Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 10/21/2021 04:21 PM Sherri R. Carter, Executive Officer/Clerk of Court, by C. Cappadona,Deputy Clerk
LINDA S. BAUERMEISTER (S.B. ¹113321) EXEMPT FROM
ROBERT KOSTRENICH (S.B. ¹123370) FEES PURSUANT TO
OMAR SUBAT (S.B. ¹307820) GOVERNMENT CODE $ 6103
LAW OFFICES OF BARBER & BAUERMEISTER
1551 N. Tustin Avenue, Suite 720
Santa Ana, California 92705
(714) 973-1075
(714) 973-1670 (fax)
Attorneys for Defendant,
ROBERT J. OW'IECKI
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
10
MARLENE GARCIA, and J.J., a minor, by ) CASE NO. BC679114
12 and through his guardian ad litem, )
MARLENE GARCIA ) DEFENDANT ROBERT J. OWIECKI'S
13 ) SUPPLEMENTAL BRIEF RE: BANE
Plaintiff, ) CAUSE OF ACTION PURSUANT TO
14 ) COURT ORDER RE: MOTION FOR
vs. ) SUMMARY JUDGMENT, OR IN THE
15 ) ALTERNATIVE, FOR SUMMARY
ROBERT J. OWIECKI, WHITTIER CITY ) AD JUDICATION
16 SCHOOL DISTRICT, and DOES 1-20, )
) DATE: October 14, 2021
17 ) TIME: 1:30 p.m.
Defendants. ) DEPT: C
18 )
) Reservation Number: 979232391762
19 )
) Complaint Filed: 10/1 1/2017
20 ) Trial Date: 11/29/2021
TO THE CLERK OF THE COURT AND TO ALL ATTORNEYS OF RECORD HEREIN:
Defendant, ROBERT J. OWIECKI ("OWIECKI") hereby submits his Supplemental Brief
regarding the Bane Cause of Action as Ordered by the Court at the October 14, 2021, hearing
regarding OWIECKI's Motion for Summary Judgment/Summary Adjudication.
As directed, this following Brief is limited to five (5) pages.
27
28
1&rhhgarciahowieckiReply
DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION
MEMORANDUM OF POINTS AND AUTHORITIES
1. SUMMARY OF ARGUMENT RE: BANE ACT.
In the Court's previous Tentative Ruling regarding the Fourth Cause of Action for Violation
of Cal. Civil Code Section 52.1, the Court noted OWIECKI's argument that "he is entitled to
summary adjudication of the fourth cause of action because Plaintiffs do not a11ege/evidence of an
independent threat, intimidation, or coercion under Bane. Then, it citing to Austin B., this Court
quoted the pertinent part of that decision as "there is no evidence of acts that could be construed as
threats, violence or intimidation that actually caused a loss of their right to an education or that
attempted to do so..."
10 The determinative language of the Court's previous tentative was "here, Plaintiffs proffer no
evidence that the purported batter(ies) could be construed as threats, intimidation, or coercion, and
12 Plaintiffs cite no legal authority for the proposition that an act of alleged battery can, in an of
13 itself—absent any evidence of specific intent to violate a plaintiff s right — constitute an attempt to
14 "interfere by threats, intimidation, or coercion, with the exercise of enjoyment by an individual" with
15 equal access to education."
That ruling remains correctly applied even in light of the "new case" cited and referred to by
17 Plaintiff's. OWIECKI's Motion for Summary Adjudication must be granted.
18 2. MURCHISON HAS NO APPLICATION FOR SEVERAL REASONS.
19 Murchison v. County of Tehama, cited by Plaintiff, involved an action against a police
20 officer. The background of that case is crucial. Arrestee brought action against county law
21 enforcement officers arising from officers'arrantless entry onto arrestee's rural property to secure a
22 rifle they spotted, alleging $19S3 claims of unlawful search and excessive force, state law claims of
23 assault and battery by a peace officer, and Bane Act civil rights claims. The additional facts were
24 that there was a gun pointed to within inches of the 66 year old Plaintiff's head, expletive-filled
25 yelling, along with the tackling of the arrestee who ran for his rifle thinking he was being robbed.
The Appellate Court in Murchison found a triable issue of fact on the constitutional claims as well as
27 on the Bane cause of action.
28 There were a series of events in Murchison, as opposed to one alleged instance by JJ.
1 lmrhhgarcia&owiecki Reply 2
DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION
This Court's final ruling on the MSA (stipulated to by both counsel) as to the First Cause of
Action for alleged violation of Constitutional rights by the minor JJ stated "the Court finds
Plaintiffs have failed to raise a triable issue of materialfact on the issue of mhether Defendant's
purported actions mere motivated by JJ's disability." In the instant action, there are no
constitutional violations that remain in play. The Fourth Cause of Action incorporates the previous
50 paragraphs of the FAC and says nothing on its own. There are no facts to support the Bane Act
claims. The First Cause of Action is now out of the case, and the Second and Third Causes of Action
are simply not against OWIECKI and they never were. With that background, the only allegations
in the Fourth Cause of Action are " the actions against OWIECKI, as alleged herein, constitute
10 interference with plaintiff s rights under the Constitution and the laws of the state of California by
threats, intimidation, and/or coercion in violation of Cal. Civ. Code Section 52.1. Defendant
12 OWIEKCI abused the minor plaintiff physically, verbally and emotionally..." (FAC, Paragraph 52).
13 Murchison involved allegations of unreasonable search and seizure as well as excessive force
14 claims under Section 1983. It stands to reason that when the summary judgment there was reversed
as to the Constitutional claims, there would be a triable issue as to the State Law Bane claim, The
converse is true here. As JJ's Constitutional claims were dismissed at the previous hearing, there
17 can be no action under Bane independent of a constitutional violation.
18 3. SCHOOL DISTRICT CASES ARE DIRECTLY ON POINT.
19 A number of cases, including Murchison, identify the standard as follows: "The essence of a
20 Bane Act claim is that the defendant, by the specified improper means ..., tried to or did prevent the
21 plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to
22 do something that he or she was not required to do under the law."
23 Battery does not fit. Of course, plaintiff JJ has a separate battery cause of action. Within the
foregoing standard, there are no threats, intimidation or coercion (even assuming a battery), Notably,
there is no evidence that OWIECKI tried to prevent the plaintiff JJ from doing something he had the
right to do nor is there any evidence suggesting that OWIECKI was trying to force JJ to do
something he was not required to do under the law. The alleged battery does not equate to a
1&rh1garcia10wieckiReply
DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION
Constitutional violation. There needs to be something in addition, i.e., the unreasonable search and
seizure (as in Murchison) or other civil rights violations, None are articulated here.
A. The decision in Austin 8.
The Bane Act prohibits intentionally interfering with a person's state civil rights by way of
threats, intimidation, or coercion. [Jones v. Kmart Corp., 17 Cal. 4th 329, 332 (1998)]. The essence
of such a claim is that "the defendant, by the specified improper means...tried to or did prevent the
plaintiff from doing something he or she had the right to do under the law or force the plaintiff to do
something he or she was not required to do." [Austin B. v. Escondido Union Sch. Dist., 149 Cal.
App. 4th 860, 883 (2007)].
10 Austin involved a nonsuit on Bane. Plaintiffs assert that the court erred in granting nonsuit
on their Bane Act (Civ.Code, $ 52.1) claim as substantial evidence showed that their exercise and
12 enjoyment of their constitutional right to a public education was interfered with by threats,
13 intimidation or coercion. This contention is unavailing. [A ustin B. v. Escondido Union Sch. Dist.„
14 149 Cal. App. 4th 860, 881 (2007)].
15 Defendants brought a motion for nonsuit on plaintiffs'ane Act claim, arguing that there was
16 no evidence presented at trial that their exercise of their right to a public education was interfered
17 with by threats, intimidation or coercion. In opposition to this motion, plaintiffs argued that Priest'
18 acts constituted intimidation or coercion, that he need not have had a discriminatory motivation, and
19 that he interfered with plaintiffs'xercise and enjoyment of going to school.
20 The court granted the motion, finding that at most the evidence showed that Priest was
21 "wrongfully using pain to gain compliance or, perhaps, out of anger or frustration," and there was no
22 substantial evidence to support a finding that alleged acts of defendants "were intended to interfere
23 with the [plaintiff s] rights or that [plaintiffs] were coerced into not exercising their civil rights."
24 The Court of Appeal concluded as follows; "Here, there is no evidence presented that the
25 actions of Priest caused (1) Austin and Jessica not to attend school or (2) that he attempted to
achieve this result. While there was sufficient evidence to send the issue to the jury as to whether he
committed a battery on plaintiffs, there is no evidence of acts that could be construed as threats,
28 violence or intimidation that actually caused a loss of their right to an education or that attempted
1&rhhgarciahowieckiReply 4
DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION
to do so. The court did not err in granting a nonsuit on the Banes Act claim." fAustin B. v,
Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007)]. (Emphasis added).
The most that JJ can argue is that he was battered or that his non-specific "rights" were
violated. The Section 1983 claims for unreasonable search and seizure/excessive force have been
dismissed. Plaintiff makes no other contention as to what "rights" he was allegedly deprived of.
Then, within the language of Murchison, there are no clearly delineated rights that remains in
this action by JJ or any right that still is plainly applicable.
8. The decision in R.N.
R.N. by Ck through Neff v. Travis Unified Sch. Dist., [No. 220CV00562KJMJDP, 2020 WL
10 7227561, at *13 (E.D. Cal. Dec. 8, 2020)], is case that followed Austin B.
"In their motion to dismiss, the District defendants argue plaintiffs have failed to state a
12 claim of relief against Mr. Mears under California's Bane Act because they do not provide any
13 "factual allegations demonstrating that TUSD, SCOE, or MEARS were personally involved in any
14 threatening, coercive, violent or intimidating conduct." .... In their opposition, plaintiffs argue they
15 have pled sufficient facts to show District defendants deprived R.N. of her state constitutional right
16 to a school-based education "by way of abuse and acquiescence."
17 R.N. quotes Austin B. at some length, but adds the outcome determinative sentence. "The
18 Bane Act prohibits intentionally interfering with a person's state civil rights by way of threats,
19 intimidation, or coercion. (Citation omitted) ........ The elements of a Bane Act excessive force
20 claim are essentially identical to those of a f 19S3 excessive force claim, [Chaudhry v. City of Los
21 Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014)],...... Given the similarities between excessive force
claims under )1983 and under the Bane Act, the court need not analyze District
23
defendants'rguments
about plaintiffs'ane Act claims. For the same reasons provided above regarding the $
24 19&3 claims, and given the additional element of intent plaintiffs must plead to state a Bane Act
25 claim, which plaintiffs have not adequately pled here, the court GRANTS District
26
defendants'otion
to dismiss plaintiffs'ane Act claim." [R.N. by dc through Neff v. Travis Unified Sch. Dist.,
27 No. 220CV00562KJMJDP, 2020 WL 7227561, at *13 (E.D. Cal. Dec. 8, 2020)].
28
I'unrhigarcia&owieckiRep! y
DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION
The district court erred in dismissing the Estate's $ 52.1 claim and in denying its post-trial
motion to amend the judgment....The Estate won its excessive force claim under ) 1983 at trial. The
City defendants concede in their brief to us that a successful claim for excessive force under the
Fourth Amendment provides the basis for a successful claim under $ 52.1. See Cameron v. Craig,
713 F.3d 1012, 1022 (9th Cir.2013) (" [T]he elements of the excessive force claim under ( 52.1 are
the same as under ) 1983."); Bender v. Cnty. of L.A., 217 Cal.App.4th 968, 159 Cal.Rptr.3d 204,
212 — 15 (2013)]. [Chaudhry v. City of I.os Angeles, 751 F.3d 1096, 1105 —06 (9th Cir. 2014)].
See also Venegas v. County of Los Angeles, [153 Cal. App. 4th 1230, 1248 (2d Dist. 2007),
review denied, (Oct. 31, 2007)], dismissing a Bane Act claim because a section 1983 claim based on
10 the same facts had been previously dismissed and the plaintiff did not allege any violation of state
law "separate and distinct" from the alleged violations of federal law on which the 1983 claim was
12 based.
13 4. CONCLUSION.
14 There is no articulated difference between the Section 1983 claims and the Bane Act cause of
15 action. No facts support either. Summary adjudication as to the Civ. Code Section 52.1 (fourth)
16 cause of action is warranted based on the foregoing. JJ was not deprived of any constitutional rights
17 and there was no threat or intimidation in this context.
18
19 DATED: October 21, 2021 BARBER 4 BAUERMEISTER
20
21
LINDA BAUERMEISTER
22 ROBERT KOSTRENICH
Attorneys for Defendant, ROBERT J.
23 OWIECKI
24
25
26
27
28
I'mrhhgarcia&OwieckiReply
DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF ORANGE
I am employed in the County of Orange, State of California. I am over the age of 18 and
not a party to the within action. My business address is 1551 N. Tustin Avenue, Suite 720, Santa
Ana, California 92705-8637.
On October 21, 2021, I served the foregoing document described DEFENDANT
ROBERT J. OWIECKI'S SUPPLEMENTAL BRIEF RK: BANE CAUSE OF ACTION
PURSUANT TO COURT ORDER RK: MOTION FOR SUMMARY JUDGMENT, OR IN
THE ALTERNATIVE, FOR SUMMARY ADJUDICATION on the interested parties in this
10 action:
"SKE ATTACHED SERVICE LIST"
12
[] BY U.S. MAIL: I am familiar with this office's practice of collection and processing
13
correspondence by mailing. Under that practice it would be deposited with the U.S. postal service
14 on that same day with postage fully prepaid at Santa Ana, California, in the ordinary course of
business,
15
[X] BY ELECTRONIC MAIL or ELECTRONIC TRANSMISSION: I caused to be served
16
via electronic transmission by cassandra bandbfirm.com and received no bounce back to the
17 parties/counsel identified on the attached service list. Service will not be provided via U.S. mail.
[] BY FEDERAL EXPRESS: I caused an envelope containing the above listed documents(s)
18
to be delivered to the above listed parties for the next business day delivery.
19
20 declare under penalty of perjury under the laws of the State of California that the
I
foregoing is true and correct.
Executed on October 21, 2021, at Santa Ana, California
23
CASSANDRA R. DIEGO
24 Signature
Type or Print Name
25
26
27
nmrh(garcia, marlenehpos
PROOF OF SERVICE
SERVICE LIST
Garcia v. Owiecki
4 9051
Teresa Li, Esq. Attorneys for Plaintiff, MARLENE GARCIA
LAW OFFICES OF TERESA LI, PC and J,J.
548 Market St.
PMB 24496
San Francisco, CA 94104
T: (415) 423-3377
F: (888) 646-5493
teresa lawofficesofteresali.com
admin lawofficesofteresali.com
Daniel K. Balaban, Esq. Associated Counsel for Plaintiff
BALABAN 4 SPIELBERGER, LLP
11999 San Vicente Blvd., Suite 345
10 :
devil
Los Angeles, CA 90049
P: (424) 832-7677
~db ~ddh
I
db
h-
Vanessa Loftus-Brewer-
I .
db
12
Marion Craig Wadlington, Esq. Attorneys for Defendant, WHITTIER CITY
13 Scott Danforth, Esq. SCHOOL DISTRICT
Atkinson, Andelson, Loya, Ruud k Rorno
14 12800 Center Court Dr S, Ste 300
Cerritos, CA 90703-936
15 T: (562) 653-3200
F:(562) 653-3333
16
17
d fdhd,
mwadlin ton aalrr.com
18
19
20
23
24
25
26
27
nmrh(garcia, marlene)pos
PROOF OF SERVICE
Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 10/21/2021 04:21 PM Sherri R. Carter, Executive Officer/Clerk of Court, by C. Cappadona,Deputy Clerk LINDA S. BAUERMEISTER (S.B. ¹113321) EXEMPT FROM ROBERT KOSTRENICH (S.B. ¹123370) FEES PURSUANT TO OMAR SUBAT (S.B. ¹307820) GOVERNMENT CODE $ 6103 LAW OFFICES OF BARBER & BAUERMEISTER 1551 N. Tustin Avenue, Suite 720 Santa Ana, California 92705 (714) 973-1075 (714) 973-1670 (fax) Attorneys for Defendant, ROBERT J. OW'IECKI SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 10 MARLENE GARCIA, and J.J., a minor, by ) CASE NO. BC679114 12 and through his guardian ad litem, ) MARLENE GARCIA ) DEFENDANT ROBERT J. OWIECKI'S 13 ) SUPPLEMENTAL BRIEF RE: BANE Plaintiff, ) CAUSE OF ACTION PURSUANT TO 14 ) COURT ORDER RE: MOTION FOR vs. ) SUMMARY JUDGMENT, OR IN THE 15 ) ALTERNATIVE, FOR SUMMARY ROBERT J. OWIECKI, WHITTIER CITY ) AD JUDICATION 16 SCHOOL DISTRICT, and DOES 1-20, ) ) DATE: October 14, 2021 17 ) TIME: 1:30 p.m. Defendants. ) DEPT: C 18 ) ) Reservation Number: 979232391762 19 ) ) Complaint Filed: 10/1 1/2017 20 ) Trial Date: 11/29/2021 TO THE CLERK OF THE COURT AND TO ALL ATTORNEYS OF RECORD HEREIN: Defendant, ROBERT J. OWIECKI ("OWIECKI") hereby submits his Supplemental Brief regarding the Bane Cause of Action as Ordered by the Court at the October 14, 2021, hearing regarding OWIECKI's Motion for Summary Judgment/Summary Adjudication. As directed, this following Brief is limited to five (5) pages. 27 28 1&rhhgarciahowieckiReply DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION MEMORANDUM OF POINTS AND AUTHORITIES 1. SUMMARY OF ARGUMENT RE: BANE ACT. In the Court's previous Tentative Ruling regarding the Fourth Cause of Action for Violation of Cal. Civil Code Section 52.1, the Court noted OWIECKI's argument that "he is entitled to summary adjudication of the fourth cause of action because Plaintiffs do not a11ege/evidence of an independent threat, intimidation, or coercion under Bane. Then, it citing to Austin B., this Court quoted the pertinent part of that decision as "there is no evidence of acts that could be construed as threats, violence or intimidation that actually caused a loss of their right to an education or that attempted to do so..." 10 The determinative language of the Court's previous tentative was "here, Plaintiffs proffer no evidence that the purported batter(ies) could be construed as threats, intimidation, or coercion, and 12 Plaintiffs cite no legal authority for the proposition that an act of alleged battery can, in an of 13 itself—absent any evidence of specific intent to violate a plaintiff s right — constitute an attempt to 14 "interfere by threats, intimidation, or coercion, with the exercise of enjoyment by an individual" with 15 equal access to education." That ruling remains correctly applied even in light of the "new case" cited and referred to by 17 Plaintiff's. OWIECKI's Motion for Summary Adjudication must be granted. 18 2. MURCHISON HAS NO APPLICATION FOR SEVERAL REASONS. 19 Murchison v. County of Tehama, cited by Plaintiff, involved an action against a police 20 officer. The background of that case is crucial. Arrestee brought action against county law 21 enforcement officers arising from officers'arrantless entry onto arrestee's rural property to secure a 22 rifle they spotted, alleging $19S3 claims of unlawful search and excessive force, state law claims of 23 assault and battery by a peace officer, and Bane Act civil rights claims. The additional facts were 24 that there was a gun pointed to within inches of the 66 year old Plaintiff's head, expletive-filled 25 yelling, along with the tackling of the arrestee who ran for his rifle thinking he was being robbed. The Appellate Court in Murchison found a triable issue of fact on the constitutional claims as well as 27 on the Bane cause of action. 28 There were a series of events in Murchison, as opposed to one alleged instance by JJ. 1 lmrhhgarcia&owiecki Reply 2 DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION This Court's final ruling on the MSA (stipulated to by both counsel) as to the First Cause of Action for alleged violation of Constitutional rights by the minor JJ stated "the Court finds Plaintiffs have failed to raise a triable issue of materialfact on the issue of mhether Defendant's purported actions mere motivated by JJ's disability." In the instant action, there are no constitutional violations that remain in play. The Fourth Cause of Action incorporates the previous 50 paragraphs of the FAC and says nothing on its own. There are no facts to support the Bane Act claims. The First Cause of Action is now out of the case, and the Second and Third Causes of Action are simply not against OWIECKI and they never were. With that background, the only allegations in the Fourth Cause of Action are " the actions against OWIECKI, as alleged herein, constitute 10 interference with plaintiff s rights under the Constitution and the laws of the state of California by threats, intimidation, and/or coercion in violation of Cal. Civ. Code Section 52.1. Defendant 12 OWIEKCI abused the minor plaintiff physically, verbally and emotionally..." (FAC, Paragraph 52). 13 Murchison involved allegations of unreasonable search and seizure as well as excessive force 14 claims under Section 1983. It stands to reason that when the summary judgment there was reversed as to the Constitutional claims, there would be a triable issue as to the State Law Bane claim, The converse is true here. As JJ's Constitutional claims were dismissed at the previous hearing, there 17 can be no action under Bane independent of a constitutional violation. 18 3. SCHOOL DISTRICT CASES ARE DIRECTLY ON POINT. 19 A number of cases, including Murchison, identify the standard as follows: "The essence of a 20 Bane Act claim is that the defendant, by the specified improper means ..., tried to or did prevent the 21 plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to 22 do something that he or she was not required to do under the law." 23 Battery does not fit. Of course, plaintiff JJ has a separate battery cause of action. Within the foregoing standard, there are no threats, intimidation or coercion (even assuming a battery), Notably, there is no evidence that OWIECKI tried to prevent the plaintiff JJ from doing something he had the right to do nor is there any evidence suggesting that OWIECKI was trying to force JJ to do something he was not required to do under the law. The alleged battery does not equate to a 1&rh1garcia10wieckiReply DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION Constitutional violation. There needs to be something in addition, i.e., the unreasonable search and seizure (as in Murchison) or other civil rights violations, None are articulated here. A. The decision in Austin 8. The Bane Act prohibits intentionally interfering with a person's state civil rights by way of threats, intimidation, or coercion. [Jones v. Kmart Corp., 17 Cal. 4th 329, 332 (1998)]. The essence of such a claim is that "the defendant, by the specified improper means...tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or force the plaintiff to do something he or she was not required to do." [Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007)]. 10 Austin involved a nonsuit on Bane. Plaintiffs assert that the court erred in granting nonsuit on their Bane Act (Civ.Code, $ 52.1) claim as substantial evidence showed that their exercise and 12 enjoyment of their constitutional right to a public education was interfered with by threats, 13 intimidation or coercion. This contention is unavailing. [A ustin B. v. Escondido Union Sch. Dist.„ 14 149 Cal. App. 4th 860, 881 (2007)]. 15 Defendants brought a motion for nonsuit on plaintiffs'ane Act claim, arguing that there was 16 no evidence presented at trial that their exercise of their right to a public education was interfered 17 with by threats, intimidation or coercion. In opposition to this motion, plaintiffs argued that Priest' 18 acts constituted intimidation or coercion, that he need not have had a discriminatory motivation, and 19 that he interfered with plaintiffs'xercise and enjoyment of going to school. 20 The court granted the motion, finding that at most the evidence showed that Priest was 21 "wrongfully using pain to gain compliance or, perhaps, out of anger or frustration," and there was no 22 substantial evidence to support a finding that alleged acts of defendants "were intended to interfere 23 with the [plaintiff s] rights or that [plaintiffs] were coerced into not exercising their civil rights." 24 The Court of Appeal concluded as follows; "Here, there is no evidence presented that the 25 actions of Priest caused (1) Austin and Jessica not to attend school or (2) that he attempted to achieve this result. While there was sufficient evidence to send the issue to the jury as to whether he committed a battery on plaintiffs, there is no evidence of acts that could be construed as threats, 28 violence or intimidation that actually caused a loss of their right to an education or that attempted 1&rhhgarciahowieckiReply 4 DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION to do so. The court did not err in granting a nonsuit on the Banes Act claim." fAustin B. v, Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007)]. (Emphasis added). The most that JJ can argue is that he was battered or that his non-specific "rights" were violated. The Section 1983 claims for unreasonable search and seizure/excessive force have been dismissed. Plaintiff makes no other contention as to what "rights" he was allegedly deprived of. Then, within the language of Murchison, there are no clearly delineated rights that remains in this action by JJ or any right that still is plainly applicable. 8. The decision in R.N. R.N. by Ck through Neff v. Travis Unified Sch. Dist., [No. 220CV00562KJMJDP, 2020 WL 10 7227561, at *13 (E.D. Cal. Dec. 8, 2020)], is case that followed Austin B. "In their motion to dismiss, the District defendants argue plaintiffs have failed to state a 12 claim of relief against Mr. Mears under California's Bane Act because they do not provide any 13 "factual allegations demonstrating that TUSD, SCOE, or MEARS were personally involved in any 14 threatening, coercive, violent or intimidating conduct." .... In their opposition, plaintiffs argue they 15 have pled sufficient facts to show District defendants deprived R.N. of her state constitutional right 16 to a school-based education "by way of abuse and acquiescence." 17 R.N. quotes Austin B. at some length, but adds the outcome determinative sentence. "The 18 Bane Act prohibits intentionally interfering with a person's state civil rights by way of threats, 19 intimidation, or coercion. (Citation omitted) ........ The elements of a Bane Act excessive force 20 claim are essentially identical to those of a f 19S3 excessive force claim, [Chaudhry v. City of Los 21 Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014)],...... Given the similarities between excessive force claims under )1983 and under the Bane Act, the court need not analyze District 23 defendants'rguments about plaintiffs'ane Act claims. For the same reasons provided above regarding the $ 24 19&3 claims, and given the additional element of intent plaintiffs must plead to state a Bane Act 25 claim, which plaintiffs have not adequately pled here, the court GRANTS District 26 defendants'otion to dismiss plaintiffs'ane Act claim." [R.N. by dc through Neff v. Travis Unified Sch. Dist., 27 No. 220CV00562KJMJDP, 2020 WL 7227561, at *13 (E.D. Cal. Dec. 8, 2020)]. 28 I'unrhigarcia&owieckiRep! y DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION The district court erred in dismissing the Estate's $ 52.1 claim and in denying its post-trial motion to amend the judgment....The Estate won its excessive force claim under ) 1983 at trial. The City defendants concede in their brief to us that a successful claim for excessive force under the Fourth Amendment provides the basis for a successful claim under $ 52.1. See Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir.2013) (" [T]he elements of the excessive force claim under ( 52.1 are the same as under ) 1983."); Bender v. Cnty. of L.A., 217 Cal.App.4th 968, 159 Cal.Rptr.3d 204, 212 — 15 (2013)]. [Chaudhry v. City of I.os Angeles, 751 F.3d 1096, 1105 —06 (9th Cir. 2014)]. See also Venegas v. County of Los Angeles, [153 Cal. App. 4th 1230, 1248 (2d Dist. 2007), review denied, (Oct. 31, 2007)], dismissing a Bane Act claim because a section 1983 claim based on 10 the same facts had been previously dismissed and the plaintiff did not allege any violation of state law "separate and distinct" from the alleged violations of federal law on which the 1983 claim was 12 based. 13 4. CONCLUSION. 14 There is no articulated difference between the Section 1983 claims and the Bane Act cause of 15 action. No facts support either. Summary adjudication as to the Civ. Code Section 52.1 (fourth) 16 cause of action is warranted based on the foregoing. JJ was not deprived of any constitutional rights 17 and there was no threat or intimidation in this context. 18 19 DATED: October 21, 2021 BARBER 4 BAUERMEISTER 20 21 LINDA BAUERMEISTER 22 ROBERT KOSTRENICH Attorneys for Defendant, ROBERT J. 23 OWIECKI 24 25 26 27 28 I'mrhhgarcia&OwieckiReply DEFENDANT OWIECKI'S BRIEF RE: BANE CAUSE OF ACTION PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 1551 N. Tustin Avenue, Suite 720, Santa Ana, California 92705-8637. On October 21, 2021, I served the foregoing document described DEFENDANT ROBERT J. OWIECKI'S SUPPLEMENTAL BRIEF RK: BANE CAUSE OF ACTION PURSUANT TO COURT ORDER RK: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION on the interested parties in this 10 action: "SKE ATTACHED SERVICE LIST" 12 [] BY U.S. MAIL: I am familiar with this office's practice of collection and processing 13 correspondence by mailing. Under that practice it would be deposited with the U.S. postal service 14 on that same day with postage fully prepaid at Santa Ana, California, in the ordinary course of business, 15 [X] BY ELECTRONIC MAIL or ELECTRONIC TRANSMISSION: I caused to be served 16 via electronic transmission by cassandra bandbfirm.com and received no bounce back to the 17 parties/counsel identified on the attached service list. Service will not be provided via U.S. mail. [] BY FEDERAL EXPRESS: I caused an envelope containing the above listed documents(s) 18 to be delivered to the above listed parties for the next business day delivery. 19 20 declare under penalty of perjury under the laws of the State of California that the I foregoing is true and correct. Executed on October 21, 2021, at Santa Ana, California 23 CASSANDRA R. DIEGO 24 Signature Type or Print Name 25 26 27 nmrh(garcia, marlenehpos PROOF OF SERVICE SERVICE LIST Garcia v. Owiecki 4 9051 Teresa Li, Esq. Attorneys for Plaintiff, MARLENE GARCIA LAW OFFICES OF TERESA LI, PC and J,J. 548 Market St. PMB 24496 San Francisco, CA 94104 T: (415) 423-3377 F: (888) 646-5493 teresa lawofficesofteresali.com admin lawofficesofteresali.com Daniel K. Balaban, Esq. Associated Counsel for Plaintiff BALABAN 4 SPIELBERGER, LLP 11999 San Vicente Blvd., Suite 345 10 : devil Los Angeles, CA 90049 P: (424) 832-7677 ~db ~ddh I db h- Vanessa Loftus-Brewer- I . db 12 Marion Craig Wadlington, Esq. Attorneys for Defendant, WHITTIER CITY 13 Scott Danforth, Esq. SCHOOL DISTRICT Atkinson, Andelson, Loya, Ruud k Rorno 14 12800 Center Court Dr S, Ste 300 Cerritos, CA 90703-936 15 T: (562) 653-3200 F:(562) 653-3333 16 17 d fdhd, mwadlin ton aalrr.com 18 19 20 23 24 25 26 27 nmrh(garcia, marlene)pos PROOF OF SERVICE