Opinion
F083169
04-29-2024
GERRY WILLIAMS, Plaintiff and Appellant, v. D. ALCALA, Defendant and Respondent.
Gerry Williams, pro. per., for Plaintiff and Appellant. Rob Bonta, Attorney General, Monica N. Anderson, Assistant Attorney General, Neah Huynh and Jaime M. Ganson, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BCV-20-100021 David R. Lampe, Judge. (Retired Judge of the Kern County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gerry Williams, pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Monica N. Anderson, Assistant Attorney General, Neah Huynh and Jaime M. Ganson, Deputy Attorneys General, for Defendant and Respondent.
OPINION
THE COURT [*]
Appellant Gerry Williams challenges the trial court's decision to sustain a demurrer to his first amended complaint (FAC) without leave to amend. Following our review of the record on appeal, we affirm the trial court's judgment.
PROCEDURAL SUMMARY
In November 2018, Williams initiated a grievance process with Kern Valley State Prison, alleging retaliation by a prison official, D. Alcala. Williams alleged Alcala was the sponsor of a group Williams had been the chairperson of until he was removed by Alcala. Williams alleged he was retaliated against by Alcala for exercising his First Amendment free speech rights as a member of the group. Following various levels of review within the prison, Williams's grievance for retaliation was denied, first in December 2018, and then again in January 2019. A third level review of the grievance was conducted and rejected in March 2019.
At some point after or while his grievances were still being considered, Williams presented a government claim to the state's Department of General Services (DGS). In this claim, Williams specifically alleged Alcala was responsible for acts of reprisal and retaliation based on the same facts raised in the grievances. Williams stated Alcala violated Penal Code section 147, "due to inhumanity and oppressive subjectivity." (Capitalization omitted.) This claim was denied on July 31, 2019, through a letter from DGS that specified procedural requirements and deadlines if Williams intended to pursue this matter further.
Williams filed a complaint against Alcala in the Kern County Superior Court on January 2, 2020. In the first portion of the complaint, which utilized a form, Williams listed the causes of action he was pursuing as, "retaliation in violation of the California Constitution [and the] denial of [the] freedom of sp[e]ech in violation of the California Constitution." (Capitalization omitted.) However, while not including any factual allegations in support of these claims, Williams attached an additional form identifying general negligence as a cause of action brought against Alcala. Williams sought compensatory and punitive damages in the amount of $150,000.
The complaint has two date stamps on the first page. The first stamp, which is located in the usual location, lists the year as 2019. The second stamp appearing to the right just outside the box contains the year 2020. We assume this was filed in January 2020, and that this error was due to how early in the month the document was filed.
Following some apparent issues with the service of this complaint, service was finally completed. A demurrer to the complaint was then filed on August 31, 2020. Before a hearing could be held on the demurrer, however, Williams filed a FAC on April 19, 2021. In the FAC, Williams included causes of action alleging a denial of protection, retaliation for filing a grievance, and racial discrimination. Each cause of action cited Civil Code sections 51.7 and 52.1, as authorities for the causes of action pled.
This matter appears to have been subject to numerous delays due to the emergency orders in place related to the Covid-19 pandemic.
Again, the FAC consisted of both a form complaint and a more traditional complaint. Although indicating a cause of action for negligence would be included in the form complaint, no specific allegations addressing negligence were included, and no such cause of action was actually pled in the more traditional version of the complaint.
A demurrer to the FAC was filed on May 19, 2021. This demurrer alleged Williams failed to state a cause of action for each of the three causes of action alleged in the FAC, failed to comply with the Government Claims Act (GCA), and failed to exhaust administrative remedies. The record does not show Williams filed any written opposition to this demurrer.
The trial court granted Alcala's demurrer to the FAC without leave to amend citing a failure to comply with the GCA. The ruling also stated that to the extent Williams was alleging claims for cruel and unusual punishment or the denial of free speech, neither claim would support a private right of action by Williams.
FACTUAL SUMMARY
The allegations made by Williams in his various filings all involve Alcala and a prison group named "Lifers for Change." At a point just prior to the filing of his first grievance, Williams was the chairperson of the group, and Alcala was the prison staff sponsor for the group.
Williams's problems allegedly began because of personal conflicts he had with other group members due to" 'racial politics.'" These conflicts caused Williams to resign from the group in writing and ask that a $150 donation to the group's upcoming banquet be refunded to him. However, after the money was refunded, Williams changed his mind about leaving the group following a discussion with Alcala's supervisor. Williams redonated the money and then showed up for the next group meeting. Williams alleged he was excluded from this meeting by Alcala because he had not submitted a written request to rejoin the group. Once Williams submitted a written request to rejoin the group, following yet another discussion with Alcala's supervisor, he was allowed to attend group meetings again. By that time, two other group members had been selected to be the group's new chairpersons.
DISCUSSION
I. The Applicable Standard of Review
Our review of an order sustaining a demurrer without leave to amend is conducted de novo. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) However, we start with the proposition that "[o]n appeal, a judgment of the trial court is presumed ... correct." (Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956.)" 'The burden of affirmatively demonstrating error is on the appellant'" (State Farm Fire &Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610), and the appellant must also be able to show that any error made by the trial court was in fact prejudicial and resulted in a miscarriage of justice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.)
A. The Ruling Made in This Case
We have not been provided a transcript of the ruling when it was made, or the tentative ruling issued before the hearing on Alcala's demurrer to the FAC held on June 22, 2021. The minute order issued for this hearing provides the reasons for the court's findings and rulings as follows:
"The Court sustains Defendant's Demurrer to Plaintiff Williams' First Amended Complaint without leave to amend. As noted in prior rulings in this action, Government Code section 945.4 states: 'No suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented ... until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.…' (Gov. Code, § 945.4.) Compliance with Section 945.4 is required before a claimant may file a civil action. '[E]ach cause of action must [be] reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.' (Watson v. State of California (1993) 21 Cal.App.4th 836, 844[,] quoting Nelson v. State of California (1982) 139 Cal.App.3d 72, 79.) The evidence demonstrates that Plaintiff filed a claim on January 25, 2019, but the facts and allegations in the claim do not support the causes of action specifically at issue in the First Amended Complaint-violation of the Ralph Act and violation of the Bane Act. Thus, Plaintiff has not strictly complied with the Government Claims Act.
All further statutory references are to the Government Code unless otherwise noted.
"The First Amended Complaint fails for the additional reasons set forth in the demurrer. Plaintiff failed to exhaust his internal administrative remedies within Kern Valley State Prison. Like his claim, Plaintiff's grievance does not contain any facts directly or impliedly supporting a claim for violation of the Ralph Act or the Bane Act. To the extent Plaintiff purports to allege a cause of action for cruel and unusual punishment or violation of his right to free speech, which he alludes to in the form portion of the First Amended Complaint, neither supports a private right of action. (See, e.g., Giraldo v. Department of Corrections [&] Rehabilitation (2008) 168 Cal.App.4th 231, 256 [(Giraldo)]); and Degrassi v. Cook (2002) 29 Cal.4th 333, 342.) As for Plaintiff's reference to negligence, retaliation, exposure to hazardous conditions, or intentional tort in the form portion of the First Amended Complaint, he fails to allege any facts directly or impliedly supporting any of these theories."
On August 29, 2021, the register of actions provided in the augmented record supplied to this court states:
Williams's notice of appeal was filed on August 9, 2021, after the June 22, 2021, ruling was made by the trial court, as represented in the minute order. With respect to any possible challenge that this notice was filed prematurely, we deem any such challenge waived by respondent. (Smith v. County of Kern (1993) 20 Cal.App.4th 1826, 1829, fn. 2.)
"THE COURT ORDERS that the tentative ruling on the demurrer is adopted. Defendant's demurrer is sustained. Plaintiff failed to comply with California's Government Claims Act and did not properly exhaust his administrative remedies. Because Plaintiff has not shown how these failings could be remedied through amendment, Defendant's demurrer is sustained without leave to amend...."
II. The Need to Exhaust Administrative Remedies
The GCA requires that "all claims for money or damages against local public entities" be "presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) .." (§ 905.) Chapter 2 sets forth requirements for the presentation and consideration of claims. When a personal injury is involved, a written claim for damages must be presented to the public entity "not later than six months after the accrual of the cause of action." (§§ 911.2, subd. (a), 945.4.) As to the contents of that claim, section 910 provides:
"A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: [¶] (a) The name and post office address of the claimant. [¶] (b) The post office address to which the person presenting the claim desires notices to be sent. [¶] (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. [¶] (d) A general description of the . injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. [¶] (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.
[¶] (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case." (§ 910.)
The presentation of a written claim to the public entity serves at least three purposes. First, it provides the public entity with sufficient information to enable it to perform an adequate investigation of the claim and, if appropriate, to settle it without the expense of litigation. (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446.) Second, the written claim "informs the public entity of potential liability so it can better prepare for the upcoming fiscal year." (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) Third, in certain situations, the claim provides the public entity an opportunity to fix a dangerous condition and avoid further liability. (San Diego Unified Port Dist. v. Superior Court (1988) 197 Cal.App.3d 843, 847.) If only an employee is named in the lawsuit for acts committed within the course and scope of their employment with the public entity, the requirements of filing a claim under the GCA still apply. (§ 815.2; see also C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868.)
A. The Claim Must Be Adequate
"In order to comply with the claim presentation requirement, the facts alleged in a complaint filed in the trial court supporting a cause of action against a government employee, including the damages alleged to have been suffered by the claimant, must be consistent with the facts contained within the government claim." (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376.) Furthermore, the factual circumstances posed in the written claim must correspond with the facts alleged in the complaint, or the complaint will be vulnerable to a demurrer" 'if it alleges a factual basis for recovery which is not fairly reflected in the written claim. [Citations.]'" (Watson v. State of California, supra, 21 Cal.App.4th at p. 844; see also Nelson v. State of California (1982) 139 Cal.App.3d 72, 79.)
B. Williams's Claim Was Not Adequate
In his various grievances filed with the prison, Williams alleged he was retaliated against by Alcala for exercising his First Amendment free speech rights as a member of the "Lifers for Change" group. Williams pointed to his "removal" from the group as the act of retaliation by Alcala. In fact, during the grievance process, Williams emphasized, when asked, that his grievances were based on "retaliation" and that he could not be told what he could or could not file.
Williams restated many of these allegations in the more formal claim he filed with DGS, specifically stating he was being retaliated against for exercising his
First Amendment rights. Williams also added an allegation that Alcala violated Penal Code section 147 "due to inhumanity and oppressive subjectivity." (Capitalization omitted.) Penal Code section 147 states:
"Every officer who is guilty of willful inhumanity or oppression toward any prisoner under his care or in his custody, is punishable by fine not exceeding four thousand dollars ($4,000), and by removal from office." (Pen. Code, § 147.)
This reference to Penal Code section 147 failed to provide any specific allegations of how Alcala committed acts of "willful inhumanity or oppression" toward him.
We note case law has recognized this specific provision does not provide a private right of action for a plaintiff. (See Johnson v. United States (9th Cir. 2018) 734 Fed.Appx. 436, 440.)
In the FAC, which is at issue in this appeal, Williams included causes of action alleging a denial of protection, retaliation for filing a grievance form, and racial discrimination. Each cause of action was alleged to be based on Civil Code sections 51.7 and 52.1, as authorities for the causes of action pled. This was the first time Williams had ever referenced these two Civil Code sections in any of his filings with the prison, DGS, or the court.
Civil Code section 51.7, commonly referred to as the "Ralph Act," states that all persons have the right to be free from any violence, intimidation or threat committed against their persons because of race, religion, sex, or sexual orientation. "The unambiguous language of this section" supports a cause of action for a person "against whom violence or intimidation has been committed or threatened." (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277.) Civil Code section 52.1, known as the "Bane Act," provides that a person may bring a cause of action" 'against anyone who "interferes by threats, intimidation or coercion, with the exercise or enjoyment" of any constitutional or statutory right.'" (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 110.) There must be either violence or a threat of violence under Civil Code section 51.7 (Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486), or" 'an attempted or completed act of interference with a legal right, accompanied by a form of coercion,'" under Civil Code section 52.1. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882-883.) These two provisions are often cited as measures meant to address hate crimes. (D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 858.)
Nowhere in any of the grievances filed by Williams, or the formal claim submitted to the state, does Williams allege any facts suggesting Alcala either committed or threatened acts of violence or intimidation. Williams also failed to allege Alcala either threatened, intimidated, or coerced him to give up his statutory or constitutional rights. At most, the allegations suggest Williams was removed from the group, or prevented from rejoining it, because he had arguments with other members of the group, or because he withdrew his own money from an account that was meant to help fund an activity for the group. In fact, Williams responded to a question posed during the grievance review process emphasizing his grievance was solely based on his being retaliated against by Alcala for exercising his right to free speech. There is no mention of violence, coercion, or intimidation in any of these filings.
A complaint is subject to dismissal if it alleges a factual basis for recovery which is not "fairly reflected" in the government claim. (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority, supra, 34 Cal.4th at p. 447.) The facts alleged by Williams during the grievance and claim processes never raised any allegations of acts by Alcala of intimidation, coercion, or threats, or that were actionable through a private right of action. Furthermore, at no time did Williams suggest Alcala engaged in any acts that could be characterized as threatening violence toward Williams or of committing any acts that could be characterized as hate crimes.
III. The FAC Failed to State a Cause of Action
While we believe the trial court was correct when sustaining the demurrer to the FAC because there was a failure to comply with the requirements of the GCA, we may also affirm the demurrer on any basis, regardless of the ground relied upon by the trial court when making its ruling. (Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance Company (2021) 70 Cal.App.5th 341, 353.)
To properly state a cause of action, the FAC had to allege every necessary element for each cause of action pled. (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1134.) When reviewing a demurrer, while we must accept the factual allegations as true, we are not required to assume the truth of alleged" 'contentions, deductions or conclusions of law' because 'appellate courts must independently decide questions of law.'" (Ibid.)
The allegations of the FAC fail to state adequate claims for violations of either Civil Code section 51.7 or 52.1. With respect to Civil Code section 51.7, the complaint failed to allege that any violence or intimidation was committed or threatened against Williams. (See Coon v. Joseph, supra, 192 Cal.App.3d at pp. 1272, 1277-1278 [the claim that a person's civil rights had been violated when a bus driver refused him entry to a bus and whose companion was harassed by the same bus driver, failed to state cause of action].) Turning to Civil Code section 52.1, Williams failed to allege that any interference of his federal or state rights was accomplished by Alcala through the use of intimidation, threats, or coercion. (See Inman v. Anderson (N.D.Cal. 2018) 294 F.Supp.3d 907, 925 [no allegations that the failure to return arrestee's property after charges were dismissed was achieved by threats, intimidation, or coercion].)
We also agree with the trial court's conclusion that Williams also failed to allege viable claims for cruel and unusual punishment and a violation of his right to free speech. These claims do not on their own create a private right of action. First, the trial court in its minute order cited the case of Giraldo, supra, 168 Cal.App.4th 231, which states:
"[W]e have found no indication-either on the face of the constitutional provision or in its history-that the enactors intended article I, section 17 of the state Constitution confer a private right of action for damages for a violation of the prohibition against the infliction of cruel or [un]usual punishment." (Giraldo, supra, 168 Cal.App.4th at p. 255.)
Similarly, in Degrassi v. Cook (2002) 29 Cal.4th 333, the court considered the history of the relevant California constitutional provisions and concluded there was no basis for finding the existence of a private right of action for the violation of someone's right to free speech. (Id. at p. 339.)
IV. Williams Also Failed to Show the Court How the Inadequacies of His Complaint Could be Corrected
When issuing its ruling on the demurrer, the trial court also noted Williams failed to oppose the demurrer to his FAC, and further made no effort to demonstrate how the inadequacies of his pleading could be corrected with additional allegations. Citing Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, the court suggested this failure constituted a waiver of the ability to obtain an additional opportunity to amend his complaint.
We agree and note the relevant standard of review requires that once we decide a demurrer was properly sustained, we are then required to decide whether it is reasonably possible the defect or defects in the complaint can be cured with an amendment. (Boyd v. Freeman (2017) 18 Cal.App.5th 847, 853-854.) On this point, the burden belonged to Williams to show what facts could have been pled to cure the existing defects in his complaint. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.) "To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action." (Ibid.) Moreover, a trial court does not abuse its discretion when it sustains a demurrer without leave to amend if either:
"the facts and nature of the complainant's claim are clear and under the substantive law no liability exists or it is probable from the nature of the defects and previous unsuccessful attempts to plead that complainants cannot state a cause of action." (Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 581.)
Again, we are permitted to affirm a demurrer on any basis, regardless of the specific ground or grounds relied upon by the trial court when making its ruling. (Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance Company, supra, 70 Cal.App.5th at p. 353.) We believe it is improbable, based on his prior efforts, that Williams can make the necessary changes to his FAC that would allow this case to proceed. Williams has not met his burden to overturn the trial court's ruling on the FAC.
In fact, we would likely conclude that any effort to add allegations suggesting violence, intimidation, or coercion at this point could be seen as an attempt to submit a "sham" pleading to the court. (See Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726 [the facts appearing in exhibits attached to a complaint will also be accepted as true and, if contrary to the allegations in the pleading, may override those allegations].) We do not believe it logical to conclude such egregious allegations of conduct would not have been raised before if they actually occurred.
DISPOSITION
The judgment is affirmed. Costs are not awarded in this appeal.
[*] Before Poochigian, Acting P. J., Smith, J. and DeSantos, J.