2019-00255376-CU-PO

Wanda Cleveland vs. County of Sacramento

Nature of Proceeding: Hearing on Demurrer to Plaintiff’s First and Second Cause of Action

Filed By: Fessenden, Carl L.

*** Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov. ***

Defendants’ demurrer to the first and second causes of action alleged in plaintiff’s

complaint is SUSTAINED IN PART and OVERRULED IN PART, as follows.

Plaintiff’s counsel failed to comply with CRC Rule 3.1110(b)(3)-(4).

Factual Background

This action arises from an incident occurring during a demonstration. The complaint alleges that an on-duty Sheriff’s Deputy driving a law enforcement vehicle struck the plaintiff as she was crossing in front of the Deputy’s vehicle. Plaintiff alleges that the impact was within the Deputy’s unobstructed field of vision and that numerous witnesses screamed and cried in response. Nevertheless, the Deputy nevertheless immediately fled the scene of the impact without slowing and without reporting the incident to the CHP.

The complaint purports to assert causes of action for unreasonable force in violation of Article I, §13 of the California Constitution; violation of the Bane Act (Civ. Code §52.1 (b)); assault & battery; intentional infliction of emotional distress; and negligence.

Moving Papers. Defendants now demur to the first cause of action on the grounds that there is no private right of action under Article I, §13 of the California Constitution and that plaintiff has failed to plead facts sufficient to state a cause of action thereunder. They also contend the complaint fails to allege facts necessary to plead a violation of the Bane Act.

Opposition. Plaintiff argues that the California Supreme Court has not yet decided whether there is a private right of action for damages under Article I, §13 (which protects individuals from unreasonable searches and seizures) and federal courts are divided on this issue, thereby mandating the legal analysis set forth in the California Supreme Court’s decision of Katzberg v. Regents of the Univ. of California (2002) 29 Cal.4th 300. The opposition insists that such analysis supports the conclusion that a private action for damages should be recognized and that the demurrer fails to demonstrate the facts currently alleged in the complaint are insufficient to state an unreasonable force claim. Moreover, plaintiff contends that a “seizure” within the meaning of the Fourth Amendment can be accomplished with a patrol vehicle when done “through means intentionally applied.” With respect to the Bane Act claim, the opposition asserts that the complaint adequately pleads the elements of a violation of constitutional rights accomplished by the defendant’s specific intent to violate those rights.

Reply. Defendants maintain the opposition’s suggestion that there is a private right of action under Article I, §13 is not supported by any pertinent legal authority and actually contradicts several California federal court decisions addressing the question. The reply adds that even if there were a private right of action under Article I, §13, the complaint does not actually establish that the defendant Deputy acted intentionally so as to effect an unlawful seizure and plaintiff’s arguments, if believed, would effectively result in all collisions involving police vehicles to give rise to a constitutional violation. Finally, defendants argue that the mere fact the subject incident occurred within the Deputy’s unobstructed field of view does not satisfy the requirement for intentional violation of constitutional rights.

Analysis

Article I, §13. This provision of the California Constitution generally prohibits unreasonable searches and seizures and the parties appear to agree that no California state appellate court has yet resolve the question of whether there is a private right of action for damages based on a violation of §13. According to Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, the federal courts which have considered the question are divided. (Id., at 392.) This Court has reviewed and considered a number of these federal decisions which cannot be reconciled but in light of the commentary by the California Supreme Court in Katzberg relating to England’s recognition of a common law civil damage remedy for victims of unlawful searches and other states’ acceptance of an implied remedy in damages for search and seizure violations (Katzberg, supra, 29 Cal.4th at 323-324), this Court is persuaded that California law will more likely be shown to support a civil claim for damages suffered as a result of a violation of §13. Accordingly, defendants’ first ground for demurring to the Article I, §13 cause of action (i.e., no tort damages remedy) shall be overruled.

On the other hand, the Court will sustain the demurrer on the ground that the complaint fails to plead facts sufficient to establish a violation of Article I, §13. As noted above, the essence of this case is that, while plaintiff was participating in a demonstration, she was struck by a Deputy’s vehicle. The Deputy left the scene of the impact without slowing and without reporting the incident to the CHP. But such allegations do not, without more, demonstrate the violation of Article I, §13.

While the opposition contends that a seizure can be accomplished with a patrol vehicle, plaintiff concedes as she must that the authorities cited for this proposition clarify that a seizure within the meaning of the Fourth Amendment does not occur whenever there is a governmentally caused termination of one’s freedom movement. Instead, according to the U.S. Supreme Court, there is a constitutional violation “only when there is a governmental termination of freedom of movement through means intentionally applied.” (Brower v. County of Inyo (1989) 489 U.S. 593, 596-597 (italics in original).) The problem here is that the complaint is presently devoid of facts which tend to show the Deputy driving the vehicle intentionally maneuvered it in such a way so as to interfere with plaintiff’s freedom of movement.

Notably, one of the authorities offered by plaintiff actually undermines her claim that the Deputy’s operation of the vehicle which struck plaintiff amounted to unconstitutional conduct. In Nelson v. City of Davis (9th Cir. 2012) 685 F.3d 867, the questions presented were whether the defendants use of “pepperball” guns which caused the plaintiff’s eye injury violated the latter’s right to be free from unreasonable seizures and whether the contours of this right were sufficiently established that a reasonable officer would have been aware that the conduct was unconstitutional. (Id. at 872.) Before determining that the defendants’ actions amounted to an unconstitutional seizure and they were not under the circumstances entitled to qualified immunity, the Ninth Circuit considered the meaning and application of the “through means intentionally applied” standard. (Id. at 875-878.) Among other things, the it highlighted “the distinction between intentional and unintentional conduct that the Supreme Court has repeatedly held as determinative of the Fourth Amendment analysis.” (Id. at 876.) The Ninth Circuit stated, in pertinent part:

To constitute a seizure, the governmental conduct must be purposeful, and cannot be an unintentional act which merely has the effect of restraining the liberty of the plaintiff. [Compare Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843-44…(1998) (no seizure occurred when police car unintentionally ran over a

passenger who fell from a fleeing motorcycle during chase) and United States v. Al Nasser, 555 F.3d 722 (9th Cir. 2009) (no seizure occurred when police signaled to driver to continue driving and he misinterpreted signal and stopped), with Brower v. Cnty. of Inyo 489 U.S. 593…(1989) (seizure occurred when fleeing driver hit road block intentionally erected by the police), and Brendlin, 551 U.S. 249… (seizure of passenger occurs when car stopped by police for the purpose of detaining the driver).]

The intentionality requirement is satisfied when the “termination of freedom of movement [occurs] through means intentionally applied.” [Brower, 489 U.S. at

597 (emphasis in original).] In the Court’s opinion in Brower, such willful

conduct is contrasted with the unknowing and unintentional act of accidentally pinning a fleeing felon to a wall with a police car when the brakes of an unoccupied police vehicle failed. For an act to be unintentional, the governmental conduct must lack the element of volition; an absence of concern regarding the ultimate recipient of the government’s use of force does not negate volition. As Brendlin stated, “‘an unintended person…[may be] the object of the detention,’ so long as the detention is ‘willful’ and not merely the consequence of ‘an unknowing act.’” [Id. at 254 (quoting Brower, 489 U.S. at 596).] Regardless of whether Nelson was the specific object of governmental force, he and his fellow students were the undifferentiated objects of shots intentionally fired by the officers in the direction of that group. Although the officers may have intended that the projectiles explode over the students’ heads or against a wall, the officers’ conduct resulted in Nelson being hit by a projectile that they intentionally fired towards a group of which he was a member. Their conduct was intentional, it was aimed towards Nelson and his group, and it resulted in the application of physical force to Nelson’s person as well as the termination of his movement. Nelson was therefore intentionally seized under the Fourth Amendment.

(Id. at 876-877.) Of particular significance here is that although an unintended person may be the object of the detention, this is only true where the detention is “willful and not merely the consequence of an unknowing act.” (Id. at 876.) The complaint in the case at bar fails to establish that the Deputy’s alleged detention of plaintiff was the result of a “willful” act and not the result of “an unknowing act.”

Plaintiff’s reliance on several cases cited in her opposition at page 12:6-11 is misplaced. None of these opinions represents precedent which is binding on this Court and in any event, the facts of the sole opinion written by a court based in California are plainly distinguishable from the case at bar inasmuch that case involved a police vehicle that struck the decedent during a chase after the latter fled from an attempted traffic stop. (Toscano v. City of Fresno (E.D. Cal. 2015) 2015 U.S.Dist. Lexis 97018, *2 -3.) The complaint in the present action does not describe any facts or circumstances analogous to Toscano.

Finally, in Brendlin v. California (2007) 551 U.S. 249, the U.S. Supreme Court pointed out that “[w]hen the actions of the police do not show an unambiguous intent to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not.” (Id. at 254-255.) That test was originally devised by Justice Stewart in United States v. Mendenhall (1980) 446 U.S. 544, stating that a seizure occurs if “in view of all of the circumstances

surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Brendlin, supra, 551 U.S. at 255 (citing Mendenhall, supra, 446 U.S. at 554).) This test was subsequently adopted by the Supreme Court, with the addition that when a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” (Brendlin, supra, 551 U.S. at 255 (citing Florida v. Bostick (1991) 501 U.S. 429, 435-436).) When this test is applied to the facts currently alleged in the complaint, this Court is unable to conclude a reasonable person in plaintiff’s position would not have felt free to “terminate the encounter” particularly when the plaintiff’s own allegations indicate the sole Deputy involved in “the encounter” left the scene “immediately.”

For these reasons, the Court holds that the complaint currently lacks facts necessary to demonstrate the existence of a violation of Article I, §13’s provisions.

Bane Act. Civil Code §52.1 provides in pertinent part:

(b) If a person…, 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…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. …

(c) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages… .

According to Cornell v. City and County of San Francisco (2017) 234 Cal.App.5th 766, a decision cited by both sides, the term “interferes” has been construed as meaning “violates” and thus, the essence of a claim under §52.1 is that the defendant, by improper “threats, intimidation or coercion” tried to or did prevent the plaintiff from doing something s/he had the legal right to do or to force the plaintiff to do something s/he was not legally required to do. (Id. at 791-792 [cites omitted].) After rejecting the notion adopted by Second District Court of Appeal in Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947 that §52.1 requires some act of coercion, threat or intimidation independent of the coercion otherwise inherent in a wrongful detention, the First District Court of Appeal in Cornell held that “the egregiousness required by Section 52.1 is tested by whether the circumstances indicate the…officer had a specific intent to violate the [plaintiff’s] right to freedom from unreasonable seizure, not by whether the evidence shows something beyond the coercion ‘inherent’ in the wrongful detention” and that the appropriate standard to judge whether the requisite “specific intent” is the one first enunciated in Justice Douglas’s plurality opinion in Screws v. United States (1945) 325 U.S. 91, a standard which “accomplishes in substance the same thing as the independent from inherent coercion test since it ensures ordinary negligence is not cognizable under Section 52.1.” (Cornell, at 801-802 [cites omitted].)

As explained in People v. Lashley (1991) 1 Cal.App.4th 938, the Screws test essentially sets forth two requirements for a finding of “specific intent.” The first is a purely legal determination, which asks: is the right at issue is clearly delineated and plainly applicable under the circumstances of the case? If the trial judge concludes that it is, then the jury must make the second, factual, determination: Did the defendant commit the act in question with the particular purpose of depriving the citizen victim of his/her enjoyment of the interests protected by that right? If both requirements are met, the defendant will be adjudged as a matter of law to have acted “willfully” and “in reckless disregard of constitutional [or statutory] prohibitions or guarantees” even if s/he defendant did not in fact recognize the unlawfulness of his/her conduct. (Id., at 948-949.)

The Court finds that the Bane Act cause of action includes allegations which appear to satisfy both prongs of the Screws test. First, Paragraph 30 plainly refers to plaintiff’s constitutional right to be free from excessive and unreasonable force and second, contrary to defendants’ suggestion, Paragraph 30 expressly alleges that the Deputy driving the vehicle committed the act in question “with specific intent to deprive [plaintiff] of her rights protected by the Fourth Amendment…” While the latter contention borders on being impermissibly conclusory, the Court holds it is sufficient under the circumstances to plead an otherwise valid claim under the Bane Act and therefore, defendants’ demurrer to the second cause of action shall be overruled.

Disposition

As explained above, defendants’ demurrer to the first cause of action is sustained in part and overruled in part, while the demurrer to the second cause of action is overruled.

Where the demurrer is sustained, leave to amend is granted as this is the first challenge to the complaint. Plaintiff may file and serve an amended complaint no later than October 4, 2019. Although not required by court rule or statute, plaintiff is directed to present a copy of this order when the amended complaint is presented for filing.

Defendants to respond within 30 days if the amended complaint is personally served, 35 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)