2016-00195759-CU-DF

Nabil Samaan vs. Mark Rains

Nature of Proceeding: Hearing on Demurrer to the 1st Amended Complaint

Filed By: McDermott, Amanda L.

Defendants Mark Rains and County of Sacramento’s demurrer to the second through fifth causes of action in Plaintiff Nabil Samaan’s first amended complaint (‘FAC”) is ruled upon as follows.

Defendants’ request for judicial notice of Plaintiff’s Tort Claim submitted to the County and additional documents filed in this action is granted. Plaintiff’s request for judicial notice of the Court’s order denying Defendants’ motion for summary judgment on the original complaint is granted.

The Court does not consider Plaintiff’s declaration submitted in opposition to the instant demurrer. A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (McKenney v. Purepac Pharm. Co. (2008) 162 Cal.App.4th 72, 79.) Extrinsic evidence may not properly be considered on demurrer. (Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.)

In the original complaint. Plaintiff alleged a single cause of action for defamation against Defendant Mark Rains. 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, defendant Mark Rains published a false statement in an email to five people that plaintiff was “a threat to County personnel.” Specifically, the email stated “[f]or the record, I believe that [Plaintiff] could be a threat to County Personnel.” After the Court granted Plaintiff’s motion for leave to file an amended complaint, Plaintiff added causes of action for violation of Civil Code § 52.1, Sacramento County Ordinance § 9.20.010, negligence, IIED and NIED, and violation of constitutional rights. Defendants demur to the newly added second through fifth causes of action. Plaintiff has since dismissed his claims for violation of constitutional rights.

Defendants first demur to the second through fifth causes of action on the basis that Plaintiff failed to comply with the Tort Claims Act.

Generally, no suit for money or damages may be brought against a public entity or public employee until a written claim has been presented to the entity and either acted upon or deemed rejected. (Gov’t Code §§ 945.4, 950.2.) “Compliance with the claims statute is mandatory, and failure to file a claim is fatal to the cause of action.” (Pacific Tel. & Tel. Co. v. Cnty. of Riverside (1980) 106 Cal.App.3d 183, 188.) Compliance with the Tort Claims Act is an element of a cause of action for damages against a public entity or official. (State v. Superior Court (2004) 32 Cal.4th 1234, 1244.) “Timely claim presentation is not merely a procedural requirement, but rather, a condition

precedent to a plaintiff’s maintaining an action against a defendant, and thus, an element of the plaintiff’s cause of action.” (K.J. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1238.)

Defendants first argue that the allegation in ¶ 7 of the FAC that Plaintiff “complied with the notice statutes” is vague and conclsuory. However, this is essentially an allegation of ultimate fact that must be assumed true for purposes of demurrer. Defendants’ real argument is that Plaintiff’s tort claim filed with the County on February 22, 2016 is not sufficient to comply with the Tort Claims Act with respect to the second through fifth causes of action because the claim only referred to a claim for defamation. Defendants reason that the claim provided no mention that Plaintiff would be pursuing claims based on negligence, IIED, NIED, etc.

“The purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expenses of litigation. Consequently, a claim need not contain the detail and specificity required of a pleading, but need only fairly describe what the entity is alleged to have done.” (Stockett v. Association of Calif. Water Agencies Joint Powers, Ins. Auth. (2004) 34 Cal.4th 441, 446 [citations omitted].)

Here, it is true that the tort claim filed by Plaintiff only mentioned defamation and did not mention theories based on Civil Code § 52.1, Sacramento County Ordinance §

9.20.010, negligence, IIED and NIED. However, the tort claim stated that the claim was bases on statements by Mark Rains and attached an email by Rains indicating that Plaintiff could be a threat to County employees. Plaintiff also indicated that he suffered lost wages, interference in construction work and interference with issuance of permits as a result. Plaintiff identified Mark Rains as the public employee involved and indicated that the incident occurred on February 16, 2016. The newly added causes of action in the FAC for violation of Civil Code § 52.1, Sacramento County Ordinance § 9.20.010, negligence, IIED and NIED, are all premised on Defendant Rains’ alleged defamatory statements which allegedly prevented Plaintiff from completing his construction project. Indeed, he specifically refers to the February 16, 2016 email in these causes of action. (FAC ¶¶ 30, 32, 34, 43, 44, 45, 52-55, 57-58, 61-62.) The causes of action are premised on essentially the same factual basis as set forth in the tort claim even though the theories were not specifically identified.

A tort claim “need not specify each particular act or omission later proven to have caused injury. (See, Blair v. Superior Court (1990) 218 Cal.App.3d 221, 225.) A complaint’s fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an ‘entirely different set of facts.’” ( Stockett, supra, at 447; Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 278.) “Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.” (Id.) It is only where there has been a “complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons that those described in the claim’ have courts generally found the complaint barred.” (Id. [citations omitted].) Such is not the case here as the FAC’s new causes of action for Civil Code § 52.1, Sacramento County Ordinance § 9.20.010, negligence, IIED and NIED are premised on the same factual premises as the defamation claim identified in the tort claim. Plaintiff did not shift the fundamental facts about his injury. The fact that Plaintiff also now seeks to impose

liability on the County is not fatal as again the county employee was identified in the claim and the new causes of action in the FAC are premised on the same factual allegations, involve the same injuries, and Plaintiff has simply sought to show direct responsibility of County for Defendant Rains’ conduct.

Defendants are correct in reply that the new causes of action in the FAC contain allegations beyond the February 16, 2016 email and refer to different statements and claims that Rains concocted a scheme to have Plaintiff investigated by various departments. Again, it must be noted that a complaint’s fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an “entirely different set of facts.” In this regard, the Court would simply note that while it is true that there are new allegations, each new cause of action is also specifically based on the February 16, 2016 email which was set forth in Plaintiff’s tort claim. The Court therefore cannot simply say on a demurrer, that the entirety of these new causes of action are barred as a matter of law based on a potential variance in the allegations and the tort claim. Indeed, “a demurrer cannot rightfully be sustained to a part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) Defendants did not move to strike.

The demurrer on the basis that Plaintiff failed to comply with the Tort Claims Act is overruled.

Defendants next separately demur to Plaintiff’s claims for Violation of Sacramento County Code § 9.20.010 and Violation of Civil Code § 52.1. The Court notes that these claims are combined within the Second Cause of Action though the parties have essentially treated them as having been separately pled for purposes of the instant demurrer.

The Court agrees that Plaintiff has failed to allege a cause of action based on either County Code § 9.20.010 or Civil Code § 52.1.

With respect to County Code § 9.20.10, that section provides that: “It is unlawful for any person to knowingly falsify or conceal any fact, or make any false or fraudulent statement or misrepresentation in any matter or proceeding within the jurisdiction of any department or agency of the County.” The Court will not infer a private right of action from a statute (or ordinance) which sets forth general prohibitions to protect the public at large. Rather the enacting body must have intended to create a private right of action. (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 305.) Here, the absence of any specific class of citizens in the County Code indicates in its intended to protect the public at large and that no private right of action is available. Further, the fact that a violation of the County Code is subject to criminal fines and potential imprisonment further supports the conclusion that no private right is available under § 9.20.010. (Sac. County Code § 1.01.190.) Plaintiff presents no countervailing authority and simply argues that even if he cannot enforce the County Code it should be allowed in the FAC because it shows Defendants’ unlawful conduct. Putting aside the question of whether Plaintiff can still refer to the Code in the complaint, the Court simply finds that Plaintiff cannot state a cause of action premised on the County Code § 9.20.010. The demurrer to this claim is sustained without leave to amend as there is no possibility that Plaintiff can state a cause of action premised on this section.

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. Moreover, “the statute was intended to address only egregious interferences with constitutional rights, not just any tort. Plaintiff has not alleged any constitutional right that was interfered with. Thus, the claim for violation of Civil Code § 52.1 is inadequately pled. Plaintiff alleges that Defendants violated that section in that they interfered with the exercise or enjoyment of rights secured by the US or California Constitution or by the laws of the US or California, including his improvement and/or construction projects for his real property and possessing a concealed weapon permit. (FAC § 35.) Civil Code § 52.1 generally provides individuals protection against interference with state or federal statutory rights or constitutional rights from interference by threats, intimidation, or coercion. Defendants argue that Plaintiff failed to allege any interference with any specific constitutional or statutory rights. The Court would agree, that while Plaintiff alleged that Defendants interfered with his rights to improve his property and have a concealed weapons permit, he provides no detail regarding what constitutional or statutory rights were interfered with. But even assuming that he did, he has not alleged that Defendants interfered with any such rights by threat, intimidation or coercion. Plaintiff did allege that Defendant Rains published an email stating that he was going to “WWF” plaintiff, which Plaintiff alleged was a direct threat of violence to him. (FAC ¶ 33.) But Plaintiff expressly alleged that the email was published to County personnel and he does not allege that the email was sent to him or that the content of the email was ever communicated to him. Nor does he allege that the statement that Rains would go “WWF” on Plaintiff prevented him from exercising any right. As a result, the demurrer to the Civil Code § 52.1 claim is sustained with leave to amend.

For the first time in reply, Defendants individually and separately attack the third through fifth causes of action for NIED, negligence and IIED (separate from the attack made to all causes of action in the opening papers that these claims were not disclosed in the tort claim). They argue that NIED is not a separate tort, that negligence is essentially duplicative of the defamation cause of action and that the IIED cause of action is not sufficiently alleged. The Court declines to consider these new arguments raised for the first time in reply. Defendants generally challenged all causes of action in the demurrer on the basis that they exceeded the scope of the tort claim and only separately attacked the second cause of action.

In sum, the demurrer to the second through fifth causes of action on the basis that Plaintiff failed to comply with the Tort Claims Act is overruled. The demurrer to the claim for violation of County Code § 9.20.010 is sustained without leave to amend.

The demurrer to the claim for violation of Civil Code § 52.1 is sustained with leave to amend.

Where leave was given Plaintiff may file and serve an amended complaint no later than January 29, 2018. Defendants shall file and serve their response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP § 430.41 extension as necessary.