimidation, or coercion required to set forth a section 52.1 action. As noted above, speech alone is insufficient to support a violation of section (a) or (b) of Civil Code section 52.1, unless the speech itself threatens violence. This also implies that any intimidation or coercion must involve an element of violence.

There are no allegations indicating how any statements made by Mr. Rains in any way threatened violence. In fact, although Plaintiff continues to allege Mr. Rains published an email stating that he was going to “WWF” Plaintiff, Plaintiff still expressly alleges the email was published to County personnel and he does not allege the email was sent to him or that the content of the email was ever communicated to him. Nor does he allege the statement that Rains would go “WWF” on Plaintiff prevented him from exercising any right. Moreover, treating Plaintiff with animosity, intimidating individuals working for Plaintiff, and levying frivolous citations are insufficient to state a claim as there are no allegations indicating how these actions involve anything beyond nonviolent consequences.

As a result, the demurrer to the Civil Code section 52.1 claim is SUSTAINED without leave to amend.

Fourth Cause of Action for Negligence

The demurrer as to the fourth cause of action is DROPPED.

“A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” (Code Civ. Proc. § 430.41(b).)

Defendants demurred to this cause of action in the FAC on the grounds that it was

barred by the Government Torts Claim. Defendants could have, but did not demur, to this cause of action on the ground they now raise. Defendants are, therefore, barred from doing so now.

Fifth Cause of Action for NIED

The demurrer as to the fifth cause of action is DROPPED. Defendants demurred to this cause of action in the FAC on the grounds that it was barred by the Government Torts Claim. Defendants could have, but did not demur, to this cause of action on the ground they now raise. Defendants are, therefore, barred from doing so now. (Code Civ. Proc. § 430.41(b).)

Sixth Cause of Action for Violation of Constitutional Rights

The demurrer as to the sixth cause of action is DROPPED. This cause of action was also asserted in the FAC, but Defendants did not previously demur to it. Defendants now demur on the grounds that, pursuant to stipulation, this cause of action was dismissed with prejudice. (RJN, Exh. 3 at ¶ 10.) This ground could have been raised in the demurrer to the FAC, but it was not. Thus, Defendants are now barred from doing so.

Conclusion

The demurrer as to the second cause of action is SUSTAINED without leave to amend.

The demurrer as to the third, fifth, and sixth causes of action is DROPPED pursuant to Code Civ. Proc. § 430.41(b).

No later than April 16, 2018, Defendants shall file and serve their answer to the SAC.