Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIC375877, Gloria Trask, Judge.
The Scott Law Firm, John Houston Scott and Lizabeth N. de Vries for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Chris A. Knudsen, Supervising Deputy Attorney General, Kathryn M. Megli and Patti W. Ranger, Deputy Attorneys General, for Defendant and Respondent.
OPINION
Gaut, J.
1. Introduction
Plaintiff Curtis Landa was formerly employed as a guard at Ironwood State Prison in Blythe. Landa sued the California Department of Rehabilitation and Corrections (Department) after he was physically attacked by fellow guards in September 2000 and stabbed by unknown assailants in November 2000, following which he relocated to a desk job in Sacramento. A jury rendered a verdict in favor of the Department. On appeal, Landa challenges two pretrial rulings of the trial court, the first, concerning the Department’s demurrer to one cause of action of the third amended complaint that was never tried, the second, involving a motion in limine.
We affirm the judgment because Landa failed to state a cause of action under Civil Code section 52.1 (section 52.1) and because the motion in limine was properly granted as a matter of law.
2. Demurrer
a. Factual and Procedural Background
The facts, as alleged in the third amended complaint, include the assertion that the Department condones and perpetuates a “code of silence” among the prison guards and a person who violates the code is subject to retaliation.
The officers’ “code of silence” is described in Blair v. City of Pomona (9th. Cir. 2000) 223 F.3d 1074, 1081, “as consisting in a single rule: ‘an officer does not provide adverse information against a fellow officer.’ Report of the Independent Commission on the Los Angeles Police Department 168 (1991) (the Christopher Commission Report).”
On September 13, 2000, while Landa was working, he was overwhelmed by four other employees, including Sergeant Jesse Lara, who threw him to the floor, tied him with tape, and wrote “Lara’s bitch” on his arm and forehead. They also photographed him in this condition.
After Landa reported the incident, two of the guards obtained a copy of the fact-finding memo. Landa received threats at home and work. On November 6, 2000, Sergeant Glen Barr called Landa while on duty and warned him. “You better not have said anything and keep your mouth shut.” Landa immediately reported the threat but, the next day, on November 7, 2000, defendant was assaulted outside his residence by two men who clubbed him and stabbed him twice with a knife in the back and chest. The attackers wore black uniform pants “blossomed in the same manner as those worn by members of Ironwood State Prison’s elite cell extraction team.”
Landa alleged the Department engaged in retaliatory action by forcing Landa to sell his house in Blythe and move his family to Sacramento. Landa suffered various kinds of economic loss in the move. The Department gave Landa unreasonable assignments and performance goals and refused to promote him beyond correctional sergeant.
In support of his first cause of action under section 52.1, Landa alleged the Department interfered with his legal rights using threats, intimidation, and coercion by subjecting him to a punitive job transfer, forcing him and his family to relocate, failing to reimburse him fully for relocation expenses, denying him promotion, and punishing him with a job assignment with unachievable goals, as well as depriving him of job benefits. Landa asserted three more causes of action for negligence, gross negligence, and a violation of Labor Code section 1102.5.
The Department filed a demurrer to the third amended complaint, challenging the sufficiency of the facts alleging “threats, intimidation, or coercion” to state a claim under section 52.1 for interference with Landa’s legal rights. The court sustained the demurrer to the first cause of action without leave to amend.
b. Analysis
For purposes of reviewing the trial court’s ruling: “‘“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ [Citations.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 107.)
Section 52.1 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. . . .
“(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.”
Relying mainly on two federal district cases and Massachusetts authorities of questionable relevance, Landa asserts he alleged sufficient facts to establish the Department threatened him by not providing (or refusing to provide) him with a safe workplace and, therefore, coerced him into leaving Ironwood. (Cole v. Doe 1 thru 2 Officers of City of Emeryville Police Dept. (N.D. Cal. 2005) 387 F. Supp.2d 1084, 1103-1104 (Cole).) He also maintains the Department ratified the threats against him by not investigating. (City of Palo Alto v. Service Employees Internat. Union (1999) 77 Cal.App.4th 327 (Palo Alto); Diem v. City and County of San Francisco (N.D. Cal. 1988) 686 F.Supp. 806, 809 (Diem).)
The cases cited by Landa are factually and legally distinguishable. Cole primarily involved a federal civil rights claim brought by a motorist against Emeryville police. Cole’s pendent section 52.1 claim was based on his assertion the officers made an unjustified traffic stop of his car and then threatened to keep him handcuffed to coerce his consent to a search. (Cole, supra, 387 F. Supp.2d at p. 1103.) Cole relied on three Massachusetts cases to conclude that the exertion of police authority without actual or attempted physical force could constitute a violation of section 52.1. (Cole, supra, at pp. 1103-1104.) Cole has little application here where the Department did not exert its police authority against Landa, its own employee.
The Palo Alto case involved a city employee who had been terminated after threatening to shoot a fellow employee, his wife, and baby and was subsequently reinstated by an arbitrator. (Palo Alto, supra, 77 Cal.App.4th at p. 331.) In Palo Alto, the city was trying to protect workers who had been threatened by the terminated employee. Palo Alto is not authority for Landa’s proposition that “the refusal to protect a person against threats made by co-workers, may be a threat by an employer.”
The Diem case also does not assist plaintiff. Diem was a San Francisco firefighter who had been subjected to anti-Semitism on the job and who sued under Civil Code sections 51.7 and 52, barring “violence, or intimidation by threat of violence” because of religion. (Diem, supra, 686 F.Supp. at pp. 811-812.) The federal district court determined Diem had alleged sufficient facts to survive a summary disposition. Landa is not alleging religious violence or intimidation and the Diem court made no holding regarding the sufficiency of a claim of “threats, intimidation, or coercion” under section 52.1.
In contrast to Landa, the Department bases its analysis on California cases expressly concerned with section 52.1. (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1447-1448.) As discussed in City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 408, section 52.1 requires “‘an attempted or completed act of interference with a legal right, accompanied by a form of coercion.’ (Jones v. Kmart (1998) 17 Cal.4th 329, 334; see also Venegas v. County of Los Angeles [2004] 32 Cal.4th [820] at p. 843 [section 52.1 ‘provides remedies for “certain misconduct that interferes with” federal or state laws, if accompanied by threats, intimidation, or coercion’].)” (Accord Cabesuela v. Browning-Ferris Industries of California, Inc., supra, 68 Cal.App.4th at p. 111.)
Landa failed to allege in any concrete way how the Department used “threats, intimidation, or coercion” against him. Sergeant Barr was a coworker, not a supervisor. A threat by a coworker is not attributable to the Department. (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 169-170.) Not only did the Department not threaten Landa but he completely failed to satisfy the requirement that the Department engaged in a form of coercion by transferring Landa to Sacramento. Additionally, Landa’s government tort claim was deficient for failure to mention a section 52.1 violation. (Watson v. State (1993) 21 Cal.App.4th 836, 844.) Accordingly, we conclude the trial court properly sustained without leave to amend the demurrer to the first cause of action for a violation of section 52.1.
3. Motion in Limine
The trial court granted the Department’s motion in limine, deciding that, as a matter of law, the Department could not be held liable for the stabbing Landa suffered from unknown assailants in November 2000. On appeal, Landa argues that the limine motion was a thinly-disguised motion for summary judgment and that, viewing the evidence most favorably to Landa, the order granting the limine motion should be reversed. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108-1109; R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 332-33; Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th 1238, 1252; Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677.)
We agree the trial court properly granted the limine motion because it did not engage in improperly weighing the evidence and decided a legal issue based on statutory interpretation: “To determine the meaning of such a provision entails the resolution of a pure question of law. [Citations.] The soundness of the resolution of such a question is examined de novo.” (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
The trial court decides preliminary legal issues and possesses the inherent authority to control the introduction of evidence at trial. (Code Civ. Proc., §§ 591, 598.) A party may make a motion in limine that is, in effect, a demurrer to the complaint or a motion for judgment on the pleadings. (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451-452.) The preliminary legal issue involved whether the Department had a mandatory duty under Government Code section 815.6 and Labor Code section 1102.5, as stated in the fourth cause of action, to protect Landa from the off-duty stabbing in November 2000.
Labor Code section 1102.5, subdivision (b), prohibits an employer from retaliating against an employee for reporting illegal activities. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293.) But Landa was not a whistleblower accorded protection under the statute and the anonymous stabbing was not retaliation within the meaning of the statute. (Patten v. Grant Joint Union High School (2005) 134 Cal.App.4th 1378, 1383, 1385 (Patten).)
Landa could not establish a prima facie case for retaliation: “The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation.” (Patten, supra, 134 Cal.App.4th at p. 1384.) The first element, establishing a prima facie case, requires a plaintiff to show (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal link between the two. (Ibid.)
Landa was not engaged in protected activity. He reported the September incident so the four guards would be disciplined, not because their conduct violated state or federal laws. (Lab. Code, § 1102.5, subd. (b).) He was also not subjected to an adverse employment action, meaning an employer action which “materially affects the terms and conditions of employment.” (Patten, supra, 134 Cal.App.4th at p. 1386.) An off-duty stabbing is not an “an adverse employment action” and there is no provable link between it and Landa’s report of the September incident. Even if the November stabbing was instigated by the four guards (who were not plaintiff’s supervisors), it was not an adverse employment action by the Department. An action by one employee against another that occurs outside the work sphere is not an adverse employment action. (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 512.) For similar reasons, the Department cannot be found to have liability under the California Whistleblower Protection Act, Government Code sections 8547 and 8547.1 or Penal Code section 6219, both prohibiting retaliation against whistleblowers.
Government Code section 8547.1: “The Legislature finds and declares that state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution. The Legislature further finds and declares that public servants best serve the citizenry when they can be candid and honest without reservation in conducting the people’s business.”
The Department is also not liable to Landa under Labor Code sections 6400 et seq. based on the failure to provide a workplace free of physical dangers. (Cole v. State of California (1970) 11 Cal.App.3d 671, 675.) The November stabbing did not arise from a physically dangerous workplace. No mandatory duty to prevent the stabbing exists under Government Code section 6254 regarding exemption of public records from the Public Records Act.
Furthermore, except for Labor Code section 1102.5, all these Labor Code, Penal Code, and Government Code sections were not properly alleged as a basis for liability in the third amended complaint. A litigant relying on “the breach of a mandatory duty must specifically allege the applicable statute or regulation. Only by so doing may the public entity be advised of the factual and legal basis of the claim against it. [Citations.]” (Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 292-293.)
4. Disposition
We affirm the judgment. The Department as the prevailing party shall recover its costs on appeal.
We concur: Hollenhorst, Acting P. J., Richli, J.