Defendants' demurrer to plaintiff's first amended complaint was sustained with leave to amend as to one defendant, and without leave to amend as to the remaining defendants, on the ground it failed to state a cause of action. Plaintiff declined to amend and the judgment was entered in favor of all defendants. We affirm, concluding the first amended complaint failed to state a cause of action against defendants, and plaintiff has not shown how the first amended complaint could have been amended to cure the defects.
Plaintiff is a state prison inmate. He filed a complaint against four prison employees, alleging one cause of action under the "Bane Act" (Civ. Code, § 52.1)
Defendants demurred to the first amended complaint, contending the facts alleged failed to state a cause of action under the Bane Act. The trial court sustained the demurrer as to Morelock with leave to amend, because plaintiff might have been able to allege a cause of action for assault and battery. It sustained the demurrer as to the other defendants without leave to amend. Plaintiff's subsequent motion for rehearing and reconsideration was denied. Plaintiff expressly declined the opportunity to amend as to defendant Morelock, and judgment was entered against him in favor of all defendants. He appeals.
"On appeal from a dismissal after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law. [Citations.] We give the complaint a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citations.]" (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) "`We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]'" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "`We do not review the reasons for the trial court's ruling; if it is correct on any theory, even one not mentioned by the court, and even if the court made its ruling for the wrong reason, it will be affirmed. [Citations.]' [Citation.]" (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 637-638 (Curcini).)
When the trial court sustains a demurrer without leave to amend, we review the decision to deny leave to amend for abuse of discretion. (Curcini, supra, 164 Cal.App.4th at p. 637.) If the plaintiff has shown a reasonable possibility the defect could be cured by amendment, denial of leave to amend is an abuse of discretion. (Ibid.) The burden is on the plaintiff to demonstrate a reasonable possibility the defect could be cured by amendment. (Ibid.) Because plaintiff has proposed no amendments to his first amended complaint that he contends would cure the defects, the only question before us is whether the allegations of the first amended complaint state a cause of action.
The Bane Act provides:
"The Bane Act and related statutes `are California's response to [the] alarming increase in hate crimes.' [Citation.]" (Bay Area Rapid Transit Dist. V. Superior Court (1995) 38 Cal.App.4th 141, 144.) Section 52.1 requires "an attempted or completed act of interference with a legal right, accompanied by a form of coercion." (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334.) "To obtain relief under Civil Code section 52.1, a plaintiff need not allege the defendant acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion. [Citation.]" (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882 (Austin B.).) "The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., `threats, intimidation or coercion'), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law. [Citation.]" (Id. at p. 883.)
The trial court set out the elements of a cause of action under section 52.1, based on Austin B., supra, 149 Cal.App.4th at p. 882, and its citation of former CACI No. 3025 (now CACI No. 3066). The trial court's formulation required allegations "that the defendant interfered with or attempted to interfere with the plaintiff's constitutional or statutory right by threatening or committing violent acts" and "that the plaintiff reasonably believed that if he or she exercised his or her constitutional right the defendant would commit violence against him or her or his or her property." The trial court defined the term "violence," and determined the allegations of snatching the cap from plaintiff's head and yelling "get out of here" did not constitute violence or a threat of violence. Accordingly, it found plaintiff had not stated a cause of action under section 52.1.
It is unclear whether violence or a threat of violence is required for violation of section 52.1. By its express terms, the statute requires interference with a person's rights "by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion." (§ 52.1, subd. (a).) Violence is not mentioned in section 52.1, subdivision (a) or (b). Section 52.1, subdivision (j), however, provides:
Thus, it is clear that a threat of violence is required when the violation of section 52.1 was allegedly accomplished through speech alone.
It is less clear whether violations allegedly accomplished through coercion or intimidation require actual violence or the threat of violence. The directions for use accompanying CACI No. 3066 indicate it is not clear whether a valid claim under section 52.1 could be "based on threats, intimidation, or coercion involving a nonviolent consequence." (CACI No. 3066, Directions for Use, citing "Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [(Shoyoye)] ... [we `need not decide that every plaintiff must allege violence or threats of violence in order to maintain an action under section 52.1']; City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 408 ... [also noting issue but finding it unnecessary to address].")
In his concurring opinion in Venegas v. County of Los Angeles (2004) 32 Cal.4th 820 (Venegas), Justice Baxter noted that section 51.7, the "Ralph Act," prohibits "violence, or intimidation by threat of violence, committed against their persons or property because of their ... actual or perceived membership in a ... protected class." (Venegas, at p. 845.) The Bane Act, added 10 years after the Ralph Act, prohibits interference with an individual's rights "by threats, intimidation, or coercion," based on membership or perceived membership in a protected class. (Venegas, at p. 846, italics omitted.) According to Justice Baxter, "the stated purpose of the Bane Act was to subject `the use of force or threats to interfere with the free exercise of one's constitutional rights' [citation], based on the victim's membership or perceived membership in one of the enumerated protected classes, to both civil and criminal remedies. In other words, what the Bane Act did at its inception was to add `threats, intimidation or coercion' to the already proscribed `violence, or threats of violence' sanctioned under the Ralph Act, where any such conduct interferes with or attempts to interfere with the statutory and constitutional rights of" actual or perceived members of a protected class. (Venegas, at p. 847, some italics omitted.)
One federal court has stated:
In Shoyoye, supra, 203 Cal.App.4th at page 958, where the plaintiff was mistakenly detained in jail after he should have been released, the court stated: "The statutory framework of section 52.1 indicates that the Legislature meant the statute to address interference with constitutional rights involving more egregious conduct than mere negligence." The court continued:
The Shoyoye court also noted the legislative history indicated the Legislature considered, but rejected, a proposal to delete the language requiring that the interference with rights be accomplished by threats, intimidation, or coercion. (Shoyoye, supra, 203 Cal.App.4th at p. 959.) A bill analysis indicated that tort remedies were available to redress interference with statutory or constitutional rights; section 52.1 "`focuse[d] specifically on the
From the foregoing authorities, we conclude that, even if the Bane Act's proscription of interference with constitutional or statutory rights by threats, intimidation, or coercion applies to a broader spectrum of conduct than the Ralph Act's proscription of interference with such rights by violence or the threat of violence, nonetheless, the Bane Act was intended to address only egregious conduct, involving force or violence, deliberately aimed at interfering with the victim's constitutional or statutory rights.
In his original complaint, which plaintiff incorporated by reference into the first amended complaint, plaintiff alleged that, when he arrived at the chapel for prayer services on September 10, 2010, he was "denied entrance by Sergeant Carlton's orders because plaintiff had to go to medical clinic first." He alleged Morelock confiscated his black kufi cap by removing it from his head, based on an August 3, 2010, memorandum indicating the religious review committee had recommendations pending to change the department operations manual so that the only "[a]llowable colors for religious headwear will be white and/or grey." The memorandum attached as an exhibit to the complaint and the first amended complaint, however, stated the change to the operations manual "will be effective immediately." The copy of the memorandum attached to the first amended complaint was marked "approved" and signed by the warden. The original complaint discussed the cost of the cap ($500), alleged plaintiff was not given an opportunity to send the cap home, explained he did not want the cap returned because it had been "desecrated by the touch of an infidel," and asserted other prisoners were allowed to retain articles of personal property even though they had been "outlawed years ago." Both complaints alleged defendants' acts were discriminatory and interfered with plaintiff's right to freely practice his religion.
The first amended complaint alleged that, when Morelock confiscated the kufi cap, "it was done with great hostility, a sudden snatch, causing me to duck, with the next expectation to be hit by" Morelock. Further, as plaintiff "backed up in fear, ... Morelock shouted `Get out of here,' meaning go away from the chapel area." Plaintiff alleged he "became very fearful and felt intimidated due to these threatening actions and remarks made, backed up by Morelock's supervisor," and the acts and remarks prevented him from attending prayer services.
The allegations of the first amended complaint, including those incorporated from the original complaint, indicate plaintiff was prevented from attending prayer services because he "had to go to medical clinic first," and Morelock snatched the kufi cap off his head "with great hostility" and confiscated it because of a memo indicating black religious headwear had recently become prohibited at the prison. Plaintiff disputed whether the change reflected in the memo had actually gone into effect at the time Morelock confiscated his kufi cap.
The allegations of the first amended complaint reflect a dispute about prison rules and regulations and the confiscation of plaintiff's personal property, which may have been prohibited by a change in those rules. We conclude the pleading does not allege defendants interfered with or attempted to interfere with the plaintiff's right to practice his religion "by threatening or committing violent acts" (CACI No. 3066), "by making the plaintiff timid or fearful, either through actions or through speech expressing an intent to inflict violence[,] or by restraining or dominating the plaintiff by force" (Veal, supra, 2004 U.S. Dist. LEXIS 6953, at pp. 27-28). The alleged speech ("`Get out of here'") did not threaten plaintiff with violence. The alleged conduct, even combined with the alleged speech, does not amount to an egregious interference with plaintiff's constitutional right that is deliberate or spiteful. (Shoyoye, supra, 203 Cal.App.4th at p. 959.) It does not involve the violence or force, or the threat of violence or force, contemplated by section 52.1. Consequently, we conclude plaintiff's first amended complaint does not state a cause of action under the Bane Act for violation of plaintiff's right to practice his religion. The demurrer to the first amended complaint was properly sustained.
The judgment is affirmed. Defendants are entitled to their costs on appeal.
