Order After Hearing POSCal. Super. - 6th Dist.April 13, 202010 Il 12 13 14 20 21 22 23 24 25 26 27 28 .ffiELE DEC 0 3 2020 Cl of t BySupen'or CA ChetyCoPSlglftta Ciara SUPERIOR COURT 0F CALIFORNIA COUNTY OF SANTA CLARA SEAN PATRICK SOLOMON, Case No.2 20CV365357 Plamnff’ ORDER AFTER HEARING 0N DECEMBER 3, 2020 vs. Demurrer t0 Verified Complaint by SONIA Y. ANGELL’ MD.) Ct alt! Defendant Sonia Y. Angel], M.D. Defendants. The above-entitled matter came on regularly for hearing on Thursday, December 3, 2020 at 9:00 am. in Department 19, the Honorable Peter H. Kirwan presiding. A tentative ruling was issued prior to the hearing. N0 party challenged the tentative ruling or‘ appeared at the hearing. Having reviewed and considered the written submissions of all parties and being fully advised, the Court adopts the tentative ruling as follows: This action challenges the legality 0f public health orders issued at the state and local level in response to the COVID-19 pandemic. Before the Court is a demurrer by former State Public Health Officer Sonia Y. Angell M.D. 0n the ground that plaintiff’s Complaint fails t0 state a claim against her. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiffopposes Dr. Angell’s demurrer. Solomon v. Angeli, ct a/., Superior Cour! ofCaliform'a. County ofSanla Clara. Case No‘ 20CV365357 I Order After Hearing 0n December 3, 2020 [Demurrer r0 Verified Complaint by Defendant Sonia Y. Angel], M.DJ 10 ll l9 20 21 22 23 24 26 27 28 I. Background ‘ Plaintiff has filed two pleadings in this action. On May 15, 2020, he filed a “Verified Complaint for Declaratory Relief, Injunctive Relief and Damages” against Dr. Angell, Gavin Newsom, “State of 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 ‘Shclter In Place Order’ ” issued 0n March 19, 2020. (Complaint, 1H] 7, 10.) Plaintiff has been ordered “to remain in his home, cease his self employment business under pain of arrest, criminal prosecution for a misdemeanor (presumably for each offense), imprisonment for up to 6 months, a $1,000 fine, and a record 0f criminal conviction.” (Id. at 1] 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, 1H] 5 1-53.) He has also been prohibited from leaving his home, peaceably assembling with others to exchange goods and services, and travelling freely. (Id, 1m 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. (Id, 1H] 9-10.) He urges the Court to “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 of election or commission 0f office.” (1d,, 1] 19.) He also seeks “declaratory relief that Code sections 8567, 8627, and 8665 as applied by California Governor Newsom’s Executive Order N0. N-33-20 apply only to the Governor’s orders to State agencies” (id, 1H] 57- 61), these provisions unconstitutionally delegate legislative power t0 the Governor, and the use of these provisions is not supported by an adequate Declaration of 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 to those who are healthy and for whom there is no evidence satisfying Solomon v. Angeli. e! at, Superior Cour! afCalifornia, County ofSama Clara. Case No. 20CV365357 2 Order Afler Hearing on December 3. 2020 [Demurrer to Verified Complaint by Defendant Sonia Y. Ange”, MD] 21 22 23 24 26 27 28 individualized due process that an individual California resident has a communicable disease 0r has actually been exposed t0 a communicable disease ...,” and he seeks declaratory relief regarding this theory as well. (Id, 1H] 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 0f free assembly, the right 0f worship, liberty and the pursuit 0f happiness.” Based on 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 of 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 of 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 of State Public Health Officer.. .” and seeks a writ of mandate prohibiting her from enforcing “draconian” orders and edicts. However, the Petition largely f00uses 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. II. Legal Standard The function of a demurrer is to test the legal sufficiency 0f a pleading. (Trs. OfCapz'tal Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subcl. (a).) “It is not the ordinary function 0f a demurrer t0 test the truth ofthe plaintiff‘s allegations 0r the accuracy with which he describes the defendant’s conduct. Thus, Solomon v. Angeli, e: 0L, Superior Court ofCallfomia, County ofSama Clara, Case N0. 20CV365357 I 3 Order After Hearing 0n December 3, 2020 [Demurrer t0 Verified Complaint by Defendant Sonia Y, Angel], M.D‘] 20 2] 22 23 24 25 27 28 the facts alleged in the pleading are deemed to 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 on 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 or conclusionsbf law 0r fact.” (George v. Automobile Club ofSouthern California (201 1) 201 Cal.App.4th 1112, 1120.) A demumer will lie where the allegations and matters subj ect t0 judicial notice clearly disclose a defense or bar t0 recovery. (Casterson v. Superior Court (Cardoso) (2002) 101 Cal.App.4th 177, 183.) III. Requests for Judicial Notice Plaintiff has filed two requests for judicial notice in connection with Dr. Angell’s demurrer, both 0f which are unopposed. His September 28‘“, 2020 request for judicial notice 0f the opinion in County ofButler v. Wolf(W.D. Pa., Sept. 14, 2020, N0. 2:20-CV-677) 2020 WL 5510690 is GRANTED. (Evid. Code, § 452, subd. (d).) His November 6‘11, 2020 request for judicial notice is GRANTED as to a tentative decision after trial in the Superior Court of California, County 0f Sutter, although this Court cannot rely on that decision as authority] (Ex.1). (Evid. Code, § 452, subd. (d).) The November 6‘“ 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 6‘“ 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 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial n0tice].) 1 See Cal. Rules of Court, rule 8.1 l 15(3) (unpublished California opinions “must not be cited or relied on by a court or a party in any other action”); see also Schachter v. Citigroup. Inc. (2005) 126 Cal.App.4th 726, 738 (a trial court ruling has no precedential value). Solomon v. Angeli, ct 01.. Superior Cour! ofCaliform‘a, Cozmry ofSama Clara, Case N0. 20CV365357 4 Order After Hearing on December 3. 2020 [Demurrer to Verified Complaint by Defendant Sonia Y. Angeli, MD] 20 21 22 23 24 25 26 27 28 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, § 125 1 1) and is required by statute to “defend all causes to which the State, or any State officer is a pamy in his 0r her official capacity” (Gov. Code, § 125 12). 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 125 12] that requires that the fact that a state officer is sued in his official capacity, appear from the face 0f 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 to defend a former officer purportedly sued in her persona] capacity for acts within the scope of her employment. (See Gov. Code, § 995 [“...upon request of an employee 0r former employee, a public entity shall provide for the defense 0f any civil action 0r proceeding brought against him, in his official or individual capacity or both, 0n account of an act or omission in the scope 0f his employment as an employee of the public entity”].) Plaintiff cites n0 authority t0 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 Attomey General may not represent Angeli in this action accordingly lacks merit, and he does not state a claim against Angell on 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 Angcll requests this Court rule on her demurrer to the lO lI l6 l7 18 l9 20 21 22 23 24 25 26 27 28 verified complaint.”].) As suggested by Dr. Angell, the Court will rule on her demurrer as to the Complaint, but will consider the theories set forth in the Petition in order to assess whether plaintiff should be granted leave to amend his Complaint t0 state a claim against Dr. Angel] that is not already included in that pleading. 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, or 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, or coercion, 0r attempts t0 interfere by threat, intimidation, 0r coercion, with the exercise 0r enjoyment by any individual 0r individuals 0f rights secured by the Constitution 0r laws 0f the United States, 0r 0f the rights secured by the Constitution or 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 Ca1.App.4th 860, 882, quoting former CACI N0. 3025; Julian v. Mission Community Hospital (2017) 1 1 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 of Santa Clara’s order that a ‘ violation of that order is a misdemeanor punishable with a fine and/or imprisonment. Notably, Dr. Angell’s March 19‘“ order does not itself include any such provision. Regardless, a general statement of the legal consequences 0f violating a widely applicable order does not constitute a threat of violence against plaintiff. (See Cabesuela v. Browm‘ng-Ferris Industries ofCalifornia, 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 pelpetrated against the Plaintiff directly, particularly because the Plaintiff would be, or might be, be viewed by the authorities as a dangerous parolee” Solomon v, Ange”. e! al., Superior Cour! ofCalfomia, County ofSanla Clara, Case No. 20CV365357 6| Order After Hearing on December 3, 2020 [Demurrer to Verified Complaint by Defendant Som‘a Y. Angel], M.D.] lO lI l3 l4 15 16 l7 18 20 21 22 23 24 25 26 27 28 did not state a claim under the Bane Act because they merely “imp1[ied] that plaintiff might be subjected" to violence by the police,” but “in no way show[ed] actual violence 0r intimidation by the threat 0f violence”].)2 Plaintiff thus fails to allege a Bane Act violation by Dr. Angell, and there is n0 indication that he could amend his pleadings to do so. VI. Claims for Iniunctive and Declaratory Relief In addition t0 his allegations regarding the Bane Act, plaintiff seeks injunctive and declaratory relief against Angell, most clearly on the theory that she was not properly appointed the “State Public Health Officer,” and thus had no authority t0 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 of 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 confmnation by the Senate].) Plaintiff appears to contend that the Governor appointed Dr. Angell Director 0f the State Department of Public Health, and not “State Public Health Officer.” (See Compliant, 1H] 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.” (1d,, subd. (b); see also subd. (c) [statutory references to “director,” “the Director 0f Health Services,” “the Director of Public Health,” 0r the “Director of the State Department of Public Health” refer t0 the State Public Health Officer].) Plaintiff fails to cite any authority supporting the proposition that the Governor could not appoint Dr. Angell t0 both roles at once or was required to appoint the “State Public Health Officer” in a particular manner. With regard t0 confirmation by the Senate, the Government Code provides: When an office, the appointment to which is vested in the Governor and Senate, either becomes vacant 0r the term of the incumbent thereof expires, the Governor 2 Cornell v. City & County ofSan Francisco (2017) I7 Cal.App.5th 766, which addressed an alleged unlawful arrest, is not to the contrary. Cornell held that there is n0 requirement that a Bane Act plaintiff prove threat, intimidation or coercion that is tmnsactionally independent from an unlawful arrest, reasoning that the Legislature clearly intended to include law enforcement officers within the scope of Section 52.1 where the requisites ofthe statute are otherwise met. (At'p. 800.) Cornell does not undermine the Act‘s requirement of an actual act or threat 0f violence. Here, ' plaintiff does not allege he was arrested or threatened with arrest. Solomon v. Angeli. e! at, Superior Court ofCaIU'orrxia, Conmy ofSama Ciara, Case No. 20CV365357 7 Order After Hearing on December 3, 2020 [Demurrer Io Verified Compiaim by Defendan! Sonia Y. Angeli, MDJ 20 21 22 23 24 25 26 27 28 Parients Assn. v. City ofAnaheim (2010) 187 Cal.App.4th 734, 75 1 .) The Court accordingly declines to address the merits of these theories on demurrer, except to hold that Dr. Angell is not a proper defendant t0 any such claims in light of her resignation. VII. Conclusion and Order Dr. Angell’s demurrer t0 the complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to plaintiff‘s claims against Dr. Angel] personally. The Court expresses no opinion on the merits of any claims plaintiffmay seek to assert against the current State Public Health Officer or the other defendants. IT IS SO ORDERED. Dated: \ 2-} 5 l LDLD H- W" Lx-u-‘H Honorable Peter H. Kirwan Judge of the Superior Court Solomon v. Ange”. er al., Superior Court ofCalg‘famt‘a. County ofSanta Clara, Case No. 20CV365357 Order After Hearing an December 3, 2020 [Demurrer (0 Verified Complain! by Defendant Sonia Y. Angel], M.DJ SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE I91 Noam FIRST STREET SANJOSE, CALIFORNIA 95113 CIVIL DIVISION gm E DEC 0 3 2020 RE: ‘ Sean Solomon vs Sonia Angell, MD et al rk of the Court Case Number: 200V365357 Supedo r Coumy oz Santa cm DEPUTY PROOF 0F SERVICE ORDER AFTER HEARING 0N DECEMBER 3, 2020 was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the VoiceITDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: I declare that I served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below. and by depositing the envelope with postage fully prepaid. In the United States Mall at San Jose, CA on December O4. 2020. CLERK OF THE COURT. by Shantel Hernandez. Deputy. cc: Sean Patn‘ck Solomon 1223 Pappani Drive GILROY CA 95020 Michael C Serverian Office ofthe County Counsel 70 W Hedding St 9t] Floor San Jose CA 951 10-1770 Jennevee Han deGuzman PO Box 944255 Sacramento CA 94244 cw-9027 REV 12/03/16 PROOF OF SERVICE
