IS COLOR OF STATE LAW REQUIRED UNDER THE STATE’S CIVIL RIGHTS ACT
IS COLOR OF STATE LAW REQUIRED UNDER THE STATE’S CIVIL RIGHTS ACT
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IS COLOR OF STATE LAW REQUIRED UNDER THE STATE’S CIVIL RIGHTS ACT

| Apr 17, 2019 | Firm News

No.  “If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or 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, subd. (a); [emphasis added]

A plaintiff may focus on Civil Code § 43 which states that, “…every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.” [emphasis added]

The Bane Act. Civil Code section 52.1.

“The Bane Act permits an individual to pursue a civil action for damages where another person ‘interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or 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.’ ‘The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threat[], 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.’ ” (King v. State of California (2015) 242 Cal.App.4th 265, 294 [195 Cal.Rptr.3d 286], internal citation omitted.)

The Bane Act provides that speech alone is not sufficient to constitute a violation unless it involves a credible threat of violence. (Civ. Code, § 52.1(j).) This limitation would appear to foreclose a claim based on threats, intimidation, or coercion involving a nonviolent consequence. (See Cabesuela v. Browning-Ferris Industries (1998) 68 Cal.App.4th 101, 111 [80 Cal.Rptr.2d 60] [to state a cause of action under Bane Act there must first be violence or intimidation by threat of violence].) For example, it would not be a violation to threaten to report someone to immigration if the person exercises a right granted under labor law.

No case has been found, however, that applies the speech limitation to foreclose such a claim, and several courts have suggested that this point is not fully settled. (See Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [137 Cal.Rptr.3d 839] 256. [we “need not decide that every plaintiff must allege violence or threats of violence in order to maintain an action under section 52.1”]; City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 408 [39 Cal.Rptr.3d 1] [also noting issue but finding it unnecessary to address].)

Civil Code section 52 (a) provides for damages up to three times actual damages but a minimum of $4,000 for violations of Civil Code section 51 (Unruh Act),51.5, and 51.6. Civil Code section 52(b) provides for punitive damages for violations of Civil Code sections 51.7 (Ralph Act) and 51.9. Neither subsection of Section 52 mentions the Bane Act or Civil Code section 52.1. Nevertheless, the reference to section 52 in subsection (b) of the Bane Act would seem to indicate that damages may be recovered under both subsections (a) and (b) of section 52.

Under the Unruh Act, if only the statutory minimum damages of $4,000 is sought, it is not necessary to prove harm and causation. (See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195] [Section 52 provides for minimum statutory damages for every violation of section 51, regardless of the plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means special and general damages].) Presumably, the same rule applies under the Bane Act as the statutory minimum of section 52(a) should be recoverable.

“The Legislature enacted section 52.1 to stem a tide of hate crimes.” (Jones v.Kmart Corp. (1998) 17 Cal.4th 329, 338 [70 Cal.Rptr.2d 844, 949 P.2d 941], internal citation omitted.)

With respect to who a Bane Act claim may be brought against, Section 52.1 allows claims to be brought against “a person or persons, whether or not acting under color of state law ….” (Civ. Code § 51, subd. (a).) The scope of this is as broad as it seems. The word “person” includes the panoply of non-biological legal persons, including corporations and public agencies. (See Civ. Code, § 14 [defining “person” to include a corporation]; see, e.g., Jones v. Kmart Corp.(1998) 17 Cal.4th 329 [reversing liability against a corporation under the Bane Act on unrelated substantive grounds, but never disputing the liability of a corporation under the Bane Act]; Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744 [affirming Bane Act liability against a county].) Further, “[g]overnment entities have respondeat superior liability for their employees’ Bane Act violations.” (Gant v. County of Los Angeles (C.D. Cal. 2011) 765 F. Supp. 2d 1238, 1249-50.)

See  Xue Lu v. United States of America, (9th Cir. 2010) 621 F.2d 944 .

Robert Rodriguez has litigated malicious prosecution and civil rights claims under 42 U.S.C. § 1983 in the California U.S. District Courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.

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