Olvera v. City of Modesto et al

Filing 60

ORDER GRANTING Plaintiff's Motion for Reinstatement of Civil Code Section 52.1 Claim (Doc. 51 ), Signed by District Judge Anthony W. Ishii on 2/12/2015. (Arellano, S.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CASE NO. 1:11-CV-00540-AWI-GSA
ARMANDO OLVERA ,

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Plaintiff

ORDER GRANTING PLAINTIFF’S
MOTION FOR REINSTATEMENT OF
CIVIL CODE SECTION 52.1 CLAIM.

v.

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CITY OF MODESTO, a municipal
corporation, and MARK ULRICH,

Defendants
I. BACKGROUND

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On January 11, 2011, Plaintiff Armando Olvera (“Plaintiff”), filed a complaint in state

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court against seven named defendants; Modesto Police Department officers Bradley Beavers,

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Brian Keiber, Randy Raduechel, Sgt. Timothy Helton, the Modesto Police Department, the City of

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Modesto and Mark Ulrich. Plaintiff brought ten claims; two claims under Title 42 U.S.C. section

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1983 for constitutional violations; a claim under Article 1, section 13 of the California

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Constitution; a claim under section 52.1 of the California Civil Code; claims for battery, assault

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with a deadly weapon, assault, and false arrest; and a claim under California Civil Code Section

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3342 for liability for dog bite damages; and a claim for negligence. On March 31, 2011, the case

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was removed to the Eastern District of California, Fresno Division. Discovery ensued.

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On January 25, 2013, Plaintiff‟s claims against defendants Bradley Beavers, Brian Keiber,
Randy Raduechel and Sgt. Timothy Helton were dismissed by stipulation (“the Stipulation”).

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Plaintiff‟s cause of action under Title 42 U.S.C. section 1983 against City of Modesto was

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dismissed, as was Plaintiff‟s sixth cause of action for “assault by means of force likely to produce

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great bodily injury.” Plaintiff‟s cause of action under California Civil Code section § 52.1 was also

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dismissed but without prejudice “to its renewal and further litigation in this action if the current

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case law requiring an act or threat of violence separate from the constitutional violation claimed is

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changed so as to remove that requirement prior to the completion of the trial in this action.” Doc.

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22 at 2.

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On March 8, 2013, Defendants filed a motion for summary judgment. This court issued an
order on August 6, 2014, granting summary judgment in favor of the Defendants on the Title 42

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U.S.C. section 1983 claim based on the Fourteenth Amendment and on the Fourth Amendment

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prohibition of unreasonable searches, as well as Plaintiff‟s Cal. Civ. Code section 3342 claim but

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denied summary judgment on all other remaining claims. Doc. 52 at 27. On July 9, 2014, Plaintiff

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brought this motion to reinstate his cause of action under California Civil Code section § 52.1

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pursuant to the Stipulation.

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II. LEGAL STANDARD

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This court has held that “It is boilerplate law that oral agreements and stipulations made in

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the presence of the court are enforceable, especially when acted upon.” Hamilton v. Willms, 2007

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WL 707518, at *10 (E.D. Cal. Mar. 6, 2007) (emphasis removed); See also Kohring v. Robertson,

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137 Idaho 94, 44 P.3d 1149 (2002). The Ninth Circuit has recognized that stipulations serve both

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judicial economy and the convenience of the parties, thus should be enforced unless there are

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indications of involuntary or uninformed consent. See CDN Inc. v. Kapes, 197 F.3d 1256, 1258

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(9th Cir. 1999); See also United States v. McGregor, 529 F.2d 928, 931 (9th Cir. 1976).

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III. DISCUSSION
1. Procedure
The parties to this action stipulated, and this court signed into order on January 25, 2013,

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that the Plaintiff‟s cause of action for California Civil Code § 52.1 (“the Bane Act”) is to be

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dismissed without prejudice “to its renewal and further litigation in this action if the current case

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law requiring an act or threat of violence separate from the constitutional violation claimed is
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changed so as to remove that requirement prior to the completion of the trial in this action.” Doc.

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22 at 4. Defendants assert that the Plaintiff is seeking to amend his complaint pursuant to Federal

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Rule of Civil Procedure 15. Defendants argue that allowing the amendment would cause them

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undue prejudice due to the time and costs already incurred from defending the action. Doc. 54 at 3.

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Defendant‟s argument is irrelevant in light of their stipulation to allow the claim to be reinstated1.

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Plaintiff is not seeking to amend his claim pursuant to Federal Rule of Civil Procedure 15, but

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rather is seeking to reinstate the claim pursuant to the Stipulation. No evidence has been offered,

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nor have the Defendant‟s asserted, that the Stipulation was not entered into voluntarily or that

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there was a lack of informed consent. The Stipulation therefore controls the reinstatement of the

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claim, not Federal Rule of Civil Procedure 15. Thus, in enforcing the stipulation this court must

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determine whether the law regarding Plaintiff‟s claim under the Bane Act has so changed in order

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to allow the claim to be reinstated.

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2. Merits
California Civil Code § 52.1 allows a private civil cause of action “if a person or persons,

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whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts

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to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual

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or individuals of rights secured by the Constitution or laws of the United States, or of the rights

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secured by the Constitution or laws of this state.”

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Prior to the stipulation, the court in Shoyoye v County of Los Angeles (2012) Cal.App.4th

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947 (Shoyoye) held that “where coercion is inherent in the constitutional violation alleged . . . the

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statutory requirement of „threats, intimidation, or coercion‟ is not met. The statute requires a

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showing of coercion independent from the coercion inherent in the wrongful detention itself.”

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Shoyoye v. Cnty. of Los Angeles, 203 Cal. App. 4th 947, 959, 137 Cal. Rptr. 3d 839, 849 (2012).

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In Shoyoye, the plaintiff was wrongfully detained in county jail. His initial detention was justified,

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but due to a clerical error, the country overdetained him for 16 days. When the mistake was

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discovered and the plaintiff was released he brought a cause of action pursuant to the Bane Act.

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The court concluded “not every wrongful detention is a violation of [the Bane Act],” and the

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Defendants may file a motion to reopen discovery.

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evidence did not establish the “threats, intimidation, or coercion” necessary for a Bane Act

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violation. Id. at 959. The court also said there is no Bane Act violation “where the overdetention

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occurs because of mere negligence rather than a volitional act intended to interfere with the

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exercise or enjoyment of the constitutional right.” Id. at 960.

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Since Shoyoye, and subsequent to the stipulation, courts have not interpreted Shoyoye so

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broadly as to foreclose all claims where the coercion is inherent in the constitutional violation

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alleged. Most have distinguished Shoyoye on the basis that conduct which is intentional or

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egregious does not implicate Shoyoye at all. See, e.g., Jones v. Penhollow, 2014 WL 347033, at

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*11 (Cal. Ct. App. Jan. 31, 2014). In Jones, a state appellate court distinguished Shoyoye in a case

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where officers attacked a prisoner in his cell. The court held that the conduct “went beyond the

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unintentional or incidental coercion in Shoyoye, and it is not necessarily conduct inherent in all

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violations of the right to protection from restraint or harm.” Id. (emphasis added). The court went

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on to say “Shoyoye does not compel us to conclude that when, as here, „deliberate or spiteful‟

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force accomplishes a knowing violation of the right to protection from bodily harm, the Bane Act

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requires an additional showing of conduct violating some other separate right.” Id.

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Several federal cases have reached the same or a similar conclusion in interpreting

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Shoyoye’s effect on actions under the Bane Act. Courts in the Northern District have held on a

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number of occasions that the relevant distinction is not whether there was an act or threat separate

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from the constitutional violation claimed but whether the conduct giving rise to the claim was

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intentional. See Holland v. City of San Francisco, 2013 WL 968295, at *10 (N.D. Cal. Mar. 12,

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2013) (holding that the harms alleged were brought about by intentional conduct, in contrast to the

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negligent overdetention in Shoyoye and therefore may reasonably [be] perceived as threatening,

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intimidating, or coercive); M.H. v. Cnty. of Alameda, 2013 WL 1701591, at *7 (N.D. Cal. Apr. 18,

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2013) (holding that the relevant distinction for purposes of the Bane Act is between intentional

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and unintentional conduct, and ... Shoyoye applies only when the conduct is unintentional). The

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Northern District does not stand alone in this interpretation. In the Eastern District this

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interpretation of Shoyoye has been adopted as well. See Dillman v. Tuolumne Cnty., 2013 WL

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1907379, at *21 (E.D. Cal. May 7, 2013) (holding that where Fourth Amendment unreasonable
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seizure or excessive force claims are raised and intentional conduct is at issue, there is no need for

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a plaintiff to allege a showing of coercion independent from the coercion inherent in the seizure or

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use of force).

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This court will not now decide the exact implications of Shoyoye to Plaintiff‟s case. For the

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purposes of deciding this motion, it is enough to say that the subsequent case law has not

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interpreted Shoyoye as requiring a claim under the Bane Act to allege an act or threat of violence

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separate from the constitutional violation claimed. Since the parties to this action stipulated to

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allow reinstatement of this claim if subsequent case law changed the then-existing uncertain status

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of the law, the claim should be reinstated. Accordingly, Plaintiff‟s motion to reinstate his claim

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under California Civil Code § 52.1 must be granted.

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IV. ORDER
The Plaintiff‟s motion for reinstatement of California Civil Code Section 52.1 claim is
hereby GRANTED.

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IT IS SO ORDERED.
Dated: February 12, 2015
SENIOR DISTRICT JUDGE

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