The opinion
Filed 11/26/24; Certified for Partial Publication 12/23/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
LORI ANN WILEY,
F086953
Plaintiff and Appellant,
(Super. Ct. No. BCV-22-101350)
v.
KERN HIGH SCHOOL DISTRICT et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Kern County. Bernard C.
Barmann, Judge.
Law Offices of David Shaker and David Shaker; Law Offices of Robert L.
Bastian, Jr., and Robert L. Bastian, Jr., for Plaintiff and Appellant.
Carpenter Rothans & Dumont, Louis R. Dumont, and Katrina Joy Valencia;
Pollak, Vida & Barer, Daniel P. Barer and Karen M. Stepanyan for Defendants and
Respondents.
-ooOoo-
Plaintiffs Lori Ann Wiley (Wiley) and Charles Wallace Hanson (Hanson), who is
not a party to this appeal (sometimes collectively referred to as plaintiffs), allegedly
engaged in a verbal altercation at a Kern High School District (KHSD) high school with
various students, staff, and a member of school law enforcement, Michael Whiting, after
a high school employee blocked a handicap parking spot Wiley and Hanson intended to
use. Wiley submitted a written complaint about the incident to the school. Whiting later
submitted a report recommending various misdemeanor charges related to the verbal
altercation. Wiley was later cited, and a prosecutor filed a criminal complaint against her
with three misdemeanor charges related to the verbal altercation. After a mistrial, the
court dismissed Wiley’s charges in furtherance of justice.
Wiley sued, as relevant here, defendants and respondents Edward Komin, Michael
Whiting, Luis Peña, and Steven Alvidrez, all KHSD police officers, for violating her First
Amendment rights to be free of retaliation and malicious prosecution for her exercise of
free speech and abuse of process. She brought, in relevant part, causes of action under
42 U.S.C. section 1983, the Bane Act (Civ. Code, § 52.1), and common law torts for
intentional infliction of emotional distress and negligence.
The trial court sustained respondents’ demurrer to Wiley’s causes of action in the
second amended complaint on a multitude of grounds without leave to amend. 1 The
court also granted a motion to strike Wiley’s punitive damages allegations without leave
to amend. On appeal, Wiley contends the court erred in its ruling, that she pled facts
sufficient to state her causes of action, and her causes of action are not barred by federal
qualified immunity and state statutory immunity.
We affirm in part and reverse in part.
BACKGROUND
Wiley and Hanson filed their initial complaint on June 1, 2022, and a first
amended complaint on July 5, 2022. On November 8, 2022, plaintiffs filed a request for
dismissal with prejudice as to KHSD, which was granted. The record also contains a
1 The trial court also sustained the demurrer in part with and without leave to amend
as to the causes of action brought by Hanson that are not part of this appeal.
2.
certificate of service showing a request for dismissal with prejudice as to Edward Komin
in his official capacity. Later, this was confirmed in the “Joint Stipulation” recitals and
order filed on November 9, 2022. In that order, the trial court ordered plaintiffs to file a
second amended complaint based on the parties’ stipulation. On December 15, 2022,
plaintiffs filed their second amended complaint (SAC).
Factual Allegations
We summarize the SAC’s pertinent allegations as follows: 2
On June 2, 2021, Wiley and Hanson arrived in a vehicle at a KHSD high school
campus to pick up yearbooks for Wiley’s children. A school employee stopped her
vehicle, blocking the designated handicap parking space that the driver of the vehicle
intended to use. “This caused consternation and ultimately a verbal argument which
escalated as other [KHSD] employees became involved, including [KHSD] Police
Officer Michael Whiting and [KHSD] Campus Supervisor Sabrina Fowler. [¶] …
Ultimately, a campus employee provided Wiley with the two yearbooks. Both Wiley and
Hanson left … in their car.”
The next day, Wiley e-mailed a complaint about the incident to the school. On
June 8, 2021, based on Wiley’s complaint, KHSD Police Chief Edward Komin initiated
an investigation into district police officer Michael Whiting. The results of the
investigation into Whiting’s conduct were pending at the time of the SAC’s filing.
On June 15, 2021, a school district compliance officer issued a summary of the
investigation into Wiley’s complaint. The summarizing officer explained that at least one
district employee engaged in rude conduct and was subject to corrective personnel action.
The officer found that employee made a “highly inappropriate statement” to Wiley,
2 Because the demurrer addressed causes of action related to both plaintiffs Wiley
and Hanson, but only Wiley appeals here, we recite only those factual allegations related
to Wiley’s claims.
3.
stating, “You are a horrible woman,” though Wiley contends the employee said, “You are
a horrible mother.”
On June 24, 2021, Whiting issued an incident report recommending charges
against Wiley for disturbing a public school or meeting (Ed. Code, § 32210), annoying a
child under 18 years of age (Pen. Code, § 647.6, subd. (a)(1)), challenging or fighting in
public (Pen. Code, § 415, subd. (1)), using offensive words in public (Pen. Code, § 415,
subd. (3)), and violating civil rights (Pen. Code, § 422.6). Wiley claims Whiting’s report
contained “no evidence which could be reasonably construed as constituting probable
cause that either Wiley or Hanson committed any crime [and] cast both of them in an
extremely unfavorable light.”
Whiting also prepared two probable cause declarations; one declaration accusing
Hanson of four misdemeanor offenses and the second declaration accusing Hanson of
felony vandalism but prepared none as to Wiley.
KHSD Police Chief Edward Komin reviewed Whiting’s report and “approved both
the investigation and subsequent arrests.” However, an arrest warrant issued against
Hanson only, and he was subsequently arrested at Wiley’s home on July 15, 2021. KHSD
police officers Luis Peña and Steven Alvidrez conducted Hanson’s arrest. Wiley was not
arrested; she signed a citation issued against her delivered, presumably, by Peña and
Alvidrez. 3
On July 9, 2021, a criminal complaint issued against Wiley, charging her with
three misdemeanors: (1) disturbing the peace (Pen. Code, § 415); (2) disturbing any
public school or meeting (Ed. Code, § 32210); and (3) disrupting school activities (Ed.
Code, § 44811).
3 Wiley does not allege that either Peña or Alvidrez engaged in any other conduct
related to her. She does not allege that they participated in any investigation into or
contributed any evidence toward the charges brought against her.
4.
A subsequent public records request to the high school uncovered an April 29,
2021 e-mail from an employee. Wiley did not allege that this employee participated in
the June 2, 2021 verbal altercation at the school. The e-mail discussed Wiley’s request to
“properly place her children,” and concluded: “So good luck with this situation… Erika,
you must be soooo happy to be able to walk away from this, although complaints go to
HR! So you may get to talk to Lori on a daily basis. LOL! [¶] Let’s get this crap done
and in place, people! I don’t want to have to lie to her on the phone anymore.”
At some point during the criminal proceedings, “Wiley asked the prosecutor
responsible for prosecuting both matters why he was not dropping the factually and
legally meritless charges, [and] that prosecutor replied with words to the effect that Wiley
and Hanson had angered the [KHSD] employees involved by threatening a civil lawsuit
against them.”
On January 3, 2022, after a mistrial, “the court dismissed all three charges in the
furtherance of justice.”
Motion to Strike
On January 17, 2023, defendants Komin, Whiting, Peña, and Alvidrez filed a
motion to strike portions of the SAC. Specifically, defendants requested the court to
strike the SAC’s allegations regarding (1) punitive damages against Komin, Whiting,
Peña, and Alvidrez for failure to plead sufficient facts; (2) KHSD or its employees, other
than Komin, Whiting, Peña, and Alvidrez, because KHSD was dismissed with prejudice
from the action; and (3) various portions of the SAC based on defendants’ immunity to
various causes of action under Government Code section 821. 4 Wiley filed an opposition
to the motion to strike.
4 Government Code section 821 provides that “[a] public employee is not liable for
an injury caused by his adoption of or failure to adopt an enactment or by his failure to
enforce an enactment.”
5.
Demurrer
On January 17, 2023, defendants Komin, Whiting, Peña, and Alvidrez filed a
demurrer to the SAC. Defendants argued that: (1) plaintiffs failed to state facts sufficient
to constitute a cause of action pursuant to Government Code section 815, subdivision (a),
requiring claims against public entities and their employees to be based on statute;
(2) plaintiffs failed to allege their causes of action with specificity (Code Civ. Proc.,
§ 430.10, subds. (e)–(f)); (3) plaintiffs failed to state a claim for negligence under
Government Code sections 814, 815, subdivision (a), 820, and 1714; (4) defendants are
immune from plaintiffs’ Bane Act (Civ. Code, § 52.1) (Bane Act) and intentional
infliction of emotional distress claims under Government Code sections 821.6 and 815.2;
and (5) defendants are entitled to qualified immunity for the causes of action based on
42 U.S.C. section 1983.
Wiley submitted an opposition to the demurrer. Though she stated she should be
“granted leave to amend where indicated,” she did not allege any new facts or new legal
theories to cure any deficiencies in the SAC.
The Trial Court’s Ruling
On May 5, 2023, the trial court issued a mixed ruling on the demurrer, sustaining
some causes of action as to some defendants with or without leave to amend, and
overruling other causes of action as to some defendants. 5 We note that, on appeal, Wiley
only addresses those aspects of the court’s ruling pertaining to Whiting and Komin that
were sustained without leave amend as to the SAC’s first, sixth, tenth, eleventh, and
twelfth causes of action. 6
5 Due to the trial court’s complicated, multifaceted ruling, we refrain from an
exhaustive summary here. Given our de novo review, we include below only those facets
of the court’s ruling relevant to our analysis.
6 Insofar as Wiley intends her appeal to address the other named defendants,
Alvidrez and Peña, Wiley either (1) fails to address why the court erred in sustaining the
demurrer as to these defendants without leave to amend, forfeiting these arguments on
6.
In the same ruling, the trial court granted, in part, both with and without leave to
amend as to specific portions of the SAC, and denied, in part, the motion to strike. The
court determined that, as to Whiting, plaintiffs did not address defendants’ arguments,
conceding the motion as to Whiting. The court granted the motion as to Komin with
leave to amend. Finally, the court granted, without leave to amend, and denied, separate
requests to strike parts of the SAC.
On September 20, 2023, upon ex parte application by Wiley for a judgment of
dismissal as to Wiley only, without objections by defendants, the trial court issued a
judgment of dismissal as to all causes of action brought by Wiley against KHSD, Komin,
Whiting, Peña, and Alvidrez.
On October 4, 2023, Wiley filed her notice of appeal.
DISCUSSION
I. Standard of Review
We review an order sustaining a demurrer without leave to amend de novo,
examining the pleaded facts to see whether they are sufficient to state any cause of action
under any legal theory. (Summerfield v. City of Inglewood (2023) 96 Cal.App.5th 983,
992.) Though we assume the truth of all properly pleaded facts, “ ‘[w]e do not assume
the truth of contentions, deductions, or conclusions of fact or law….’ ” (Ibid.)
appeal (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [absence of
cogent legal argument or citation to authority forfeits the contention]), or (2) is precluded
from appealing those causes of action sustained as to these defendants with leave to
amend (Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 532 [“ ‘[o]rders
sustaining demurrers are not appealable’ ”]).
Given the space required to parse each ruling, after our exhaustive review, we
believe this general pronouncement sufficient and proceed, as the parties do as well, only
as to those causes of action sustained without leave to amend as to Whiting and Komin.
7.
II. 42 U.S.C. Section 1983
Wiley’s first cause of action alleges that Whiting, Peña, and Alvidrez violated,
under 42 U.S.C. section 1983 (“section 1983”), her First, Fourth, and Fourteenth
Amendments of the United States Constitution. She alleges they did this via (1) false
arrest; (2) use of unreasonable force; (3) malicious prosecution; (4) abuse of process; and
(5) retaliation. 7
A. Abuse of Process
We agree with respondents that Wiley fails to sufficiently allege a claim for abuse
of process.
A section 1983 claim for abuse of process looks to state law for its elements. (Cox
v. Mariposa County (E.D. Cal. Sept. 30, 2022) 2022 WL 4664129, at p. *9.) Under
California law, abuse of process is not the appropriate vehicle to attack the initiation of a
police investigation. While a claim for malicious prosecution challenges the wrongful
initiation of a lawsuit, the tort of abuse of process is founded upon “subsidiary activity
within the lawsuit.” (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 528, italics
added.)
Abuse of process “concerns the misuse of the tools the law affords litigants once
they are in a lawsuit (regardless of whether there was probable cause to commence that
lawsuit in the first place).” (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 40.) Wiley cites
no case law otherwise, and, to the contrary, the tort does not address “ ‘ “the wrongful
initiation of criminal or civil proceedings….” ’ ” (Spellens v. Spellens (1957) 49 Cal.2d
7 Given Wiley does not address Peña and Alvidrez, and the allegations pertinent to
her involve no conduct by Peña or Alvidrez, we conclude the trial court properly
sustained the demurrer to this cause of action without leave to amend as to Peña and
Alvidrez. Further, Wiley only addresses her rights under the First Amendment and never
alleges she was arrested or subjected to unreasonable force in violation of her Fourth or
Fourteenth Amendment rights. We thus do not consider, and Wiley never raises, her false
arrest or unreasonable force claims.
8.
210, 231; Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986)
42 Cal.3d 1157, 1169 [“the mere filing or maintenance of a lawsuit—even for an
improper purpose—is not a proper basis for an abuse of process action”].)
Here, Wiley alleges no such abuse during her pending criminal proceedings, only
that Whiting wrongfully initiated a criminal investigation and further proceedings against
her. This is not alleged abuse of process but malicious prosecution.
The trial court properly sustained respondents’ demurrer to Wiley’s abuse of
process claims under her section 1983 cause of action, as well as her sixth cause of action
under the Bane Act based on abuse of process. 8
B. Malicious/Retaliatory Prosecution
We agree with respondents that (1) Wiley fails to state a claim for malicious/
retaliatory prosecution, and (2) Whiting is protected from liability under the doctrine of
qualified immunity.
1. Legal Standards
To state a claim under section 1983, plaintiff must allege (1) the conduct
complained of was committed by a person acting under color of state law, and (2) that the
conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution
or laws of the United States. (Jensen v. City of Oxnard (9th Cir. 1998) 145 F.3d 1078,
1082.)
The elements of a section 1983 claim for malicious/retaliatory prosecution are
defined by state law. (See Rezek v. City of Tustin (9th Cir. 2017) 684 Fed. Appx. 620, 621
[“the elements of Rezek’s malicious prosecution claims are controlled by California state
law”]; Awabdy v. City of Adelanto (9th Cir. 2004) 368 F.3d 1062, 1066 [“we have
8 We address the remainder of Wiley’s Bane Act claim based on malicious
prosecution below.
9.
incorporated the relevant elements of the common law tort of malicious prosecution into
our analysis under § 1983”].)
Under California law, the elements of a cause of action for malicious prosecution
are: “ ‘ “ ‘that the prior action (1) was commenced by or at the direction of the defendant
and was pursued to a legal termination in [the] plaintiff’s [] favor [citations]; (2) was
brought without probable cause [citations]; and (3) was initiated with malice
[citations.]’ ” ’ ” (Jackson v. Lara (2024) 100 Cal.App.5th 337, 343.) 9 This tort “is
disfavored and has therefore been limited for policy reasons.” (Ibid.)
A section 1983 claim for malicious prosecution lies “against a government
investigator who submits false and material information in a warrant affidavit.” (Harmon
v. City of Pocatello (2021) 854 Fed. Appx. 850, 853.) “To succeed on such a claim, the
plaintiff ‘must show that the investigator made deliberately false statements or recklessly
disregarded the truth in the affidavit and that the falsifications were material to the
finding of probable cause.’ ” (Id. at pp. 853‒854.)
Though Wiley brings a malicious/retaliatory prosecution claim under section 1983,
not a retaliatory arrest claim, we must disaggregate the standards for each given unclarity
in the briefing.
Under section 1983, in malicious/retaliatory prosecution cases, a plaintiff must
plead and prove the absence of probable cause for the underlying criminal charge.
9 We observe that no party or the court raised the issue of whether the criminal case
against Wiley was terminated in her favor. We note that the SAC only alleges that
Wiley’s criminal charges were dismissed with prejudice in furtherance of justice.
However, this does not mean the termination of charges occurred in her favor: a showing
that criminal charges were dismissed in furtherance of justice does not satisfy the
favorable termination requirement. (De La Riva v. Owl Drug Co. (1967) 253 Cal.App.2d
593, 600.) Such a termination is not definitionally inconsistent with Wiley’s guilt; thus,
we do not believe that the SAC sufficiently alleges a favorable termination.
Nevertheless, because no party raised this issue below and the trial court did not address
it, we are precluded from deciding this issue on appeal.
10.
(Nieves v. Bartlett (2019) 587 U.S. 391, 399–400 (Nieves).) “It is not enough to show
that an official acted with a retaliatory motive and that the plaintiff was injured—the
motive must cause the injury. Specifically, it must be a ‘but-for’ cause, meaning that the
adverse action against the plaintiff would not have been taken absent the retaliatory
motive.” (Id. at pp. 398‒399.)
“[The] plaintiffs in retaliatory prosecution cases [must] show more than the
subjective animus of an officer and a subsequent injury; [the] plaintiffs must also prove
as a threshold matter that the decision to press charges was objectively unreasonable
because it was not supported by probable cause.” (Nieves, supra, 587 U.S. at pp. 400‒
401, citing Hartman v. Moore (2006) 547 U.S. 250, 260–261.)
Federal courts apply this standard to retaliatory prosecution cases, including First
Amendment violations. (See, e.g., Grisham v. Valenciano (5th Cir. 2024) 93 F.4th 903,
909 [applying Nieves standard to a 1st Amend. retaliatory criminal prosecution claim];
Pallas v. Accornero (N.D. Cal. Aug. 22, 2019) 2019 WL 3975137, at p. *5 [applying
Hartman/Nieves standard to a retaliatory prosecution claim].)
In retaliatory arrest cases, the plaintiff must still generally plead and prove the
absence of probable cause, but Nieves established “a narrow qualification … where
officers have probable cause to make arrests, but typically exercise their discretion not to
do so.” (Nieves, supra, 587 U.S. at p. 406.) This exception requires “objective evidence
that [the plaintiff] was arrested when otherwise similarly situated individuals not engaged
in the same sort of protected speech had not been.” (Id. at p. 407.) Though Wiley claims
this exception, it does not apply. She never alleges that she was arrested or even
detained, only that she was cited. Thus, Wiley must plead an absence of probable cause
to properly plead her malicious/retaliatory prosecution claim. 10
10 In her reply brief, Wiley embarks on a lengthy, complicated, confusing, and legally
unsupported excursion to circumnavigate this exception. She claims that Gonzalez v.
Trevino (2024) 602 U.S. 653 (Gonzalez), which clarified the standard for evidence
11.
Probable cause is determined based on the totality of the circumstances. (See
United States v. Valencia-Amezcua (9th Cir. 2002) 278 F.3d 901, 906.) It is “ ‘a
reasonable ground for belief of guilt.’ ” (Maryland v. Pringle (2003) 540 U.S. 366, 371.)
It requires “only a probability or substantial chance of criminal activity, not an actual
showing of a crime.” (People v. Diaz (2023) 97 Cal.App.5th 1172, 1178.)
“ ‘ “It is not necessary that [the malicious prosecution defendant] shall institute an
investigation of the crime itself, or seek to ascertain whether there are any other facts
relating to the offense, or try to find out whether the accused has any defense to the
charge. He is not required to exhaust all sources of information bearing upon the facts
required for the here-inapplicable Nieves exception for retaliatory arrests, somehow
broadened the Nieves exception to apply to retaliatory prosecution claims.
This is a borderline frivolous argument. Nothing in Gonzalez suggests the court
addressed the scope of this exception. Only Justice Alito’s solitary concurring opinion
suggested the exception should fall beyond “split-second” arrests, but not even he
suggested it should go beyond “arrests” to retaliatory prosecutions. (Gonzalez, supra,
602 U.S. at pp. 668‒669, 673 (concur. opn. of Alito, J.) [“Nieves applies to all retaliatory-
arrest claims brought under § 1983”].) We refuse to interpret Supreme Court precedent,
as Wiley claims we should, “based more on what the Gonzalez opinion and concurrences
didn’t say, than what they did.”
Further, Wiley’s argument that Gonzalez somehow leads to the conclusion that a
Ninth Circuit decision, Ford v. City of Yakima (9th Cir. 2013) 706 F.3d 1188 (Ford),
abrogated in part by Nieves, supra, 587 U.S. at p. 397, is good law is similarly bereft of
support. Though Ford held a plaintiff need not plead an absence of probable cause for
retaliation, the Ford plaintiff brought a claim based on officers’ decision to detain him for
his speech while in custody for a noise violation, rather than issuing a citation. (Ford, at
p. 1197 (dis. opn. of Callahan, J.).) Thus, Ford is not only factually distinguishable from
this case, but the Ninth Circuit concluded that “Nieves abrogated Ford … to the extent
those cases held that a plaintiff can prevail on a First Amendment retaliatory arrest claim
regardless of whether probable cause existed for the arrest.” (Ballentine v. Tucker (2022)
28 F.4th 54, 65, fn. 1.)
All these cases discuss retaliatory arrest or detainment by officers, none of which
Wiley alleges. She only alleges retaliatory prosecution. Nieves clearly defines the
absence of probable cause as a necessary element of pleading a retaliatory prosecution
claim. (Nieves, supra, 587 U.S. at pp. 400–401.) We see no reason to depart from the
high court’s clear standard.
12.
which have come to his knowledge.” …. “The facts within his knowledge may not in
point of law constitute a crime; but, if they are of such character as to induce in the mind
of a reasonable man the honest belief that a crime has been committed, he is justified in
seeking to have the crime punished.” ’ ” (Jackson v. Lara, supra, 100 Cal.App.5th at
pp. 344–345.)
Further, a rebuttable presumption exists when “a prosecutor exercises independent
judgment regarding the existence of probable cause in filing a complaint. The
presumption can be overcome, for example, by evidence that the officers knowingly
submitted false information or pressured the prosecutor to act contrary to her independent
judgment. [Citation.] Unless overcome, however, the presumption insulates the arresting
officers from liability for harm suffered after the prosecutor initiated formal prosecution.”
(Smiddy v. Varney (9th Cir. 1986) 803 F.2d 1469, 1471.) The presumption of the
prosecutor’s independent judgment may be rebutted by evidence that investigating
officers omitted material information in reports provided to the prosecutor. (Borunda v.
Richmond (9th Cir. 1988) 885 F.2d 1384, 1390.)
Finally, government employees are subject to qualified immunity under
section 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was clearly established at the time. (District of Columbia
v. Wesby (2018) 583 U.S. 48, 62–63; Casey N. v. County of Orange (2022) 86
Cal.App.5th 1158, 1177.)
2. Analysis
We agree with respondents and the trial court that Wiley’s section 1983 claim is
deficient for multiple reasons.
First, Wiley fails to adequately allege a violable First Amendment right. She
alleges only that, after a school employee blocked a designated handicap parking space
with a vehicle, Wiley had a “verbal argument which escalated as other [KHSD]
employees became involved, including … Whiting.” “[O]ther employees and students
13.
unnecessarily and unreasonably escalated the intensity of what remained a verbal
dispute.” But Wiley never alleges what she said nor to whom she spoke: either school
employees, minor students, or Whiting, a police officer, who were all present.
But whether the First Amendment protected Wiley’s speech depends on its
content. (See Garcetti v. Ceballos (2006) 547 U.S. 410, 416 [the 1st Amend. protects
speech made “ ‘as a citizen upon matters of public concern’ ”].) The protections
available also depend upon the recipient’s status. (See, e.g., City of Houston Hill (1987)
482 U.S. 451, 461 [“the First Amendment protects a significant amount of verbal
criticism and challenge directed at police officers”]; Bethel School Dist. No. 403 v. Fraser
(1986) 478 U.S. 675, 684–685 [1st Amend. curtails otherwise protected explicit or vulgar
speech as to minors].) Knowing neither the content nor audience of her speech, Wiley
fails to adequately allege that she engaged in a constitutionally protected activity during
the June 2, 2021 verbal altercation.
Given we do not know the content or audience of Wiley’s speech, we cannot
determine the existence or nonexistence of probable cause. The trial court determined
there was probable cause to charge Wiley with at least some crime. But this was wrong.
There are insufficient facts to determine whether Wiley’s conduct passed such a
threshold, or that Whiting (or any other officer) was informed of facts sufficient to
constitute probable cause. However, Wiley scores only a pyrrhic victory. Though we
agree with Wiley that the trial court could not determine the existence of probable cause,
Wiley cannot carry her burden to adequately plead its nonexistence. (Nieves, supra,
587 U.S. at p. 400.)
She alleges nothing about the content of Whiting’s report other than (1) it lacked
probable cause (a legal conclusion we must disregard (WA Southwest 2, LLC v. First
American Title Ins. Co. (2015) 240 Cal.App.4th 148, 151)) and (2) that Whiting “cast
[her] in an extremely unfavorable light.” The latter statement is insufficient. An
unfavorable characterization is not synonymous with a lack of probable cause, especially
14.
given Wiley fails to explain in her pleading what that characterization amounted to.
Failing to allege the factual findings in the report, we can neither determine if probable
cause existed or, fatal to Wiley’s case, it did not exist, which she had to plausibly plead
but did not.
Second, Wiley fails to adequately plead that Whiting’s alleged misconduct was the
“but-for” cause of the prosecution’s decision to initiate criminal proceedings against her.
She never alleges that Whiting knowingly or recklessly submitted false, material
information, omitted material information, or otherwise improperly influenced, directly
or indirectly, the prosecution’s decision to charge her. Nor has she pled that Whiting’s
unfavorable characterization was the “but-for” cause of her injury: “[T]hat the adverse
action against [her] would not have been taken absent the retaliatory motive.” (Nieves,
supra, 587 U.S. at p. 399.)
Abstracting from the dearth of facts about the content of the investigative report,
Wiley does not even allege that Whiting’s investigative report catalyzed the prosecution’s
criminal complaint. She does not allege that Whiting’s report was submitted to the
prosecutor, nor that Whiting prepared any probable cause declarations as to her. In sum,
she does not plead any facts demonstrating that Whiting’s report, probable cause or not,
was the basis for the prosecutor’s decision to charge her. Even if we assume it was, she
does not allege that the sole, well-pled defect in the report—Whiting’s unfavorable
characterization of her—influenced the prosecutor to charge her.
Third, Wiley does not adequately allege a retaliatory animus for the prosecution.
Her reference to a statement by an unnamed prosecutor—that the charges against her
were not dropped because she angered certain KHSD employees by threatening a civil
lawsuit against them—is insufficient. Wiley never alleges if she threatened a lawsuit and
against whom, much less Whiting. Speculation only could conclude that the prosecutor
referred to Whiting, as opposed to other witnesses animated by anger to testify against
her. Nor does the prosecutor’s statement indicate any impropriety in Whiting’s
15.
investigation, even if it evidenced his improper motive, which, alone, is insufficient to
establish malicious/retaliatory prosecution. (Nieves, supra, 587 U.S. at pp. 400–401.)
Wiley urges us to infer a retaliatory motive based on the timing of her complaint to
the school, Whiting’s subsequent incident report, and the criminal complaint brought
against her, but this would not be a reasonable inference under the circumstances, only
speculation, without other facts, such as an adequately alleged absence of probable cause.
(Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1114
[malice may be inferred from lack of probable cause but must be “supplemented with
proof that the prior case was instituted largely for an improper purpose”].)
Though we could imagine a case where a school police officer, such as Whiting,
issues a report recommending charges after a parent, such as Wiley, complains to the
school, and that officer is then subjected to an investigation, we cannot simply assume
that was the case here. Even if we knew the contents of Wiley’s complaint, which,
though undisclosed, at least appears to likely be protected speech, Wiley has not alleged
that Whiting issued the investigative report because Wiley e-mailed her complaint to the
school. But even if she did, again, Whiting’s retaliatory motive is insufficient alone,
without an absence of probable cause, to establish Wiley’s malicious/retaliatory
prosecution claim. (Nieves, supra, 587 U.S. at pp. 400–401.)
Put differently, Wiley has not adequately alleged, beyond a conjectural factual
conclusion, that the criminal proceeding was brought against her for an improper
purpose. Nor has she alleged any facts to support an inference that, absent her complaint
to the school, Whiting would not have recommended charges.
To demonstrate malice and a lack of probable cause, Wiley attempts to
demonstrate deficiencies in the five recommended charges in Whiting’s report. But the
existence of probable cause depends on “only a probability or substantial chance of
criminal activity, not an actual showing of a crime.” (People v. Diaz (2023)
97 Cal.App.5th 1172, 1178, italics added.) As discussed, we cannot attempt to determine
16.
probable cause’s existence or nonexistence for any crime based on her speech because
Wiley fails to allege what she said. We cannot even begin to analyze the sufficiency of
the recommended charges without adequate facts. Even if Wiley could show that those
charges were not supported by probable cause, all Whiting had to show was a substantial
chance that a crime occurred, even if no crime occurred. Yet, we cannot analyze whether
Whiting’s incident report failed to meet this bar given that we do not know its contents.
Fourth, Wiley fails to plead sufficient facts to support a claim that the school’s
“police officers and staff … along with witnesses listed in the resulting police reports,
conspired” to create and initiate “false criminal charges” against Wiley. 11 To establish a
conspiracy to violate Wiley’s rights, she must plead: “(1) [the] formation and operation
of the conspiracy; (2) wrongful conduct in furtherance of the conspiracy; and
(3) damages arising from the wrongful conduct.” (Spencer v. Mowat (2020)
46 Cal.App.5th 1024, 1037.)
But Wiley does not allege how the criminal charges were “false.” She does not
explain who the witnesses in the police reports are, how they promoted false evidence, or,
critically, that Whiting, Komin, or any of the other police officers knew of the false
evidence and willfully submitted it to a prosecutor in furtherance of the alleged
conspiracy.
Wiley alleges that a school employee lied to a non-party investigating officer,
stating she called Wiley a “horrible woman” during the June 2, 2021 altercation, when in
fact she called her a “horrible mother.” But this is not falsification of material evidence.
Wiley alleges a school employee (unalleged to be a witness) admitted to lying to Wiley,
presumably about Wiley’s children’s “placement,” in an April 29, 2021 e-mail, and wrote
to another employee (unalleged to be a witness) that she must be “happy to be able to
11 Notably, only Whiting, Peña, and Alvidrez, not Komin, are named defendants
under this cause of action.
17.
walk away from this.” But Wiley does not explain how an e-mail predating the June 2,
2021 altercation by more than a month is relevant to, or shows in any manner, a
conspiracy to promote false charges against her.
As to the police officers, Wiley only alleges that Whiting prepared an incident
report casting her in an unfavorable light and recommending charges, Komin approved it,
and a prosecutor filed a criminal complaint. Wiley does not plead facts connecting
Whiting or Komin to any common plan to retaliate against her, outside a speculative,
conclusory factual allegation. Nor does she plead, as shown above, that Whiting or
Komin engaged in any wrongful conduct, for she has not pled specific facts that the
incident report lacked probable cause, that any officers submitted false evidence, omitted
exculpatory evidence, or otherwise attempted to wrongfully skew their investigation to
secure erroneous criminal charges against Wiley.
Finally, Wiley’s claim fails because Whiting (and any other officer still implicated)
is entitled to qualified immunity. Wiley needed to adequately plead that Whiting violated
her constitutional rights to defeat Whiting’s qualified immunity. (District of Columbia v.
Wesby, supra, 583 U.S. at pp. 62–63.) But, as discussed, Wiley failed to allege (1) a
violable constitutional right, and (2) conduct by Whiting in violation of that right.
On this point, her analogy to Macias v. Filippini (ED Cal. May 17, 2018) 2018
WL 2264243 (Macias) is unpersuasive. That case involved the imposition of an
“indefinite ban” from a public-school campus due to a parent’s “ ‘speech regarding [the]
Defendants’ treatment of her son, including during school meetings.” (Id. at p. *4.) In
holding that the “indefinite ban” was not a “reasonable restriction on speech,” the Macias
court knew the content of the plaintiff’s speech, and the plaintiff alleged that the
indefinite ban (a prior restraint on speech subject to strict First Amendment standards)
was caused by retaliation for her protected speech. (Id. at pp. *4‒6.) But we lack
sufficient allegations about the contents of Wiley’s speech or that any conduct by Whiting
18.
(or any other officer) motivated by retaliation against Wiley caused the criminal
proceedings against her.
The court properly sustained defendants’ demurrer to Wiley’s section 1983 claim
and abuse of process claims under section 1983 and the Bane Act.
III. The Bane Act
Wiley claims the trial court erred in dismissing her sixth cause of action against
Whiting for malicious prosecution and abuse of process 12 in violation of her California
and federal constitutional rights under the Bane Act. 13 We disagree.
The Bane Act provides for liability for the interference or attempted interference
with a person’s state or federal constitutional rights “by threat, intimidation, or coercion.”
(Civ. Code, § 52.1, subd. (b).) To plead a cause of action under the Bane Act, the plaintiff
must show “(1) intentional interference or attempted interference with a state or federal
12 We disposed of Wiley’s abuse of process claim under the Bane Act earlier.
Further, it appears that Wiley’s opening brief misnumbered her causes of action in her
discussion. Though she discusses her “Twelfth Cause of Action” for negligence, the
SAC’s twelfth cause of action was for a violation of the Bane Act and Unruh Act for
“[r]etaliation/false arrest/excessive force.” To the extent Wiley appeals the order
sustaining the demurrer to this cause of action, we affirm the order as to the false arrest
and excessive force grounds. As discussed, Wiley never alleges that she was subjected to
any arrest or force. As to the “retaliation” ground, this appears to be a restatement of
Wiley’s claim under her sixth cause of action. Because we affirm the order sustaining the
demurrer as to that cause of action, we affirm the order as to the twelfth cause of action as
well.
13 Although Wiley also states this claim under the Unruh Act (Civ. Code, §§ 51, 52),
she does not address her cause of action under the Unruh Act, only under the Bane Act,
on appeal, forfeiting this issue. (Dameron Hospital Assn. v. AAA Northern California,
Nevada & Utah Ins. Exchange (Dameron Hospital) (2022) 77 Cal.App.5th 971, 982.)
Nor do we see how an Unruh Act claim would succeed in this case. Essential to such a
claim, Wiley must, but does not, allege that she was subject to discrimination based on
her identity under a protected class (see Civ. Code, § 51; CACI No. 3060), and that
Whiting was employed by a business establishment (Liapes v. Facebook, Inc. (2023)
95 Cal.App.5th 910, 922), which is impossible given a public school is not a business
establishment (Brennon B. v. Superior Court (2022) 13 Cal.5th 662, 684).
19.
constitutional or legal right, and (2) the interference or attempted interference was by
threats, intimidation or coercion.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th
41, 67.)
First, as discussed, Wiley fails to adequately allege a violable First Amendment
right because she fails to specifically allege the content and audience of her speech. Nor
does she explain the content of her complaint to the school, or whether Whiting, or any
other officer, retaliated against her based on her complaint. Her Bane Act claim is not
cognizable as a violation of a federal right.
Similarly, she fails to allege that her speech was protected under the California
Constitution. Though California’s free speech protections are generally broader than
those provided by the First Amendment (Cal. Const., art. I, § 2; Los Angeles Alliance for
Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 366), those protections do not
extend to “every form of speech or expressive activity,” including “obscenity, fighting
words, defamation, and speech intended, and likely, to incite imminent lawless action.”
(Center for Bio-Ethical Reform, Inc. v. The Irvine Co., LLC (2019) 37 Cal.App.5th 97,
104.) Without any allegations about the content of Wiley’s speech or her audience, we
cannot determine whether she had speech protections defendants could have violated or
attempted to violate.
Second, as discussed, Wiley fails to allege sufficient facts to demonstrate an
absence of probable cause: an element required for a malicious prosecution claim.
(Jackson v. Lara, supra, 100 Cal.App.5th at p. 343.) Nor does she allege that Whiting’s
report recommending charges was motivated by retaliatory animus, as opposed to
legitimate law-enforcement reasons. As a result, Wiley fails to plead the required
interference, or attempted interference, necessary for a Bane Act claim, which she alleges
was carried out by the malicious/retaliatory prosecution.
Third, Wiley fails to plead facts showing “threats, intimidation, or coercion.” (Civ.
Code, § 52.1, subd. (b).) The “threats, intimidation, or coercion” requirements—the
20.
“egregiousness” element—were intended to prevent the Bane Act from extending to
ordinary tort claims. (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947,
956–957.) Wiley presents no authority that a malicious/retaliatory prosecution
categorically qualifies as “egregious.” In fact, it is a disfavored tort. (Jackson v. Lara,
supra, 100 Cal.App.5th at p. 343.)
Wiley only pleads Whiting compiled an incident report casting her in an
“unfavorable light.” She does not plead Whiting arrested her (she pleads no arrest at all)
without probable cause, submitted false information, omitted material information,
knowingly caused erroneous charges to be filed against her, or influenced prosecutors to
prosecute her without probable cause. She does not plead that Whiting threatened or
intimidated her, either.
Relevant case law counsels us that even the Bane Act violation Wiley thinks she
pled—an intentional, malicious, retaliatory conspiracy to subject her to patently false
criminal charges because she exercised her right to speak freely at the school and in her
subsequent e-mail to the school—does not qualify as “egregious.” Take Cornell v. City
and County of San Francisco (2017) 17 Cal.App.5th 766 (Cornell) for example. The
Cornell court, after considering the facts surrounding the plaintiff’s (police officer
Cornell’s) false arrest, observed that, while he was detained for some length in a
burdensome interrogation by his own police department, fellow officers attempted to hunt
for, or fabricate, evidence to disparage him. (Id. at pp. 794‒795.) Upon Cornell’s
release, “he was cited for a misdemeanor offense.” (Id. at p. 795.)
“That citation was referred to the internal affairs unit of the San Francisco Police
Department, and without further investigation by internal affairs, the citation became the
basis of a misconduct charge, resulting in Cornell’s firing. Officer Brandt, who gave
Cornell the citation, admitted not knowing the factual basis for the Penal Code
section 148 charge, and Sergeant Gin, who approved the citation, admitted he had no
independent knowledge about why it issued. According to Alice Villagomez, the head of
21.
human resources in the San Francisco Police Department, any experienced officer would
have understood the citation would likely result in Cornell’s termination. All of this
evidence supports an inference not only that Officer Brandt and Sergeant Gin arrested
Cornell unlawfully, but that they acted spitefully toward him as well since they knew or
should have known the career-ending [misdemeanor] citation they gave him upon his
release was baseless.” (Cornell, supra, 17 Cal.App.5th at p. 795.)
The SAC contains no similar allegations. Wiley never alleges that Whiting knew
the findings in his report were baseless, submitted false evidence or false charges, or took
any specific act out of retaliatory animus toward Wiley. She never alleges that Whiting
prepared his incident report because she complained to the school. In fact, Komin
apparently took her complaint seriously, instituting an investigation against Whiting. 14
She never alleges a link between Whiting and the prosecutor’s comment about certain
school employees’ anger toward Wiley in response to a question about why the charges
had not been dropped. Nor does she allege that Whiting’s incident report was the “but-
for” or substantial cause of the criminal complaint’s issuance against Wiley.
Though we agree with Wiley’s argument that, contrary to the trial court’s
reasoning, Whiting need not have obtained the information for his investigative report by
“threats, intimidation, or coercion” to qualify under the Bane Act, we reject Wiley’s
characterization that “the retaliatory nature of the prosecution, including its unlawful
purpose, and the loading of several malicious and factually unsupported charges was,
itself, inherently coercive.” 15 As discussed, she failed to plead facts sufficient to support
14 Though Wiley speculates that Komin’s investigation must be a sham because he
approved the purportedly false charges against her, this is a conclusory allegation,
unsupported by specific factual allegations, we must disregard. (Summerfield v. City of
Inglewood, supra, 96 Cal.App.5th at p. 992.)
15 Wiley’s discussion of a split of authority between Shoyoye and Cornell on whether
coercion must be transactionally independent from the underlying rights violation
(Shoyoye v. County of Los Angeles, supra, 203 Cal.App.4th at pp. 957–959) or may be
inherent in the wrongful conduct itself (Cornell, supra, 17 Cal.App.5th at pp. 801–802)
22.
her characterization on appeal. She never adequately alleges specific facts showing that
Whiting’s recommendation of charges was motivated by Wiley’s speech in the verbal
altercation or her complaint to the school.
Fourth, Wiley alleges no facts showing that Whiting’s mischaracterization of her
rises to the level of coercion required by the Bane Act. “Speech alone is not sufficient to
support an action brought pursuant to subdivision (b) or (c), except upon a showing that
the speech itself threatens violence against a specific person or group of persons….”
(Civ. Code, § 52.1, subd. (k).) Though we do not hold that Whiting’s speech needed to
threaten violence against Wiley, the Bane Act’s language counsels us that a mere
unfavorable portrait is likely insufficient. Nevertheless, Wiley does not explain how
Whiting’s uncharitable caricature of her rose to such a level, for she does not explain
what he wrote.
Finally, Wiley’s allegation that Whiting’s malicious intent “is evidenced, not least,
by … the various pointed and unprofessional acts and remarks KHSD employees made
against plaintiffs, and for which they were not similarly charged” is insufficient. Wiley
fails to allege facts showing that other employees’ conduct or remarks may be reasonably
attributed to Whiting. Nor does she identify the substance of the conduct or remarks.
The SAC’s only indication comes from its summary of a June 15, 2021 letter from KHSD
police reporting that one employee did not “flip[] [Wiley] off,” but rather raised her hand
and said, “sorry,” and that another employee told Wiley, “You are a horrible woman,” or,
as Wiley contends, “You are a horrible mother.” Wiley does not explain how the latter
insult would be subject to criminal prosecution, such that officers chose to investigate
Wiley but not the school employee, or why that speaker’s malice should be attributed to
Whiting.
[specifically dealing with unlawful arrests and wrongful detentions]) is irrelevant for our
purposes.
23.
The trial court properly sustained the demurrer as to Wiley’s Bane Act cause of
action for failure to plead facts sufficient to state a claim.
A. Government Code Section 821.6 Immunity
Wiley contends that a recent amendment to the Bane Act removing Government
Code section 821.6 16 immunity for police officers for Bane Act violations applies to this
case. We disagree.
Previously, California courts rejected the position that “Civil Code section 52.1
prevails over the Government Code section 821.6 immunity.” (County of Los Angeles v.
Superior Court (2009) 181 Cal.App.4th 218, 230–231; O’Toole v. Superior Court (2006)
140 Cal.App.4th 488, 504 [“Civil Code section 52.1 contains no indicia reflecting an
intent that public employees may be sued despite a statutory immunity that would
otherwise apply”].)
Effective January 1, 2022, the Legislature amended Civil Code section 52.1 to
expressly remove Government Code section 821.6 immunity as to “any peace officer or
custodial officer” sued for a violation of the Bane Act. (Sen. Bill No. 2 (2021–2022 Reg.
Sess.) ch. 409, § 3.)
Wiley argues this amendment removed Whiting’s Government Code section 821.6
immunity for his conduct in 2021 prior to the amendment. We disagree.
Wiley’s argument erroneously analogizes to familiar principles in statute of
limitations cases. She argues (1) she could not bring any tort claim against Whiting until
after January 3, 2022, when the court dismissed her charges (Gov. Code, § 945.3
[criminal defendant cannot bring civil claims against officers or prosecutors until after the
criminal proceeding ends]), and (2) the elements of her cause of action for malicious
16 Government Code section 821.6 provides that “[a] public employee is not liable
for injury caused by his instituting or prosecuting any judicial or administrative
proceeding within the scope of his employment, even if he acts maliciously and without
probable cause.”
24.
prosecution were not completed until January 3, 2022, when she received a “favorable
termination” of her case. 17 (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 [a cause
of action does not accrue until all its elements obtained].)
For her argument to succeed, Wiley must, but fails to, persuade us that application
of the Bane Act amendment would be retroactive, not prospective. We presume that
statutes are prospective unless the Legislature expressly indicates an intent for retroactive
application. (Civ. Code, § 3; Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th
828, 840–847 (Myers).) However, a qualification exists where an amendment is
procedural. For example, when a procedural amendment impacts a postamendment trial,
even though litigation was pending preamendment, the amendment’s application is in fact
prospective, not retroactive, because, it relates to the procedure to be followed in the
future. (See Brown v. Friesleben Estate Co. (1956) 139 Cal.App.2d 1, 4.)
To avoid the presumption of prospectivity, Wiley contends the amendment is
procedural, not substantive, thus operating prospectively from the date her
postamendment cause of action accrued, not retroactively to impact Whiting’s
preamendment conduct. We disagree.
A statute is not procedural where it creates a new cause of action or “ ‘deprive[s] a
… defendant of any defense on the merits or affect vested rights.’ ” (Tapia v. Superior
Court (1991) 53 Cal.3d 282, 289.) Statutory immunity for public entities or employees is
generally a substantive, rather than procedural, bar to tort liability. (See Quigley v.
Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 809 [Gov. Code, § 850.4,
providing certain immunity from tort liability, “reads as a substantive bar to tort liability,
17 As discussed, we question whether Wiley pled a “favorable termination” given a
dismissal in the interests of justice is not necessarily favorable. (De La Riva v. Owl Drug
Co., supra, 253 Cal.App.2d at pp. 599‒600.) Given this issue was not litigated below,
and no party addresses it on appeal, we do not decide it here.
25.
much like other privileges or immunities provisions that shield particular actors or
activities from otherwise applicable liability for tortious conduct”].)
The removal of an absolute defense to liability is more than a procedural change.
For example, Brown v. Friesleben Estate Co., supra, 139 Cal.App.2d 1, on which Wiley
relies, gives us examples of procedural amendments that are procedural and prospective
in application. The Brown court impliedly determined a procedural change to the amount
of a written undertaking required on appeal, and it relied upon other cases regarding the
change to the time to file an appeal and a required addition of a bill of exceptions to an
appellate record as examples of procedural changes. (Id. at pp. 4–5.) Even if, as Wiley
argues, Government Code section 821.6 immunity is a “statutory privilege,” not a “vested
right,” it is not merely procedural, and Wiley fails to explain why a “statutory privilege”
is procedural, rather than substantive.
Moreover, in an analogous case, our Supreme Court dealt with a repealed statutory
“complete immunity” for tobacco companies “in certain product liability lawsuits”
between January 1, 1988 and January 1, 1998. (Myers, supra, 28 Cal.4th at pp. 831–
832.) The question in Myers concerned whether the amendment repealing that immunity
governed “ ‘a claim that accrued after January 1, 1998, but which is based on conduct
that occurred prior to January 1, 1998.’ ” (Id. at p. 832.) The Myers court held the
immunity under the prior statute applied to all covered conduct “regardless of when the
users of the tobacco products may have sustained or discovered injuries as a result of that
conduct,” i.e., when the users’ claims accrued, but did not apply to conduct falling outside
of the 10-year immunity period. (Ibid.)
Myers determined the plaintiff’s desired application of that amendment’s
amelioration of immunity to be retroactive. Our Supreme Court has long held that a
retroactive or retrospective law “ ‘ “is one which affects rights, obligations, acts,
transactions and conditions which are performed or exist prior to the adoption of the
statute.” ’ ” (Myers, supra, 28 Cal.4th at p. 839; accord, Landgraf v. USI Film Products
26.
(1994) 511 U.S. 244, 269 [“ ‘ “[E]very statute, which … attaches a new disability, in
respect to transactions or considerations already past, must be deemed
retrospective” ’ ”].) In other words, “a statute that operates to ‘increase a party’s liability
for past conduct’ is retroactive.” (Myers, at p. 839.)
Just as in Myers, where “no tortious liability attached to a tobacco company’s
production and distribution of … tobacco products to smokers” in a 10-year period,
rendering liability for causes of action accrued postamendment retroactive in application
(Myers, supra, 28 Cal.4th at p. 840), so too did no tortious liability attach under the Bane
Act to a police officer, such as Whiting, for instituting a criminal proceeding, even for
malicious purposes, prior to January 1, 2022. Wiley’s suggested application of the Bane
Act’s amendment increases Whiting’s “ ‘liability for past conduct,’ ” and is thus
retroactive in application. (Myers, at p. 840.)
As such, Wiley may only overcome the presumption that this amendment was
prospective if she shows (1) an express legislative intent to increase liability for past
conduct or (2) extrinsic evidence of a clear legislative intent to increase liability for past
conduct. (Myers, supra, 28 Cal.4th at pp. 841–847.) Wiley fails to argue either. Our
review discloses neither.
Civil Code section 52.1’s language is not expressly retroactive. Insofar as
subdivision (n) removes immunity as applied to “any cause of action brought against any
peace officer,” which could be construed as applying to a cause of action arising from
past conduct. The Myers court considered similar language in the amendment before
them: that “there exists no statutory bar” to tobacco-related tort claims, those “who have
suffered or incurred injuries” are entitled to bring suit, and that “such claims which were
or are brought shall be determined on the merits, without the imposition of any claim of
statutory bar or categorical defense.” (Myers, supra, 28 Cal.4th at p. 842, italics
omitted.) The Myers court determined that this language was not an “express
declaration[]” of the Legislature’s intent for retroactive application. (Id. at p. 843.) At
27.
best, it was ambiguous. (Ibid.) But “ ‘a statute that is ambiguous with respect to
retroactive application is construed … to be unambiguously prospective.’ ” (Id. at
p. 841.)
Our review of the Legislative history discloses no extrinsic evidence of intended
retroactive impact. To our knowledge, no prior draft bill included any retroactive
language. The Legislature only explained that “[t]he bill would eliminate certain
immunity provisions for peace officers … sued under the act.” (Legis. Counsel’s Dig.,
Sen. Bill No. 2 (2021-2022 Reg. Sess.) 4 Stats. 2021, Summary Dig., p. 6146.) This is
not a clear expression of retroactive intent because it does not expressly include
preenactment conduct.
Finally, Myers’s policy considerations counsel our interpretation of the Bane Act’s
amendment. “ ‘[T]he “principle that the legal effect of conduct should ordinarily be
assessed under the law that existed when the conduct took place has timeless and
universal appeal.” ’ ” (Myers, supra, 28 Cal.4th at pp. 840‒841.) That appeal is evident
in cases where retroactive application yields potentially devastating effects. (Id. at
pp. 846–847.) The possibility of punitive or exemplary damages upon a retroactive
application “ ‘demonstrate[s] that [the statute] shares key characteristics of criminal
sanctions. Retroactive imposition of punitive damages would raise a serious
constitutional question.’ ” (Id. at p. 846.)
The Bane Act imposes liability for actual damages, treble damages, attorney’s
fees, and “exemplary damages.” (Civ. Code, §§ 52, subd. (b), 52.1, subd. (c).)
Retroactive application of the Bane Act to remove the immunity to which Whiting (and
the other defendants) were entitled to rely upon when their purportedly wrongful conduct
occurred raises the constitutional concerns cited above. Officers previously covered by
immunity engaged in a different calculus regarding when to bring charges would then be
subject to increased liability in the form of quasi-criminal sanctions they could not have
previously anticipated. We construe statutes to avoid “ ‘constitutional infirmit[ies].’ ”
28.
(Myers, supra, 28 Cal.4th at p. 846.) This principle “reinforces our construction of the
[Bane Act] as prospective only.” (Id. at p. 847.)
We conclude (1) Wiley failed to allege sufficient facts to plead a cause of action
under the Bane Act, and (2) Whiting (and the other officer defendants) are immune from
liability. The trial court properly sustained defendants’ demurrer to Wiley’s sixth cause of
action, and, to the extent implicated, her twelfth cause of action.
IV. Tenth Cause of Action
Wiley argues the trial court erred in sustaining the demurrer as to her cause of
action for intentional infliction of emotional distress as to Whiting, and, implicitly,
Komin. We disagree.
To adequately plead a claim for intentional infliction of emotional distress, a
plaintiff must allege that (1) the defendant’s conduct was extreme and outrageous, (2) the
defendant intended to cause, or acted with reckless disregard of the probability of
causing, the plaintiff emotional distress, (3) the plaintiff suffered severe emotional
distress, and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s
emotional distress. (CACI No. 1600; Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–
1051.)
To qualify as outrageous, the defendant’s conduct must “ ‘ “go beyond all possible
bounds of decency, and … be regarded as atrocious, and utterly intolerable in a civilized
community.” ’ ” (Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403,
416.)
The trial court “ ‘initially determines whether a defendant’s conduct may
reasonably be regarded as so extreme and outrageous as to permit recovery. Where
reasonable men can differ, the jury determines whether the conduct has been extreme and
outrageous to result in liability. Otherwise stated, the court determines whether severe
emotional distress can be found; the jury determines whether on the evidence it has, in
fact, existed.’ ” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.)
29.
First, respondents demurred to this cause of action on the ground that Komin and
Whiting (as well as Peña and Alvidrez) are immune under Government Code
section 821.6. This immunity extends to claims that, during an investigation, the public
employee “act[ed] out of discriminatory and retaliatory motives.” (Ross v. San Francisco
Bay Area Rapid Transit Dist. (2007) 146 Cal.App.4th 1507, 1516.)
We agree with respondents that the only factual allegations against Whiting and
Komin concern conduct in the course of their official duties. Wiley alleges only that
Whiting investigated the incident and recommended charges, and that Komin approved
the report and recommended charges. Thus, Whiting and Komin are immune from
liability.
In response, Wiley urges us to construe current Civil Code section 52.1,
subdivision (n)’s language that Government Code section 821.6 “shall not apply to any
cause of action brought against any peace officer or custodial officer” (italics added) as
extending beyond a violation of the Bane Act to any cause of action. 18 We need not
decide this issue. As discussed, the amendment to Civil Code section 52.1 is not
retroactive to Whiting and Komin’s conduct in 2021. Therefore, they are immune from
liability, and Wiley’s cause of action for intentional infliction of emotional distress fails.
Even if we reached the substance of Wiley’s allegations as to Komin and Whiting,
nothing rises to the level of egregious conduct necessary to plead her claim.
After Komin initiated an investigation into Whiting’s conduct, he “reviewed
[Whiting]’s investigative report and approved both the investigation and subsequent
18 We doubt the Legislature intended to enact such a broad-sweeping change,
effectively defanging Government Code section 821.6, not in an amendment to that
section but an amendment to an entirely different provision of the Civil Code. We also
observe that the legislative history reveals a narrower intent that this amendment
“eliminate[s] certain immunity provisions for peace officers … sued under the act.”
(Legis. Counsel’s Dig., Sen. Bill No. 2 (2021-2022 Reg. Sess.) 4 Stats. 2021, Summary
Dig., p. 6146), italics added.)
30.
arrests…. That the police chief approved charges against plaintiffs that plainly involve
plaintiffs’ constitutionally protected speech and expressive conduct tends in reason to
suggest that the police chief, himself, is implicated in the forming, piece by piece, of a
retaliatory wave by [KHSD] police and staff.” This is purely speculative. Wiley has pled
insufficient facts to support any inference there was a “retaliatory wave.” Even if
nonofficer school staff made behind-the-back derogatory comments about Wiley, she has
not alleged that Komin and Whiting participated, or knew about, the staff’s animus
toward Wiley, nor that the staff’s conduct rose to the level of deliberately submitting false
information to Whiting or Komin, which they knowingly submitted to prosecutors in
support of false charges.
As to Whiting, as discussed, Wiley fails to plead that Whiting undertook any
specious conduct except casting her in an unfavorable light. She does not explain what
that means, nor why it had any causal relationship to her injury. Merely disparaging
someone, even if inappropriate, is not necessarily egregious, nor can we determine if it
was motivated by malice. Finally, Wiley fails to allege any other misconduct Whiting
may have perpetrated.
In summary, Komin and Whiting are immune from liability under Government
Code section 821.6. Further, Wiley fails to plead sufficient facts that (1) Komin and
Whiting engaged in egregious acts; (2) they intended to harm Wiley, or acted with
reckless disregard of that outcome; and (3) that either’s conduct substantially caused her
harm. The trial court properly sustained the demurrer as to Wiley’s claim for intentional
infliction of emotional distress.
V. Eleventh Cause of Action
Wiley contends the trial court erred in sustaining respondents’ demurrer as to her
eleventh cause of action for negligence against Komin and Whiting.19 We disagree.
19 We note the trial court also sustained the demurrer to this cause of action as to
Alvidrez and Peña without leave to amend. However, Wiley does not challenge this on
31.
First, we agree with defendants that Whiting and Komin are immunized from
liability because their conduct was within the scope of their, as defendants phrase it,
“bringing or prosecuting an official proceeding.” (See Gov. Code, § 821.6 [immunity for
“instituting or prosecuting any judicial or administrative proceeding within the scope of
… employment,” even if malicious and lacking probable cause].) Though respondents
raised this in their demurrer below, and the court sustained the demurrer on this ground,
Wiley fails to address it on appeal, forfeiting the issue. (Dameron Hospital, supra,
77 Cal.App.5th at p. 982.) Wiley’s claim fails for this reason alone.
Even reaching the merits, Wiley’s allegations fail to adequately plead negligence.
To so plead, a plaintiff must show (1) a legal duty requiring due care; (2) a breach of that
duty; and (3) the breach proximately or in fact caused the resulting injury. (Ladd v.
County of San Mateo (1996) 12 Cal.4th 913, 917.)
But Wiley fails to adequately plead that (1) Whiting breached a duty to Wiley;
(2) his breach was the proximate or but-for cause of her injury; and (3) Komin breached a
duty to Wiley.
First, Wiley alleges that Whiting “conspire[d] with other KHSD employees to
interfere with the rights of plaintiffs to be free from unlawful retaliation based on
speech.” To establish a conspiracy to violate Wiley’s rights, she must plead “(1) [the]
formation and operation of the conspiracy; (2) wrongful conduct in furtherance of the
conspiracy; and (3) damages arising from the wrongful conduct.” (Spencer v. Mowat,
supra, 46 Cal.App.5th at p. 1037.) She fails to sufficiently plead facts raising a triable
issue that there was such a conspiracy.
Wiley never alleges that Whiting conspired with anyone, only that he prepared a
lengthy incident report. She does not allege that he knowingly agreed to utilize another
appeal, forfeiting this issue as to Alvidrez and Peña. (Dameron Hospital, supra,
77 Cal.App.5th at p. 982.)
32.
employee’s false testimony to influence the prosecution to file a criminal complaint
against Wiley. In fact, she does not allege that Whiting included any false testimony in
the incident report whatsoever nor that he agreed to manipulate the investigation in some
fashion to retaliate against Wiley.
Wiley also fails to plead wrongful conduct furthering the conspiracy. Given Wiley
only alleges that Whiting prepared the incident report, casting her in an “unfavorable
light,” we cannot determine whether Whiting’s conduct was in fact wrongful, as already
discussed. Even if it was wrongful, again, Wiley alleges nothing tying Whiting’s conduct
to a conspiracy.
Further, disregarding the conspiracy allegation and interpreting Wiley’s claim as
based on Whiting’s direct negligent preparation of the incident report, Wiley does not
allege any negligence by Whiting that was the proximate or “but-for” cause of the
prosecution’s decision to charge Wiley. She does not even allege Whiting’s report
contained false information, or omitted exculpatory information, that Whiting should
have known about and included.
Regarding Komin, Wiley fails to adequately plead any breach of a duty or causal
connection to her harm. Though she raises a conclusory allegation that Komin had a duty
to hire, train, supervise, and discipline Whiting, she does not allege specific facts to the
effect that Komin breached any of these duties. She suggests in her request for leave to
amend that Komin, as chief of a “small department,” had a duty to intervene in, and stop,
Whiting’s investigation.
Though Komin, in response to Wiley’s complaint to the school, initiated an
investigation into Whiting’s conduct, she merely speculates this investigation is suspect
given Komin approved Whiting’s incident report and the recommended charges. But we
do not know, nor is there a reasonable inference from Wiley’s allegations, that there was
anything improper in the incident report. As discussed, we cannot determine the gravity
of Whiting’s purported uncharitable characterization of Wiley, whether the incident report
33.
lacked probable cause, or whether Whiting engaged in any misconduct, e.g., conspiring
with witnesses, knowingly or negligently citing false evidence or omitting exculpatory
evidence, that Komin reasonably should have known about and prevented. We cannot
determine if Komin’s conduct, as alleged, breached any duty, or that any purported
breach proximately or in fact caused Wiley’s harm.
The trial court correctly sustained the demurrer as to Wiley’s eleventh cause of
action for negligence.
VI. Leave to Amend
Wiley requests leave to amend her SAC on appeal. She does not carry her burden
to explain how the complaint could be amended to survive. However, we grant her leave
to amend her section 1983 claim but not any other cause of action.
“When a demurrer 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.’ [Citation.] Plaintiff has the burden to show a reasonable
possibility the complaint can be amended to state a cause of action.” (Hamilton v.
Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1609.) “The appellant
has the burden to identify specific facts showing the complaint can be amended to state a
viable cause of action. [Citation.] An appellant can meet this burden by identifying
new facts or theories on appeal.” (Minnick v. Automotive Creations, Inc. (2017)
13 Cal.App.5th 1000, 1004; Code Civ. Proc., § 472c, subd. (a).)
First, we are unpersuaded by Wiley’s claim that she had no opportunity to request
leave to amend at the hearing on the demurrer because the trial court asked no questions
of her counsel. The trial court asked for argument from Wiley’s counsel, but he
submitted on the papers. Counsel should know that it was his duty to request amendment
in court, even if unprompted by the trial judge. It is not the trial court’s duty to anticipate
all issues a party wishes to, or must, raise.
34.
Further, Wiley’s request for leave to amend in her opposition to the demurrer was
insufficient. She never identified any new facts or theories she could allege to cure the
deficiencies in the SAC’s allegations. The trial court was not required to undergo this
analysis on her behalf, yet it granted leave to amend as to some causes of action with
respect to certain defendants, nevertheless. For this reason, we do not agree that the court
abused its discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [denial of leave to
amend is reviewed for abuse of discretion].)
Second, on appeal, as respondents observe, Wiley does not carry her burden to
show how the SAC could be amended to state a viable cause of action. Wiley merely
requests leave to amend after listing various deficiencies in the SAC this court might
find. She does not explain any new facts or theories she could allege that would cure any
issues. Though she does suggest, in her reply brief, that she could plead her causes of
action for intentional infliction of emotional distress and negligence “as subsets of her
Bane Act claim,” this would not ameliorate the fatal fact that Whiting and Komin are
immune because the Bane Act’s amendment does not retroactively apply to them. Nor
does Wiley, in her 30-page discussion in her reply brief, explain any other way in which
she could amend the SAC to cure its deficiencies.
We agree with Wiley, however, that, based on the procedural history, this was the
first time that Wiley’s factual allegations and legal theories were tested. Though not
technically the original complaint, Wiley’s allegations and theories as to respondents
were untested prior to the SAC. Generally, for an original complaint, courts should grant
leave to amend unless the complaint shows an incapability of amendment on its face.
(Tarrar Enterprises, Inc. v. Associated Indemnity Corp. (2022) 83 Cal.App.5th 685, 688–
689.) Fairness dictates we treat the SAC as Wiley’s original complaint.
Given Wiley’s sixth, tenth, eleventh, and twelfth causes of action, as discussed, are
barred by Government Code section 821.6’s statutory immunity, we see no plausible
35.
amendment that would permit these causes of action to survive. We deny Wiley’s request
for leave to amend as to these causes of action.
However, unlike Government Code section 821.6, a categorical bar to tort liability,
the federal standard for qualified immunity applies only if an officer has not violated a
federal statutory or constitutional right. (District of Columbia v. Wesby, supra, 583 U.S.
at pp. 62–63.) Thus, if Wiley were to plead sufficient facts to support a claim for
malicious/retaliatory prosecution under section 1983 in violation of her First Amendment
rights, she could plausibly overcome the presumption of qualified immunity. Given the
SAC does not plainly demonstrate an incapability of amending the first cause of action,
we grant Wiley leave to amend the SAC’s first cause of action for a violation of
section 1983.
VII. Motion to Strike
Wiley argues that, because the trial court erroneously sustained the demurrer to
Wiley’s causes of action, the court erroneously granted defendant’s motion to strike her
punitive damages claims. 20 We disagree.
Even if the trial court overruled the entirety of defendants’ demurrer, the court
could have granted defendants’ motion to strike the punitive damages claims. Wiley does
not explain with any cogent legal argument how our reversal of the court’s decision on
the demurrer would impact its ruling on the motion to strike, or why the court erred in its
ruling. (County of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861 [treating as
forfeited any “point that is not supported by cogent legal argument”].) Wiley leaves it to
20 Though we conclude Wiley forfeits any appeal as to the motion to strike given she
fails to provide any cogent legal argument that the trial court erred, we observe that
various portions of the motion to strike were granted with leave to amend. “Generally, an
order granting a motion to strike with leave to amend is not appealable prior to entry of
judgment.” (Estate of Sanchez (2023) 95 Cal.App.5th 331, 338, fn. 9.) To the extent
Wiley appeals those portions of the motion to strike granted with leave to amend, we do
not consider them. Regardless, Wiley affords us no argument as to rulings without leave
to amend.
36.
us to determine the demurrer’s impact on the motion to strike, and whether the court
erred in granting the motion to strike, but we do not make arguments for the parties.
(Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Forfeiting any contest to
the court’s ruling on the motion to strike, we affirm the court’s rulings it made without
leave to amend.
DISPOSITION
We reverse the judgment as to plaintiff’s first cause of action under 42 U.S.C.
section 1983 in the second amended complaint with leave to amend.
We affirm the judgment in part as to plaintiff’s first, sixth, tenth, eleventh, and
twelfth causes of action in the second amended complaint.
We affirm the order granting defendants’ motion to strike without leave to amend.
Because defendants secured most of the relief sought, defendants are entitled to
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)
DE SANTOS, J.
WE CONCUR:
PEÑA, Acting P. J.
MEEHAN, J.
37.
Filed 12/20/24
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
LORI ANN WILEY,
F086953
Plaintiff and Appellant,
(Super. Ct. No. BCV-22-101350)
v.
ORDER GRANTING REQUEST FOR
KERN HIGH SCHOOL DISTRICT et al., PARTIAL PUBLICATION
Defendants and Respondents.
We have reviewed the requests for publication filed by Herum Crabtree Suntag,
LLP and respondents Komin and Whiting, as well as the opposition to these requests
filed by appellant.
Given part III. of the Discussion in the nonpublished opinion filed in the above-
entitled matter on November 26, 2024, meets the publication standards specified in
California Rules of Court, rule 8.1105(c), we grant Herum Crabtree Suntag, LLP’s
request for partial publication.
We decline respondents Komin and Whiting’s request to publish part II. of the
Discussion given it does not meet the requirements for publication under California Rules
of Court, rule 8.1105(c). Part II. of the Discussion does not establish a new rule of law,
advance a new interpretation, clarification, criticism, or construction of a constitutional
provision, statute, ordinance, or court rule, significantly contribute to legal literature, or
meet any other criteria set forth in California Rules of Court, rule 8.1105(c).
IT IS ORDERED that the opinion be certified for partial publication in the Official
Reports with the exception of parts II., IV., V., VI., and VII. of the Discussion.
Further, in compliance with California Rules of Court, rule 8.1120(b), the
Clerk/Executive Officer of this court shall transmit copies of respondents Komin and
Whiting’s request for publication, the opinion, and this order to the Supreme Court.
DE SANTOS, J.
WE CONCUR:
PEÑA, Acting P. J.
MEEHAN, J.
2.