# Turner v. Smith CA1/2

> California Court of Appeal · April 26, 2023

URL: https://www.frixlaw.com/law-library/cases/9390110

## Case

- **Court:** California Court of Appeal
- **Decided:** April 26, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 4/26/23 Turner v. Smith CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

STEPHEN TURNER,
Plaintiff and Appellant,
A164194
v.
MELODY SMITH et al., (Alameda County
Super. Ct. No. RG11574935)
Defendants and Respondents.

Stephen Turner sued four employees of the Division of Adult Parole
Operations of the California Department of Corrections and Rehabilitation,
alleging that they imposed and enforced conditions of parole that were
improperly based on convictions for lewd and dissolute conduct that had been
dismissed. Turner also alleged that defendants violated the Tom Bane Civil
Rights Act (Bane Act, Civ. Code, § 52.1) by threatening him in an attempt to
interfere with his right to sue them and by retaliating against him for
reporting the threat.
The trial court granted defendants’ motion for summary judgment on
the ground that Turner’s claims were barred by section 845.8, subdivision (a),
of the Government Code, which provides that a public employee is not liable
for any injury resulting from the determination of the terms and conditions of
parole, or for determining whether to revoke parole. Turner now appeals.

1
We conclude that there is a triable issue of fact as to Turner’s Bane Act
claim that one of the defendants threatened him that “bad things are going to
happen to you” if Turner did not dismiss lawsuits he had filed. Although
there are no triable issues of fact as to any of Turner’s other causes of action,
we reverse the grant of summary judgment because defendants did not move
in the alternative for summary adjudication. (See People ex rel. Government
Employees Ins. Co. v. Cruz (2016) 244 Cal.App.4th 1184, 1197 [when trial
court granted summary judgment, but factual dispute exists that “affects
fewer than all causes of action, the appellate court may direct the trial court
to enter an order granting summary adjudication of the unaffected causes of
action if the moving party alternatively moved for summary adjudication”
(italics added)].)
FACTUAL AND PROCEDURAL BACKGROUND
A. Undisputed Facts
In 1984, Turner was convicted of three misdemeanor counts of
lewd/dissolute conduct, based on allegations that he exposed himself and
masturbated in the presence of two girls ages 11 and 12. Those convictions
were eventually dismissed in the interest of justice under Penal Code section
1385.
In 1993, Turner was convicted on one count of misdemeanor indecent
exposure under Penal Code section 314.1. In 1996, the 1993 conviction was
expunged in the interest of justice under Penal Code section 1203.4, which
provides for the dismissal of the accusations or information against a
defendant upon the successful completion of probation.
Turner was a practicing physician at the time of the events underlying
the 1984 and 1993 convictions, and was suspended from the practice of
medicine as a result of his acts. The Medical Board imposed various terms

2
and conditions for the reinstatement of his medical license, but Turner chose
to surrender his license rather than comply.
In 2006, Turner pleaded guilty to grand theft, practicing medicine
without a license, mishandling blood samples, and presenting false records,
and was sentenced to seven years and eight months in prison.
Turner was released on parole on January 5, 2010, and remained under
parole supervision until January 5, 2014. From his release in 2010 until
September 2012, Turner was under the supervision of Agent Melody Smith.
Smith’s immediate supervisor was Agent Gregory Sims, and Agent John Bent
supervised both Sims and Smith. Smith, Bent, and Sims are the defendants
and respondents in this matter, along with Agent Brett Everidge, who
participated in an April 2011 parole compliance check of Turner’s motel room.
Upon his entry to parole, Turner was designated a “High Risk Sex
Offender” and a “High Control” parolee. He was subject to general
conditions, which apply to all parolees, as well as special conditions that are
imposed by the Board of Parole Hearings (Parole Board) or by an individual’s
parole agent. Special conditions imposed by an agent are reviewed and
approved by a supervisor. Turner was arrested eight times for parole
violations, all during the period he was supervised by Smith. Each of the
reports submitted by Smith of Turner’s violations and arrests was reviewed
and approved by either Bent or Sims. For purposes of this appeal, we need
summarize only some of the arrests.
The general conditions of Turner’s parole required him to report to his
parole agent upon his release from prison; obey his agent’s instructions; not
travel more than 50 miles from his residence or be absent from his county of
residence for more than 48 hours without his agent’s prior approval; not leave
California without his agent’s prior written approval; obey all federal, state,

3
and local laws; and not own, use, or access weapons. Turner was required to
register as a sex offender based on his 1993 conviction. Among the initial
special conditions of Turner’s parole based on the 1993 conviction were that
he submit to electronic monitoring, not view pornography, not access the
internet except for work purposes, and not live within 2,000 feet of any public
or private school or park where children regularly gather. In light of his
conviction for the unauthorized practice of medicine, he was prohibited from
possessing medical supplies or equipment. From time to time, the conditions
of Turner’s parole were amended, and we discuss some of those amendments
below.
At some point Turner informed Smith that he was searching for a prior
girlfriend who had been a prostitute and was currently working in San
Francisco as a massage therapist; that he wanted to marry the woman; and
that she had custody of a minor daughter.1 Based on what Smith
characterized as Turner’s “focused excitement” about spending time with the
prior girlfriend’s daughter, Smith reviewed Turner’s case file and learned
that the victims of the offenses leading to the 1984 convictions were the same
age as the daughter. On February 24, 2010, Smith further amended Turner’s
special conditions of parole based on Smith’s discovery of his 1984 offenses.
As a result of the amendments, Turner was prohibited from contacting
minors without prior approval and from dating, socializing, or forming a
romantic relationship with any person with physical custody of a minor,
without prior approval.
Agents Bent and Sims approved the amended parole conditions.

1For her privacy and the privacy of her minor daughter, we refer to the
woman as the “prior girlfriend,” which is apparently how Turner first
described her to Smith.

4
On April 6, 2010, Turner was arrested for violating conditions of his
parole, including contacting the prior girlfriend without prior approval and
accessing websites for escort services. At a hearing the Parole Board revoked
Turner’s parole and returned him to custody based on his contacts with the
prior girlfriend and on his accessing sexually-oriented material on the
internet. The Parole Board reaffirmed Turner’s special conditions of parole.
Upon his release from prison in August 2010, Smith further amended
Turner’s special parole conditions to require that he have permission before
contacting the prior girlfriend or accessing the internet. The amended
conditions were approved by Sims.
In April 2011 Everidge and another agent conducted a compliance
check at Turner’s motel room. Smith reported to the motel room after
Everidge notified her that he had discovered a pornographic video saved to
the downloaded files on Turner’s laptop. Turner was arrested for viewing
pornography in violation of his special conditions of parole. Turner
threatened suicide when he was taken into custody; he was transferred to a
psychiatric hospital and cleared for incarceration a few days later. At a
hearing, the Parole Board found good cause for the charge that Turner had
possessed or viewed pornography in violation of the special conditions of his
parole, and ordered him back into custody.
By mid-August 2011, Turner had filed a complaint in this action in
Alameda County Superior Court challenging his special conditions of parole.
On December 12, 2011, Turner was arrested by the Alameda County
Sheriff’s Department based on Smith’s report that on December 7 she was
informed by another parolee assigned to her that during a sex-offender group
session, Turner yelled to the group and counselor, “They can fuck with
anyone else, but they ain’t fucking with me! I’m too old to be told what to do.

5
What’s her name? Melody Smith? By the time I get done with her, she won’t
be singing any more melodies!” Turner was taken to a psychiatric hospital
after threatening suicide, and was cleared for incarceration a few days later.
Turner was charged with violating his parole by making a terrorist threat
and resisting arrest. At a hearing on January 4, 2012, the Parole Board
found good cause for the charge of resisting arrest, but dismissed the threat
charge on the grounds that the threat was not specific and immediate.
In April 2012, Turner was arrested for leaving Alameda County
without prior approval, failing to turn over his cell phone for search, and
contacting the prior girlfriend without prior approval. At a hearing on May
25, 2012, the Parole Board found good cause for the charges except for the
charge that Turner failed to turn over his cell phone, which was dismissed for
insufficient evidence. The Board returned Turner to custody and reaffirmed
his special conditions of parole.
In July 2012, Turner was arrested for failing to register as a sex
offender under Penal Code section 290. Turner threatened suicide, was taken
to a psychiatric hospital, and was cleared for incarceration a few days later.
Based on a report that after his arrest he said he should “take [Smith] out
and go to the parole office and take everybody else out,” Turner was also
charged with criminal threats. At a hearing in September 2012, the Parole
Board found probable cause for failure to register and dismissed the threats
charge. The Board reaffirmed Turner’s conditions of probation.
C. Proceedings Leading to Summary Judgment
This action was commenced in 2011. Also in 2011, Turner sued these
same defendants in federal district court, alleging they conducted unlawful
searches and seizures, violated the knock-and-announce rule, and retaliated
against him by conducting parole compliance checks, arresting him for parole

6
violations, and revoking his parole. Turner also alleged that parole
conditions barring him from associating with his prior girlfriend or traveling
outside the country without prior permission were unconstitutional. (Turner
v. Smith (N.D. Cal. Mar. 7, 2017) 2017 WL 897333 at *1 (Turner I), affd. (9th
Cir. 2018) 734 Fed. App’x 460 (Turner II), cert. den. (2018) 139 S.Ct. 339.)
The district court (Honorable Charles R. Breyer) granted defendants’ motion
for summary judgment as to Turner’s federal law claims, and concluded that
it lacked supplemental jurisdiction over his state law claims because none of
his federal claims survived summary judgment. (Turner I at *6.)
In August 2020, Turner filed the operative Fifth Amended Complaint
in this action, alleging several causes of action against Smith, Sims, Bent,
and Everidge, including negligence, intentional infliction of emotional
distress, and injury to his personal relations in violation of Civil Code section
43, all based on defendants’ imposition and enforcement of conditions of his
parole.2 As to Bent alone he alleged a cause of action for negligent hiring and
supervision of Smith and Sims.
In addition, Turner alleged two causes of action for violation of the
Bane Act (Civ. Code, § 52.1), which authorizes a civil action against anyone
who “interferes by threat, intimidation, or coercion, or attempts to interfere
by threat, intimidation, or coercion, with the exercise of enjoyment by any
individual or individuals of rights secured by the Constitution or laws of the
United States, or of the rights secured by the Constitution or laws of this
state.” (Civ. Code, § 52.1, subds. (b) & (c).) One of the Bane Act causes of
action rests on allegations that on December 7, 2011, Sims threatened Turner

2 Turner’s claims against Everidge are based on allegations that he
failed to comply with the “knock-notice” requirement before executing the
April 2011 parole compliance check.

7
by stating, “bad things are going to happen to you” unless Turner
immediately dismissed his suits against the defendants. The other Bane Act
cause of action alleges that Turner was falsely arrested on December 12,
2011, after Smith, Sims, Bent, or some combination of the three ordered his
arrest in retaliation for reporting the threat that Sims made against him and
for refusing to dismiss his lawsuits.
Turner alleged that as a result of defendants’ actions he suffered
emotional and mental distress and a deprivation of his civil and statutory
rights. Turner sought compensatory and punitive damages, statutory
damages and civil penalties under the Bane Act, interest, attorney fees, and
costs of suit.
Defendants moved for summary judgment on several theories,
including claims of immunity under various sections of the Government Code.
The trial court granted the motion based on its conclusion that Turner’s
claims were barred by Government Code section 845.8, subdivision (a).
Judgment was entered for defendants, and Turner timely appealed.
DISCUSSION
A. Standard of Review
Summary judgment “shall be granted if all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c).) “We review a grant of summary judgment de novo; we must decide
independently whether the facts not subject to triable dispute warrant
judgment for the moving party as a matter of law.” (Intel Corp. v. Hamidi
(2003) 30 Cal.4th 1342, 1348.)
We view the evidence in the light most favorable to the nonmoving
party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) In

8
deciding whether a material factual issue exists for trial, we “consider all of
the evidence set forth in the papers, except the evidence to which objections
have been made and sustained by the court, and all inferences reasonably
deducible from the evidence.” (Code Civ. Proc. § 437c, subd. (c).)
A defendant moving for summary judgment “bears the burden of
persuasion that there is no triable issue of material fact and that [the
defendant] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant can meet this burden
by showing “that there is a complete defense to [a] cause of action.” (Code
Civ. Proc., § 437c, subd. (p)(2).) A defendant’s initial burden in moving for
summary judgment is to come forward with evidence to make a prima facie
showing that there is no triable issue of material fact (Aguilar, supra, 25
Cal.4th at p. 850), where the material facts are determined by the pleadings.
(Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114
Cal.App.4th 309, 320.) If defendant meets that burden of production, the
burden of production shifts to plaintiff to make a showing that there is a
triable issue of material fact. (Ibid.) “The plaintiff . . . shall not rely upon
the allegations or denials of its pleadings to show that a triable issue of
material fact exists but, instead, shall set forth the specific facts showing that
a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subd. (p)(2).)
B. Statutory Immunity
Under section 845.8 of the Government Code, “Neither a public entity
nor a public employee is liable for: [¶] (a) Any injury resulting from
determining whether to parole or release a prisoner or from determining the
terms and conditions of his parole or release or from determining whether to
revoke his parole or release.” Government Code section 820.2 provides:
“Except as otherwise provided by statute, a public employee is not liable for

9
an injury resulting from his act or omission where the act or omission was
the result of the exercise of discretion vested in him, whether or not such
discretion be abused.” Further, 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.” Turner
recognizes that these statutes and the case law interpreting them stand for
the proposition that decisions to implement special conditions of parole or to
revoke parole are generally immunized. In addition, immunity applies to the
supervision of a parolee to ensure compliance with parole conditions. (See
Brenneman v. State of California (1989) 208 Cal.App.3d 812, 820-821 [Gov.
Code § 845.8, subd. (a), “bars any state liability for negligent supervision of a
released prisoner”]; Kim v. Walker (1989) 208 Cal.App.3d 375, 382 [parole
officer is “immune for the supervision of appellant and revocation of his
parole”], rejected on other grounds in State of California v. Superior Court
(2004) 32 Cal.4th 1234, 1239, fn. 7.)
Turner’s primary argument on appeal is that his causes of action for
negligence, negligent hiring and supervision, intentional infliction of
emotional distress, and violation of Civil Code section 43, all of which arise
from the imposition and enforcement of conditions of parole that were based
on his 1984 convictions, fall outside the scope of the immunity provided by
the Government Code sections discussed above. He contends that his 1984
convictions could legally not be the basis of parole conditions because the
convictions had been dismissed in 1984 under Penal Code section 1385,3 and

3At that time, Penal Code section 1385 provided, “The judge or
magistrate may, either of its own motion or upon the application of the
prosecuting attorney, and in furtherance of justice, order an action to be
dismissed. The reasons for the dismissal must be set forth in an order

10
that he had repeatedly informed Smith, Sims, and Bent about the dismissal.
He relies on Perez-Torres v. State of California (2007) 42 Cal.4th 136 (Perez-
Torres) to argue that once the defendants learned that the convictions had
been dismissed under Penal Code section 1385, the continued imposition and
enforcement of the conditions imposed on account of those conditions fell
outside the scope of statutory immunity. Therefore, he concludes, his causes
of action for negligence, negligent hiring and supervision, intentional
infliction of emotional distress and violation of Civil Code section 43 are not
barred by Government Code immunities.
Turner’s argument concerning immunity rests on the false premise that
the 1984 convictions could not legally be the basis of parole conditions
imposed upon him. To support his view that conditions based on the 1984
convictions were improper, Turner relies on People v. Barro (2001) 93
Cal.App.4th 62, which holds that a dismissal under Penal Code section 1385
“operates, as a matter of law, to erase the prior conviction as if the defendant
had never suffered the conviction in the initial instance.” (Id. at p. 66.) In
Barro, the defendant’s prior conviction for mayhem, which had been
dismissed under Penal Code section 1385, could not qualify as a strike under
the Three Strikes law. (Id. at p. 64.) Nothing in Barro, however, prevents
the facts underlying the 1984 convictions from being used as the basis of
conditions of parole. As noted in People v. Superior Court (Flores) (1989) 214
Cal.App.3d 127, a case on which the Court of Appeal relied in Barro, a
dismissal under Penal Code section 1385 “is not an adjudication the charged
crime was not committed. Rather, the dismissal operates to free the criminal

entered upon the minutes. No dismissal shall be made for any cause which
would be ground of demurrer to the accusatory pleading.” (Stats. 1980, ch.
938, § 7, p. 2968.)

11
defendant from further prosecution and punishment for that crime. The
defendant stands as if he had never been prosecuted for the charged offense.”
(Flores, supra, at p. 136.)
More generally, there is no requirement that conditions of parole be
based on conduct that led to a criminal conviction. The law is to the contrary:
a parole condition barring lawful activity that is not related to the parolee’s
commitment offense will be upheld if it is reasonably related to the
deterrence of future criminality. (In re Hudson (2006) 143 Cal.App.4th 1, 9-
10, citing People v. Lent (1975) 15 Cal.3d 481, 486, & In re Stevens (2004) 119
Cal.App.4th 1228, 1234.) Turner does not contend that the conditions of his
parole are invalid under the Lent standard, nor could he in light of the facts
underlying the 1984 convictions. Turner does not dispute that he admitted to
those facts in a parole clinical evaluation conducted on March 1, 2010, where
he described the events underlying the convictions, saying that he had long
been “plagued with Exhibitionism” and that he saw two girls ages 12 and 14
who seemed attractive to him and exposed his penis to them, and stated that
he had lost his California Medical License as a result of the 1984 convictions.
Accordingly, Turner does not persuade us that Perez-Torres, which
limits the availability of immunity when parole agents learn they have acted
on the basis of a mistake, has any application to his case. The plaintiff in
Perez-Torres was not a parolee, but state parole agents arrested and jailed
him based on their mistaken belief that he had violated his parole, and he
remained in jail for almost a month. (Perez-Torres, supra, 42 Cal.4th at pp.
138, 139-140.) He eventually sued the agents for negligence, false
imprisonment, and violation of the Bane Act. (Id. at p. 140.) Our Supreme
Court held that Government Code section 845.8, subdivision (a) immunized
the defendants for their actions in arresting and jailing him based on their

12
belief that he was a parole violator. (Id. at pp. 141-142.) But the immunity
did not extend to Perez-Torres’s “continued incarceration after defendants
knew or should have known he was the wrong man.” (Id. at p. 142.) Once
that point was reached, the agents’ conduct in keeping Perez-Torres in jail
went beyond the implementation of a policy decision that would be subject to
immunity under Government Code section 845.8, subdivision (a): the agents
had a ministerial duty to release him, and their failure to do so was an action
subject to legal redress. (Id. at p. 145.) Turner has not demonstrated that
the defendants here had any duty to rescind or decline to enforce conditions
of parole based on the facts underlying the 1984 convictions, even after they
learned that the convictions had been dismissed under Penal Code section
1385.
In sum, Turner’s claims for negligence, negligent hiring and
supervision, intentional infliction of emotional distress, and violation of Civil
Code section 43 are barred by Government Code section 845.8, and therefore
we do not reach his alternative arguments regarding those claims, which
assume that immunity does not apply.
C. Statutory Immunity and Turner’s Bane Act Claims
“The essence of a Bane Act claim is that the defendant, by the specified
improper means (i.e., ‘threats, intimidation or coercion’), tried to or did
prevent the plaintiff from doing something he or she had the right to do
under the law or to force the plaintiff to do something that he or she was not
required to do under the law.” (Austin B. v. Escondido Union School Dist.
(2007) 149 Cal.App.4th 860, 883.)
Turner argues that these immunities provided by Government Code
sections 820.2, 821.6, and 845.8, subdivision (a), do not apply to his Bane Act
causes of action, which rest on allegations that Sims threatened him that

13
“bad things” would happen to him unless he dismissed his lawsuits, and
Smith or Sims or Bent had him falsely arrested in retaliation for exercising
his rights by reporting Sims’s threat and refusing to dismiss his lawsuits.
And he points out that effective January 1, 2022, the Bane Act was amended
to provide that immunity under Government Code section 821.6 does not
apply to Bane Act claims. (Civ. Code, § 52.1, subd. (n); Stats. 2021, ch. 409
§ 3.)
Defendants contend that the Bane Act causes of action, like the others,
arise from defendants’ imposition and enforcement of his parole conditions
and are therefore barred by Government Code immunities.
Although the actions taken in connection with Turner’s arrest in
December 2011 could be characterized as determining whether to revoke his
parole and would therefore be subject to immunity,4 defendants do not
explain how Sims’s alleged threat arises from the imposition and enforcement
of Turner’s parole conditions or the revocation of his parole. 5
D. Issue Preclusion and Turner’s Bane Act Claims
In the alternative, defendants argue that the Bane Act claims are
barred by issue preclusion, based on findings made by the district court in
Turner’s federal court action against the defendants. We find the alternative
argument persuasive with respect to Turner’s cause of action based on the

Defendants came forward with evidence that a parolee informed
4

Smith of a threat made by Turner, and that the report led to Turner’s
December 2011 arrest. Turner denies that he threatened Smith or anyone
else, but does not dispute that Smith received the report.
Defendants cite Perez-Torres, supra, to support their contention that
5

Government Code section 845.8, subdivision (a), applies to Bane Act causes of
action, but the facts of that case are entirely unlike the facts here, and
defendants offer no discussion or analysis to show how the case is relevant to
Turner’s cause of action based on Sims’s alleged threat.

14
allegedly retaliatory December 2011 arrest, but not with respect to the cause
of action based on the alleged threat from Sims.
The doctrine of issue preclusion or collateral estoppel bars the
“ ‘relitigation of issues argued and decided in prior proceedings.’ ”
(Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511 (Hernandez).) In
addition to requiring identity of issues between the two proceedings, issue
preclusion requires that the issue was litigated and “ ‘necessarily decided’ ” in
the prior proceeding; that there was a final decision on the merits in the prior
action; and that the party against whom issue preclusion is asserted was a
party to the prior proceeding. (Ibid.) “The ‘identical issue’ requirement
addresses whether ‘identical factual allegations’ are at stake in the two
proceedings.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342.) The
“ ‘necessarily decided’ ” requirement means that resolution of the issue must
“not have been ‘entirely unnecessary’ to the judgment” in the prior
proceeding. (Ibid.)
Turner argues that defendants have waived any arguments of issue
preclusion. The arguments lack merit. First, Turner argues that defendants
waived the arguments by stipulating that the dismissal of Turner’s state
claims in federal court was without prejudice and did not bar his litigation of
the claims in state court. It is well-established that the fact that Turner’s
state law claims were preserved for state court litigation means that
defendants cannot prevail on an argument that the claims are barred in state
court by the doctrine of claim preclusion. (United Bank Trust Co. of
California v. Hunt (1934) 1 Cal.2d 340, 345.) But Turner cites no authority to
support his contention that defendants cannot prevail by virtue of the
doctrine of issue preclusion, and there are cases to the contrary. (See, e.g.,
Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1232 (Lumpkin) [“[w]here

15
dispositive factual issues are actually litigated and resolved in [a] federal
action, the losing party is estopped to relitigate those issues in a subsequent
state action” that involves claims over which the federal court declined to
exercise jurisdiction].)
Turner also argues that defendants waived their issue preclusion
arguments by failing to raise them in their motion for summary judgment in
the trial court.6 It is true that as a general matter, points not raised in the
trial court will not be considered on appeal. (Newton v. Clemons (2003) 110
Cal.App.4th 1, 11.) But we may consider a newly-raised issue if it involves a
purely legal question that rests on an uncontroverted record that could not
have been altered by the presentation of additional evidence, so long as the
opposing party has notice and an opportunity to respond to that ground. (Noe
v. Superior Court (2015) 237 Cal.App.4th 316, 335-336, citing cases and Code.
Civ. Proc., § 437c, subd. (m)(2).) Turner has had both.
We move now to the merits, addressing first Turner’s claim of
retaliatory arrest. The factual allegations concerning the arrest are among
the allegations on which Turner based his federal claims that defendants
retaliated against him for exercising his First Amendment Rights. (See
Turner I, supra, 2017 WL 897333 at *3 [describing Turner’s allegations of
retaliation].) It is apparent that in the federal case, as here, Turner alleged
that he was arrested without probable cause in retaliation for reporting a

6 Defendants raised the issue preclusion argument for the first time on
appeal in their respondents’ brief. In his reply brief, Turner’s only response
to that argument was that his Bane Act claims are not barred by the doctrine
of claim preclusion. Pursuant to Code of Civil Procedure section 437c,
subdivision (m)(2), we requested and received supplemental briefing from the
parties on whether Turner’s Bane Act causes of action are barred by the
doctrine of issue preclusion.

16
threat made by a parole agent. (Turner I, supra, 2017 WL 897333 at *3, *4 &
fn. 9.)
The federal district court granted defendants’ motion for summary
judgment on Turner’s federal claims based in part on its finding that no
reasonable juror could find from the undisputed facts that Turner was
arrested in retaliation for his protected activity. (Turner I, supra, 2017 WL
897333 at *6.) The Ninth Circuit Court of Appeals affirmed the grant of
summary judgment.7 (Turner II, supra, 734 Fed. App’x at pp. 461-462.)
To prevail on his Bane Act claim arising from the December 2011
arrest, Turner would have to prove that he was arrested in retaliation for his
protected activity. (See CACI No. 3066 “Bane Act – Essential Factual
Elements (Civ. Code, § 52.1)” [requiring proof that defendant acted “to
retaliate against [plaintiff] for having exercised [his] right [e.g. to vote]”].)
But this fact has already been decided against Turner, and the doctrine of

The Ninth Circuit concluded that Turner “failed to ‘put forward
7

specific nonconclusory factual allegations’ to establish that Appellee Smith
harbored a retaliatory motive when initiating his . . . parole revocations” and
that Turner had presented “no evidence” implicating the other defendants.
(Turner II, supra, 734 Fed. App’x at pp. 461, 462.) As to Turner’s December
2011 arrest, the court stated as follows: “As reported to Appellee Smith,
Appellant stated, ‘Melody Smith? By the time I get done with her, she won’t
be singing any more melodies.’ This statement caused another parolee to call
Smith and report it out of ‘concern for [Smith’s] welfare.’ The parolee also
reported that Appellant made ‘several agitated and threatening statement
regarding [Smith] and the Department of Parole Operations.’ The counselor
in charge of the session confirmed the parolee’s report to Smith. Noting that
Appellant’s criminal history included a charge for possession of a loaded
firearm in public, Smith recommended Appellant’s parole revocation for
making a criminal threat. Appellant now contends that he actually stated
his ‘lawsuits’ would stop Smith from ‘singing any more melodies,’ and that
this comment was made in jest. But Appellee Smith could have reasonably
believed the reports of the parolee and the counselor.” (Id. at p. 462.)

17
claim preclusion prevents him from relitigating it. (See Pacific Mut. Life Ins.
Co. v. McConnell (1955) 44 Cal.2d 715, 724 [“it is settled that even though the
causes of action be different, the prior determination of an issue is conclusive
in a subsequent suit between the same parties as to that issue and every
matter which might have been urged to sustain or defeat its determination”];
Hernandez, supra, 49 Cal.4th at p. 505, 513-512 [federal judgment on civil
rights claim under 42 U.S.C. § 1983 barred state law tort claim where
underlying issue had been resolved in defendants’ favor].)
We find Lumpkin, supra, 49 Cal.App.4th 1223 instructive. The
plaintiff in Lumpkin filed suit in federal court alleging a claim under the
California Fair Employment and Housing Act (FEHA) that he had been
terminated from his position because of his religious beliefs, as well as a
claim under 42 United States Code section 1983 that he had been deprived of
his right to exercise his constitutionally protected religious beliefs by
defendants acting under color of state law. (Id. at p. 1228.) The federal court
granted summary judgment on all Lumpkin’s causes of action, except his
FEHA claim, over which it declined to exercise supplemental jurisdiction, and
the state FEHA claims were dismissed without prejudice to refiling in state
court. (Ibid.) In granting summary judgment, the federal court found that
Lumpkin had not presented evidence of a discriminatory motive sufficient to
proceed to trial. (Id. at p. 1231.) Lumpkin then refiled his FEHA claim in
state court, and the trial court sustained a demurrer without leave to amend
on the basis of claim preclusion. (Id. at p. 1229.) The Court of Appeal
affirmed, holding that even though there were “substantive differences”
between Lumpkin’s federal and state claims (id. at p. 1231), what mattered
for the purposes of issue preclusion was whether an issue decided in the
federal case was a “pivotal factual issue” to be decided in the state case. (Id.

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at p. 1232.) To prevail in his state action, Lumpkin would have had to prove
that his dismissal was motivated by discriminatory purposes, but that
question of fact had already been resolved against him in federal court, and
could not be relitigated in state court. (Id. at p. 1233.)
We turn now to Turner’s claim that Sims threatened him in violation of
the Bane Act. In the federal case, as here, Turner alleged in December 2011,
Sims told him that “bad things” would happen to him if he did not drop
pending lawsuits against the defendants. (See Turner I, supra, 2017 WL
897333 at *3 [describing allegation that “Sims said in December 2011 that
‘bad things’ would happen if he did not drop pending lawsuits or refrain from
filing new ones”].)
In granting summary judgment in the federal case, the district court
rejected Turner’s assertion that the alleged threat constituted “a stand-alone
First Amendment claim that survives summary judgment.” (Turner I, supra,
2017 WL 897333 at *4, fn. 9.) The court explained that although Turner did
not have to “show that his ‘speech was actually suppressed or inhibited,’ ” in
the absence of showing an “actual chilling effect on his speech” (which was
not the case) Turner would have to show that Sims intended to interfere with
his First Amendment rights and that Turner suffered legal injury as a result
of Sims’s action. (Ibid.) And the court found that Turner failed to “offer
enough admissible evidence for a reasonable jury to find that he suffered an
injury as a result of” Sims’s alleged threat. (Ibid.) The court observed that
although Turner claimed to have been “ ‘really shook up and extremely
nervous and upset’ ” after the interaction with Sims, Turner’s hurt feelings
did not constitute legal injury. (Ibid.) Further, the court found that “no
reasonable jury . . . could conclude that Sims’s alleged threat caused Turner’s
larger psychological problems.” (Ibid.)

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These findings may bar Turner from claiming damages under the Bane
Act from alleged injury arising from Sims’s threat, but they do not bar
Turner’s Bane Act cause of action against Sims, because defendants have
failed to show that the Bane Act requires that Turner prove that Sims’s
threat caused injury. The Bane Act authorizes Turner to pursue a civil action
for damages, including damages under Civil Code section 52. (Civ. Code,
§ 52.1, subd. (c).) Civil Code section 52 provides for damages up to three
times actual damages “but in no case less than four thousand dollars” for
violation of several statutes, including Civil Code section 51, the Unruh Act.
(Civ. Code, § 52, subd. (a).) Although Civil Code section 52 itself does not
mention the Bane Act, we assume, without deciding, that the Bane Act’s
explicit reference to section 52 authorizes the award of damages under Civil
Code section 52, subdivision (a). We note that under the Unruh Act,
statutory damages are available without proof of harm and causation, and we
assume, without deciding, that the same rule applies under the Bane Act. 8
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [Unruh Act “provides
for damages aside from any actual damages incurred by the plaintiff”]; see
also Directions for Use for CACI No. 3066 [discussing damages available
under the Bane Act].)
To sum up then, to prove his threat cause of action under the Bane Act,
Turner will have to prove that by threat, intimidation or coercion, Sims

8 In his Fifth Amended Complaint, Turner alleges that Sims’s conduct
caused injuries to Turner in the form of “emotional and mental distress,
trauma, anguish, humiliation, embarrassment, fright, shock, pain,
discomfort, anxiety, and a deprivation of his civil and statutory rights,” and
that accordingly Sims is liable to Turner for damages “in an amount subject
to proof.” But Turner’s prayer for relief includes “statutory damages . . .
under Civil Code § 52.1.”

20
attempted to interfere with Turner’s right to pursue his lawsuits. (Civ. Code,
§ 52.1, subds. (b) & (c).)
In seeking summary judgment in the trial court on Turner’s Bane Act
threat claim, defendants’ argument rested on a sworn declaration in which
Sims stated under penalty of perjury, “At no point did I ever tell Turner that
if he did not stop protesting and litigating his parole conditions, ‘bad things
are going to happen to you.’ Nor did I ever threaten Turner not to file
lawsuits.” In opposing summary judgment, Turner submitted a sworn
declaration stating that on December 11, 2011, when he went to the parole
office for a drug test, he was greeted by Sims “who was very upset and
literally yelled at me to stop my lawsuits. He was ranting and raving and I
was sure I was going to be immediately arrested. . . . At one point,
[defendant] Sims said, ‘Turner, you’re suing everyone. You’re suing motels.
You’re suing us. You got to stop this. And if you don’t stop this, bad things
are going to happen to you.’ [¶] I took this as a serious threat of physical
harm, perhaps even death.” Thus, from the declarations of Sims and Turner,
it appears that there is a triable dispute of fact with respect to the alleged
threat, which precludes a grant of summary judgment.
On appeal, defendants argue that Turner’s threat cause of action is
barred by the federal court’s finding that no reasonable jury could find from
the undisputed facts that defendants violated Turner’s constitutional rights.
(Turner I, supra, 2017 WL 897333 at *6.) That finding, however, was limited
to Turner’s claim for retaliatory arrest, not to Turner’s stand-alone threat
claim. (Ibid.) Defendants have not shown that the federal district court
made any findings as to whether or not Sims threatened Turner in an
attempt to interfere with Turner’s right to sue.

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In sum, defendants fail to show that Turner’s threat claim against Sims
is barred by statutory immunity or by the doctrine of issue preclusion, and
they fail to show that there is no triable issue as to any material fact
concerning that cause of action. This precludes summary judgment,
regardless of the merits of Turner’s other causes of action. (Code Civ. Proc.,
§ 437c, subd. (c); see also Homestead Savings v. Superior Court (1986) 179
Cal.App.3d 494, 498 [causes of action may not be summarily adjudicated in
the absence of a motion for summary adjudication].) Accordingly, we reverse
the judgment of the trial court.
DISPOSITION
The judgment is reversed with directions to the trial court to vacate its
ruling on summary judgment and enter a new order denying defendants’
motion. The parties shall bear their own costs on appeal.

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_________________________
Miller, J.

WE CONCUR:

_________________________
Stewart, P.J.

_________________________
Richman, J.

A164194, Turner v. Smith

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9390110. Public record. Not legal advice.