Minute OrderCal. Super. - 6th Dist.April 13, 2020SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Sean Solomon vs Sonia Angell, MD et al Hearing Start Time: 9:00 AM 20CV365357 Hearing Type: Hearing: Demurrer Date 0f Hearing: 12/03/2020 Comments: 1 Heard By: Kirwan, Peter Location: Department 19 Courtroom Reporter: Courtroom Clerk: Shantel Hernandez Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - N0 Appearance. Tentative Ruling is not contested. Adopted: This action challenges the legality 0f public health orders issued at the state and local level in response t0 the COVID-19 pandemic. Before the Court is a demurrer by former State Public Health Officer Sonia Y. Angell MD. on the ground that plaintiff s Complaint fails to state a claim against her. (Code Civ. Proc., 430.10, subd. (e).) Plaintiffopposes Dr. Angell s demurrer. I. Background Plaintiff has filed two pleadings in this action. On May 15, 2020, he filed a Verified Complaint for Declaratory Relief, Injunctive Reliefand Damages against Dr. Angell, Gavin Newsom, State 0f California, and Santa Clara County Health Officer. This pleading alleges that plaintiff is subject to Governor Newsom s Executive Order N- 33-20 and Santa Clara County Shelter in Place Orders, which were authorized by the State Public Health Officer Shelter In Place Order issued 0n March 19, 2020. (Complaint, 7, 10.) Plaintiff has been ordered t0 remain in his home, cease his self employment business under pain 0f arrest, criminal prosecution for a misdemeanor (presumably for each offense), imprisonment for up t0 6 months, a $1,000 fine, and a record 0f criminal conviction. (Id. at 7.) He contends that his non-essential status under applicable orders means that Plaintiffs business location has essentially been seized and has caused him a total loss of income rendering him unable t0 afford his overhead costs such as payroll and his multiple licensing requirements, multiple insurance policies, vehicle expenses, rents and much more. (Id., 51 53.) He has also been prohibited from leaving his home, peaceably assembling with others t0 exchange goods and services, and travelling freely. (Id., 54 56.) Plaintiff alleges that defendant Angell was not properly appointed the State Public Health Officer, and thus had n0 authority t0 issue the March 19th order. (|d., 9 10.) He urges the Court t0 issue a declaratory judgment in is as much as Plaintiff contests the validity of appointment 0f The State Public Health Officer, and The State Public Health Officer does not hold a certificate 0f election 0r commission 0f office. (|d., 19.) He also seeks declaratory relief that Code sections 8567, 8627, and 8665 as applied by California Governor Newsom s Executive Order No. N-33-20 apply only t0 the Governor s orders to State agencies (id., 57 61), these provisions unconstitutionally delegate legislative power t0 the Governor, and the use 0f these Printed: 12/3/2020 12/03/2020 Hearing: Demurrer r 20CV365357 Page 1 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER provisions is not supported by an adequate Declaration 0f Emergency by the Governor. Plaintiff further alleges that California Health and Safety Code 120125, 120140, 131080, 120130(c), 120135, 120145, 120175 and 120150, as applied here in this case, cannot be constitutionally applied t0 those who are healthy and for whom there is n0 evidence satisfying individualized due process that an individual California resident has a communicable disease 0r has actually been exposed to a communicable disease , and he seeks declaratory relief regarding this theory as well. (|d., 62 66.) Plaintiff seeks a declaration that the exercise 0f powers under Executive Order N-33-20 violates the constitutional rights 0f the Plaintiff under either the California Constitution 0r U.S. Constitution, including the right to travel, the right of free assembly, the right 0f worship, liberty and the pursuit of happiness. Based 0n his general allegations, plaintiff asserts causes 0f action for violation 0f Civil Code section 52.1 and seeks relief under section 52.1 for various violations 0f the California and federal Constitutions. On September 17, 2020 after Dr. Angell s demurrer was filed plaintiff filed a Verified Petition for Peremptory Writ of Mandate (CCP 1085) against Newsom, Xavier Becerra , in his official capacity as the Attorney General 0f California; Angell, in her disputed capacity as the Director, Of the State Department 0f Public Health; And unknown Doe, purported t0 be the State Public Health Officer. With regard t0 Angell, the Petition states that she is being sued in her private capacity, and is usurping the executive office 0f State Public Health Officer and seeks a writ 0f mandate prohibiting her from enforcing draconian orders and edicts. However, the Petition largely focuses 0n actions taken by Governor Newsom and events after August 9, 2020, when it alleges Angell resigned. (Petition at p. 17; see also Petition at p. 22.) The Petition also complains that Angell is improperly being represented by the Attorney General following her resignation. ||. Legal Standard The function 0f a demurrer is t0 test the legal sufficiency 0f a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App3d 617, 621.) Consequently, [a] demurrer reaches only t0 the contents 0f the pleading and such matters as may be considered under the doctrine ofjudicial notice. (South Shore Land C0. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary function 0f a demurrer t0 test the truth 0f the plaintiff s allegations or the accuracy with which he describes the defendant s conduct. Thus, the facts alleged in the pleading are deemed t0 be true, however improbable they may be. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) In ruling 0n a demurrer, the allegations 0f the complaint must be liberally construed, with a view t0 substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while [a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions 0r conclusions 0f law 0r fact. (George v. Automobile Club 0f Southern California (2011) 201 Cal.App.4th 1112, 1120.) A demurrer will lie where the allegations and matters subject t0 judicial notice clearly disclose a defense 0r bar t0 recovery. (Casterson v. Superior Court (Cardoso) (2002) 101 Cal.App.4th 177, 183.) |||. Requests for Judicial Notice Plaintiff has filed two requests for judicial notice in connection with Dr. Angell s demurrer, both 0f which are Printed: 12/3/2020 12/03/2020 Hearing: Demurrer r 20CV365357 Page 2 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER unopposed. His September 28th, 2020 request forjudicial notice 0f the opinion in County 0f Butler v. Wolf (W.D. Pa., Sept. 14, 2020, No. 2:20-CV-677) 2020 WL 5510690 is GRANTED. (Evid. Code, 452, subd. (d).) His November 6th, 2020 request forjudicial notice is GRANTED as t0 a tentative decision after trial in the Superior Court 0f California, County 0f Sutter, although this Court cannot rely 0n that decision as authorityl (Ex.1). (Evid. Code, 452, subd. (d).) The November 6th request is also GRANTED as to plaintiff s own petition for writ of mandate filed in this action (Ex. 5) and executive orders issued by the Governor (Ex. 4). (Evid. Code, 452, subds. (c) and ((1).) However, the November 6th request is DENIED as t0 materials that plaintiff attempted t0 file in this Court, but which apparently were rejected by the clerk. These materials are not a proper subject ofjudicial notice and d0 not appear t0 be relevant t0 Angell s demurrer in any event. (See People ex rel. Lockyer v. Shamrock Foods C0. (2000) 24 Ca|.4th 415, 422, fn. 2 [only relevant matters are subject t0 judicial n0tice].) IV. Preliminary Matters As an initial matter, plaintiff contends that it is improper for the Attorney General s office t0 represent Dr. Angell in connection with this action now that she has resigned, and because he contends that she was never properly appointed in the first place. In support 0f this argument, plaintiff cites Government Code section 12504, which provides that the Attorney General shall not engage in the private practice 0f law. However, with exceptions that are not applicable here, the Attorney General has charge, as attorney, of all legal matters in which the State is interested (Gov. Code, 12511) and is required by statute t0 defend all causes t0 which the State, 0r any State officer is a party in his 0r her official capacity (Gov. Code, 12512). Plaintiff appears t0 take the position that he is suing Dr. Angell in her individual capacity because she was not properly appointed the State Public Health Officer. This position lacks merit for the reasons discussed below, and [t]here is nothing in [section 12512] that requires that the fact that a state officer is sued in his official capacity, appear from the face of the complaint in order for the Attorney General to properly defend that person. (West Coast Poultry C0. v. Glasner (1965) 231 Cal.App.2d 747, 755.) In any event, it is appropriate for the State t0 defend a former officer purportedly sued in her personal capacity for acts within the scope 0f her employment. (See Gov. Code, 995 [ upon request of an employee or former employee, a public entity shall provide for the defense 0f any civil action 0r proceeding brought against him, in his official 0r individual capacity 0r both, 0n account 0f an act 0r omission in the scope 0f his employment as an employee 0f the public entity ].) Plaintiff cites n0 authority to support his apparent position that the Attorney General may not defend a former, as opposed t0 a current, State officer. Plaintiff s argument that the Attorney General may not represent Angell in this action accordingly lacks merit, and he does not state a claim against Angell 0n this theory. The Court further notes that, while plaintiff has filed both a Complaint and a Petition for Peremptory Writ 0f Mandate, the demurrer at issue is addressed t0 the Complaint. In her reply brief, Dr. Angell affirms this circumstance, although she argues that the Petition fails t0 cure the defects in plaintiff s Complaint. (Reply, p. 2 [As the petition fails to cure the defects in Plaintiff s verified complaint, Defendant Angell requests this Court rule 0n her demurrer t0 the verified complaint. ].) As suggested by Dr. Angell, the Court will rule 0n her demurrer as t0 the Complaint, but will consider the theories set forth in the Petition in order t0 assess whether plaintiff should be granted leave t0 amend his Complaint t0 state a claim against Dr. Angell that is not already included in that pleading. Printed: 12/3/2020 12/03/2020 Hearing: Demurrer r 20CV365357 Page 3 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER V. Bane Act Claims Turning t0 Dr. Angell s demurrer, Angell contends that plaintiff fails t0 state a claim under Civil Code section 52.1 (the Bane Act ), because he does not allege that Angell perpetrated threats, intimidation, 0r coercion as required by the statute. (See Civ. Code, 52.1, subd. (b) [establishing cause 0f action against a person who, whether 0r not acting under color 0f law, interferes by threat, intimidation, 0r coercion, 0r attempts t0 interfere by threat, intimidation, 0r coercion, with the exercise 0r enjoyment by any individual 0r individuals of rights secured by the Constitution or laws of the United States, 0r 0f the rights secured by the Constitution 0r laws 0f this state ].) As stated in the jury instructions approved by the Judicial Council 0f California, this statutory requirement means that the defendant threatened 0r committed violent acts against the plaintiff. (See CACI N0. 3066 (2020 rev.); Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882, quoting former CACI N0. 3025; Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 395.) Plaintiff s theory appears t0 be that the requisite threat, intimidation, 0r coercion is established by a statement in the Health Officer 0f the County 0f Santa Clara s order that a violation 0f that order is a misdemeanor punishable with a fine and/or imprisonment. Notably, Dr. Angell s March 19th order does not itself include any such provision. Regardless, a general statement 0f the legal consequences 0f violating a widely applicable order does not constitute a threat 0f violence against plaintiff. (See Cabesuela v. Browning- Ferris Industries 0f California, Inc. (1998) 68 Cal.App.4th 101, 111 [allegations that employer attempted to have employee s parole revoked and implicitly threaten[ed] [him] with police action, which implied the threat 0f physical force and government authority perpetrated against the Plaintiff directly, particularly because the Plaintiff would be, 0r might be, be viewed by the authorities as a dangerous parolee did not state a claim under the Bane Act because they merely imp|[ied] that plaintiff might be subjected t0 violence by the police, but in n0 way sh0w[ed] actual violence 0r intimidation by the threat 0f violence ].)2 Plaintiff thus fails t0 allege a Bane Act violation by Dr. Angell, and there is no indication that he could amend his pleadings t0 d0 so. VI. Claims for Injunctive and Declaratory Relief In addition t0 his allegations regarding the Bane Act, plaintiff seeks injunctive and declaratory relief against Angell, most clearly 0n the theory that she was not properly appointed the State Public Health Officer, and thus had n0 authority to issue the March 19th order. The executive officer known as the State Public Health Officer shall be appointed by the Governor, subject t0 confirmation by the Senate, and hold office at the pleasure 0f the Governor. (Health & Saf. Code, 131005, subd. (a); see also Gov. Code, 1322, subd. (aa) [Governor s appointment 0f State Public Health Officer subject to confirmation by the Senate].) Plaintiff appears to contend that the Governor appointed Dr. Angell Director 0f the State Department 0f Public Health, and not State Public Health Officer. (See Compliant, 10, 19, 25.) However, the statue provides that [t]he State Public Health Officer shall serve as the director of the State Department of Public Health. (|d., subd. (b); see also subd. (c) [statutory references t0 director, the Director 0f Health Services, the Director 0f Public Health, 0r the Director 0f the State Department 0f Public Health refer t0 the State Public Health Officer].) Plaintiff fails t0 cite any authority supporting the proposition that the Governor could not appoint Dr. Angell t0 both roles at once 0r was required t0 appoint the State Public Health Officer in a particular manner. Printed: 12/3/2020 12/03/2020 Hearing: Demurrer 720CV365357 Page40f6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER With regard t0 confirmation by the Senate, the Government Code provides: When an office, the appointment t0 which is vested in the Governor and Senate, either becomes vacant 0r the term 0f the incumbent thereof expires, the Governor may appoint a person t0 the office 0r reappoint the incumbent after the expiration of the term. Until Senate confirmation of the person appointed or reappointed, that person serves at the pleasure 0f the Governor. (Gov. Code, 1774, subd. (a).) The Governor shall submit the appointee s name t0 the Senate within 60 days after the person first began performing the duties 0f the office, 0r, as t0 the reappointment 0f an incumbent, within 90 days after the expiration date 0f the term. (|d., subd. (b).) The Senate then has 365 clays after the day the person first began performing the duties 0f the office, 0r, with respect t0 an incumbent whose appointment t0 that office previously had been confirmed by the Senate and who is reappointed t0 that office, 365 days after the expiration date 0f the term to confirm 0r refuse to confirm the appointment. (|d., subd. (c).) Here, Exhibit 4 t0 plaintiff s complaint reflects that Dr. Angell was appointed by the Governor 0n September 13, 2019. Accordingly, the Senate had until September 2020 t0 confirm 0r refuse her appointment. Meanwhile, Dr. Angell issued the challenged order on March 19, 2020 and resigned on August 9, 2020. Plaintiff s allegation that the Senate did not confirm Dr. Angell s appointment accordingly cannot establish that the March 19th order was invalid. Plaintiff s remaining theories regarding injunctive and declaratory relief pertain largely t0 actions by the Governor. To the extent they challenge orders by the State Public Health Officer, Dr. Angell as an individual is not a proper defendant t0 plaintiffs claims, particularly now that she has resigned. (See Sperry & Hutchinson C0. v. California State Bd. 0f Pharmacy (1966) 241 Cal.App.2d 229, 236 [demurrer by individual members 0f the California State Board 0f Pharmacy should have been sustained where claims relate[d] to official action 0fthe Board in which the named individuals participated only in their official capacity and the Board as such was thus the proper defendant” Dr. Angell s demurrer will accordingly be sustained without leave t0 amend as to Angell personally. Finally, Dr. Angell invites the Court to address the merits 0f plaintiff s theories that the challenged public health orders violate the California and United States Constitutions. However, the Complaint does not appear t0 assert any direct causes 0f action for constitutional violations. T0 the extent that plaintiff seeks declaratory relief 0n these theories, a demurrer is typically not an appropriate method for testing the merits 0f claims for declaratory relief. (See Qualified Patients Assn. v. City 0f Anaheim (2010) 187 Cal.App.4th 734, 751.) The Court accordingly declines t0 address the merits 0f these theories 0n demurrer, except t0 hold that Dr. Angell is not a proper defendant t0 any such claims in light 0f her resignation. VII. Conclusion and Order Dr. Angell s demurrer to the complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to plaintiff s claims against Dr. Angell personally. The Court expresses n0 opinion 0n the merits 0f any claims plaintiff may seek t0 Printed: 12/3/2020 12/03/2020 Hearing: Demurrer r 20CV365357 Page 5 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER assert against the current State Public Health Officer 0r the other defendants. The Court will prepare the order. COVID-19 LAW AND MOTION HEARING PROCEDURES Pursuant t0 the Judicial Council s Emergency Rule 3(a)(1) and (3), all law and motion hearings will be conducted remotely through CourtCaII until further notice. Please see the General Order re: COVlD-19 Emergency Order Regarding Complex Civil Actions, and in particular sections 7 and 10, available at http://www.scsc0urt.0rg/genera|_inf0/news_media/ newspdfs/GENERALORDER_RECOV|D- 19_EMERGENCY_ORDER_REGARDING_ COMPLEXCIVILACTIOdif. If a party gives notice that a tentative ruling will be contested, any party seeking t0 participate in the hearing should contact CourtCall. Public access t0 remote hearings is available 0n a listen-only line by calling 877-336-1831 (access code 9156587). State and local rules prohibit recording 0f court proceedings without a court order. These rules apply while in court and also while participating in a remote hearing or listening in on a public access line. No court order has been issued which would allow recording 0f any portion 0f this motion calendar. The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing t0 retain a court reporter t0 report a hearing may d0 so in compliance with this Court s October 19, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter will participate remotely and will not be present in the courtroom. Printed: 12/3/2020 12/03/2020 Hearing: Demurrer r 20CV365357 Page 6 0f 6