Case Number: EC068236 Hearing Date: June 15, 2018 Dept: NCD

TENTATIVE RULING

Calendar: 3

Date: 6/15/18

Case No: EC 068236 Trial Date: None Set

Case Name: Recinos, et al. v. White

DEMURRER

[CCP §430.10 et. seq.]

Moving Party: Defendant Scala White

Responding Party: Plaintiffs Miriam Recinos, and Alan Isaac Orellana-Recinos

and Aaron Isaiah Orrellana-Recinos, through their GAL

RULING:

Demurrer is OVERRULED to the first cause of action for interference with easement, second cause of action for Bane Act violation, and third cause of action for assault.

Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND to the fourth cause of action for violation of Penal Code § 422.6.

Request for Judicial Notice is DENIED, as the moving party has failed to attach the matters to be judicially noticed to the Request. This case has not been deemed related to the cases referred to as “related,” and the files are not before this court. In addition, in connection with court records, while the court is authorized to take judicial notice of the existence of documents in a court file, it may not take judicial notice of the truth of any hearsay allegations contained in these documents, just because they are part of a court record. Day v. Sharp (1975) 50 Cal.App.3d 904, 914.

Ten days to answer.

Meet and Confer? Ok

RELIEF REQUESTED:

Sustain demurrer to Complaint

CAUSES OF ACTION: from Complaint

1) Interference with Easement

2) Tom Bane Civil Rights Act

3) Assault

4) Tortious Violation of Penal Code § 422.5

SUMMARY OF FACTS:

Plaintiff Miriam Recinos alleges that she and defendant Scala White are each owners of condominiums in Pasadena, both of which are part of the same development, so that plaintiff and defendant each own an undivided interest in the common area that affords ingress and egress to the condominium of plaintiff. Plaintiff alleges that plaintiff owns an easement comprised of common ownership of a driveway that allows plaintiff to gain ingress or egress from Summit Avenue to her residence, but that defendant has built a gate through the area of the easement, that, if locked, prevents plaintiff from gaining access to her residence. Plaintiff alleges that defendant has unreasonably interfered with and obstructed plaintiff’s easement by locking the gate or parking defendant’s care in the middle of the easement and blocking access.

Plaintiff also alleges that defendant has violated her civil rights by maintaining the fence and using physical threats and making comments and gestures to plaintiff threatening violence against plaintiff due to her race.

Plaintiffs Alan Orellana-Recinos and Aaron Orellanq- Recinos, the minor sons of plaintiff Recino, allege that in January of 2018, defendant drove her car pointed directly at the yard where plaintiffs were playing in such a manner that it appeared that defendant’s car was going to run the plaintiffs over, putting them in fear and apprehension of a deadly, harmful and offensive contact.

ANALYSIS:

First Cause of Action—Interference with Easement

Statute of Limitations

Defendant argues that the first cause of action is barred by the applicable statute of limitations.

A demurrer on the ground a cause of action is barred by the statute of limitations should be sustained only where the facts alleged on the face of the complaint “clearly and affirmatively” show that the cause of action is barred. It is not enough that the complaint might be barred. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403. See Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324 (“A general demurrer based on statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. (Citation omitted.) The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred.”)

Moreover, it is held that if a complaint alleges wrongful conduct commencing at a time now barred by the statute of limitations, but continuing until a date not barred, there is no ground for general demurrer based on the statute of limitations. See Wyatt v. Union Mortgage Co. (1979) 24 Cal.App.3d 773, 786.

Defendant argues that the gate was installed in late 2005 or 2006, but this date is not alleged in the complaint. In any case, the pleading alleges that the defendant has “continuously” interfered with the alleged easement, “since the gate was built and continuing until the time of the filing of the complaint…” [Para. 4]. It does not appear affirmatively from the pleading that any conceivable statute of limitations bars the action, and the demurrer is overruled on this ground.

Defendant seems to rely for dates and facts outside the pleading a Request for Judicial Notice, evidently of court records of what defendant characterizes as “Related Cases.” No cases have been ordered related to this case, and those cases are evidently not pending before this court. The RFJN refers to a Settlement Agreement in another case and a Petition and TRO, evidently issued in a civil harassment action. However, neither of those documents is attached to the RFJN.

Under CCP § 430.30(a), an objection to a pleading may be taken by a demurrer “[w]hen any ground for objection to a complaint…appears on the face thereof, or from any matter of which the court is required to or may take judicial notice.”

Under Evidence Code § 452 (d), judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or any state of the United States.”

Under Evidence Code §453, the trial court “shall” take judicial notice of any matter specified in Section 452 if a party requests it and (1) gives each adverse party sufficient notice of the request “to enable such adverse party to prepare to meet the request” and (2) “Furnishes the court with sufficient information to enable it to take judicial notice of the matter.”

The party requesting judicial notice here has not furnished the court with sufficient information to enable it to take judicial notice of any matter in a court record, as the records are not submitted.

In addition, with respect to judicial notice of court records, it is held,

“A court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”

Day v. Sharp (1975) 50 Cal.App.3d 904, 914, quoting Jefferson, Cal.Evid. Benchbook (1972) Judicial Notice § 47.3, p. 840 (emphasis in original).

The court would not in any case take judicial notice of when a fence was allegedly erected, or any of the hearsay matters included in such court records.

Defendant also seems to argue that the court may rely on attachments to the pleadings, and relies on attachments to defendant’s cross-complaint. There are no attachments to the complaint.

It is held that where an incorporated written instrument is the foundation of a cause of action, its recitals may serve as a substitute for direct allegations ordinarily essential to the pleading. Lambert v. Haskell (1889) 80 Cal. 611. Where these recitals are contrary to allegations in the pleading, the recitals will be given precedence, and the pleader’s inconsistent allegations as to the meaning and effect of an unambiguous document will be disregarded. Stoddard v. Treadwell (1864) 26 Cal. 294, 303; See also Witkin, Cal.Proc.4th 4 Pleading section 392; Mission Oaks Ranch, Ltd. v. Santa Barbara (1998) 65 Cal.App.4th 713, 719 (disapproved on other grounds in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1123 n.10).

This is not a situation where any attachments to the complaint contradict the pleader’s allegations; plaintiff cannot be considered bound by the allegations of defendant’s pleading which would ordinarily contradict plaintiff’s pleading. The court accordingly will not consider the exhibits to the cross-complaint in connection with this demurrer.

Res Judicata/Collateral Estoppel

Defendant also argues that the cause of action is barred by the doctrines of res judicata and collateral estoppel.

To establish claim preclusion under a theory of collateral estoppel, it must be established that the actions arose from the same primary right, that a prior judgment was obtained, and that the matters were actually litigated in the prior action;

“First, the issue sought to be precluded from relitigation must be identical to that decided in the former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.”

Lucido v. Superior Court (1990) 51 Cal.3d 335, 341. See also 7 Witkin, Cal. Proc. (4th Ed. 1985) Judgment section 354.

The party asserting collateral estoppel bears the burden of establishing the requirements. Lucido v. Superior Court, (1990) 51 Cal. 3d 335, 341.

Again, defendant relies for this argument on a purported Settlement Agreement and Civil Harassment Petitions which are not properly before the court on demurrer. The demurrer also fails to establish that any decision on a summary proceeding for a civil harassment restraining order would be a proceeding on the identical cause of action alleged here, which involves alleged interference with property rights in the form of an easement. The demurrer is overruled.

Second Cause of Action—Violation of Bane Act

This cause of action is based on Civil Code section 52.1, which provides:

“(a) If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, 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.

(b) 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, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.
(Emphasis added).

Defendant argues that the cause of action for violation of the Bane Act is not sufficiently stated, as speech alone will not support a claim without a showing that the speech threatens violence against a specific person who fears violence will be committed against her, and that the person threatening violence had the apparent ability to carry out the threat. The argument is based on subdivision (j) of the statute, which provides:

“(j) Speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), 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.”

As argued in the opposition, the pleading alleges that defendant “continuously says that she wants to kill the Plaintiff while standing in front of Plaintiff’s residence and in the common area of Plaintiff’s condominium,” and that defendant interferes with Plaintiff’s right to enter her residence by maintaining the fence, “and using physical threats and continuously… threatening violence against Plaintiff due to her race.” [Para. 12]. These allegations include that there was speech against defendant on her property, threatening violent acts, and it can be reasonable inferred from the proximity a reasonable fear that defendant had the apparent ability to carry out the threats. The demurrer is overruled.

Third Cause of Action—Assault

Defendant argues that the cause of action for assault is not sufficiently stated because based on the facts, plaintiff consented to the acts of defendant driving her vehicle through the common driveway, which is a defense to an assault claim.

Again, there are no facts alleged in the complaint from which such consent could be found to affirmatively bar this claim, and, in any case, even if there was consent to defendant’s ability to use the driveway, there would certainly be no reasonable inference from the allegations that plaintiffs consented to defendant drive her car pointed at the yard where plaintiffs were playing in such a manner that they feared they would be run over by the car. [Para. 22]. The demurer is overruled.

Fourth Cause of Action—Penal Code § 422.6

Defendant argues that there is no private right of action under Penal Code § 422.6.

Penal Code § 422.6 provides:

(a) No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.

(b) No person, whether or not acting under color of law, shall knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States, in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.

(c) Any person convicted of violating subdivision (a) or (b) shall be punished by imprisonment in a county jail not to exceed one year, or by a fine not to exceed five thousand dollars ($5,000), or by both the above imprisonment and fine, and the court shall order the defendant to perform a minimum of community service, not to exceed 400 hours, to be performed over a period not to exceed 350 days, during a time other than his or her hours of employment or school attendance. However, no person may be convicted of violating subdivision (a) based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat.

(d) Conduct that violates this and any other provision of law, including, but not limited to, an offense described in Article 4.5 (commencing with Section 11410) of Chapter 3 of Title 1 of Part 4, may be charged under all applicable provisions. However, an act or omission punishable in different ways by this section and other provisions of law shall not be punished under more than one provision, and the penalty to be imposed shall be determined as set forth in Section 654.”

There does not appear to be a private right of action set forth in the statute, only criminal penalties, in contrast to the right set forth, for example, in the Bane Act.

Defendant relies on In re M.S. (1995) 10 Cal.4th 698, in which the California Supreme Court, in evaluating the constitutionality of Penal Code § 422.6, compared its construction to “Civil Code § 52.1, the Bane Act civil counterpart of section 422.6,” which “recognizes a private right of action for damages and injunctive relief for interference with civil rights,” and found:

“The presence of the express ” reasonable fear“ element, in addition to the ”apparent ability“ element, in Civil Code section 52.1, governing civil actions for damages, most likely reflects the Legislature’s determination a defendant’s civil liability should depend on the harm actually suffered by the victim. That consideration is absent in a criminal prosecution under section 422.6.”

In re M.S., at 715.

This suggests that a civil private right of action must be pursued under the stricter requirements of the Bane Act, and the demurrer is sustained on this ground. Since it does not appear that the cause of action could be amended to state a claim under the Penal Code statute, the demurrer is sustained without leave to amend.