DAVIS & WOJCIK A PROFESSIONAL LAW CORPORATION ROBERT A. DAVIS, JR., State Bar No. 160357 JOSEPH M. WOJCIK, State Bar No. 177296 1105 E. Florida Ave. Hemet, CA 92542 Telephone: (909) 652-9000 Facsimile: (909) 658-8308
LAW OFFICES OF ELLIOT J. ABELSON ELLIOT J. ABELSON, State Bar No. 41846 8491 West Sunset Blvd., Suite 1100 Los Angeles, CA 90069-1911 Telephone: (323) 960-1935 Facsimile. (323) 650-0398
Attorneys for Plaintiffs Hilary Dezotell, Ken Hoden, and Bruce Wagoner
SUPERIOR COURT COUNTY OF RIVERSIDE
FILED SEP 0 4 2002
SUPERIOR COURT OF CALIFORNIA
COUNTY OF RIVERSIDE - HEMET BRANCH
HILARY DEZOTELL, KEN HODEN, and BRUCE WAGONER,
H. KEITH HENSON,
CASE NO. HECO09673
PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR A FINAL JUDGMENT, AN ORDER FOR INJUNCTIVE RELIEF, CIVIL PENALTIES AND FOR ATTORNEYS' FEES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF ELLIOT J. ABELSON AND JOSEPH W OJCIK
Civil Code ~ 52; 52.1 ] Request For Dismissal of Second and Third Causes of Action Filed Concurrently]
Time: 1:30pm Dept: H4
TO DEFENDANT, H. KEITH HENSON AND HIS COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on 10/7/02 at 1:30 p.m. in Department H4 of the above-entitled Court, Plaintiffs will and do hereby move this Court for a final judgment and an order: (1) for permanent injunctive relief to be entered in favor of Plaintiffs and against Defendant; (2) for statutory civil penalties in the amount of $75,000 ($25,000 per plaintiff); and (3) for reasonable attorneys' fees in the amount of $23,666.65.
This motion is made upon the grounds that Plaintiffs have prevailed on their First Cause of Action for Violation of Civil Rights under Civil Code §52.1; thus they are entitled to statutory remedies of injunctive relief and civil penalties. Moreover, as the prevailing plaintiffs on their Civil Code § 52 cause of action, Plaintiffs are entitled to an attorney fee award as a matter of law. Engel v. Worthington (1997) 60 Cal.App4th 628, 630, 70 Cal.Rptr.2d 526, 527.
This motion is based upon this Notice of Motion, the Points and Authorities set forth below, the attached Declarations of Elliot J. Abelson and Joseph Wojcik, the complete files and records in this action, and such other and further evidence that may properly come to the Court's attention at the hearing.
DATED: September 4, 2002 Respectfully submitted,
DAVIS & WOJCIK
JOSEPH M. WOJCIK
Attorney or Plaintiffs
Hillary Dezotell, Ken Hoden and
MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION/STATEMENT OF FACTS
On April 26, 2001, Defendant, H. Keith Henson was convicted under Penal Code § 422.6 for intimidating, threatening and oppressing Hilary Dezotell, Ken Hoden, and Bruce Wagoner (Plaintiffs herein), because of their religious beliefs. Thereafter, on July 30, 2001, Plaintiffs brought this action against Defendant: (1) for interfering with Plaintiffs' constitutional rights to the peaceable exercise and enjoyment of their religion in violation of their civil rights pursuant to California Civil Code § 52.1; (2) for negligent infliction of emotional distress; and (3) for intentional infliction of emotional distress, arising out of Defendant's criminal conduct.
On August 26, 2002, this Court granted Plaintiffs' motion for summary adjudication as to their first cause of action, finding that collateral estoppel applied to the issues raised by Plaintiffs' civil rights cause of action under Civil Code § 52.1, because these issues had actually been litigated and finally determined in Defendant's criminal matter. Thus, this Court determined that Plaintiffs were entitled to judgment, as a matter of law, on their first cause of action for Henson's violation of their civil rights.
Based on the grant of summary adjudication, Plaintiffs hereby seek the following remedies:
a. An injunction entered pursuant to Civil Code § 52.1 that prohibits Henson
from coming within 500 yards of Plaintiffs' work place, Golden Era Productions, and their respective residences; from traveling on the road that Golden Era Productions occupies, State Highway 79, between State Street and Sanderson Avenue; and from communicating with Plaintiffs;
b. Civil penalties of $25,000 awarded to each Plaintiff for being denied the
right to peaceably, and without criminal interference, enjoy their constitutional right to believe and practice their religion, as provided under Civil Code § 52(b)(2);
c. Reasonable attorneys fees in the amount of $23,666.65 as provided under Civil Code §§ 52(b)(3) and 52.1(h); and
d. Entry of a final judgment.
Plaintiffs are filing concurrently with this motion a Request for Dismissal without prejudice of their remaining causes of action.
A. Injunctive Relief Is Mandated In This Instance.
Civil Code § 52.1 (b) provides, in part:
Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with . . . may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to . . . injunctive relief ....
This Court has found, on summary judgment, that Defendant violated Plaintiffs' constitutional right to the peaceable practice and enjoyment of their religion and that Defendant has repeatedly interfered with these rights on an ongoing, continuing basis. Not only does § 52.1 provide for injunctive relief in such a situation, but the legislative history makes clear that the Legislature's intent in enacting § 52.1 was to ensure that this Court had the power to enjoin this very conduct, in whatever form of discrimination it appeared:
It is the intent of the Legislature to modify the prerequisite for injunctive relief under Section 52 of the Civil Code. By providing a civil remedy for the classes of persons specifically identified in Sections 5 , 51.7, and 52 of the Civil Co de, the Legislature does not intend to limit the availability of this remedy for any other form of discrimination which is prohibited by these sections. Section 3 of Stats.1991, c. 839 (A.B.1169).
Defendant has made it known that he intends to harass, annoy and oppress Plaintiffs. According to testimony in his criminal case, Defendant admitted to the police that he had disrupted the workings of the church; that he was waging "psychological warfare" against Scientologists; and that his sole purpose was to make them "paranoid"
and that he knew he was accomplishing this. (See, Exhibit A attached to the Declaration of Elliot J. Abelson ("Abelson Dec."), pp. 70:12 - 71:26, and incorporated herein by reference.)
Defendant has also said, "The only way I can get clear of this scientology [sic] mess is to `destroy them utterly."' (Exhibit B attached to Abelson Dec. and incorporated herein by reference.)
While having fled the country to avoid sentencing in the criminal case and currently living in Canada, Defendant continues to encourage others to harass Plaintiffs through postings on the Internet. For example, he recently posted ". . . if you want to taunt the happy fun cult, I can send you the instruction manual. Unfortunately, some of the best involve serious travel to Southern California, but excitement and the fame from picketing gold base is a better value than Disneyland." (Exhibit C attached to Abelson Dec. and incorporated herein by reference.) The phrase "gold base" refers to Golden Era Productions, where Defendant went to violate Plaintiffs' civil rights, leading to his conviction in April 2001. (Abelson Dec., 1 4.)
Defendant has a history of using others to act in concert with him to harass Plaintiffs. In July 9, 2000, Defendant was present at Golden Era Productions when a friend of his, David Rice, took the global positioning system ("GPS") coordinates of various buildings on the Golden Era property. (Exhibit D to Abelson Dec.) These coordinates were then posted on the Internet by Rice, which posting, along with Henson's threatening comments about it, caused Plaintiffs concern for their safety and the safety of their colleagues. (Exhibits E and F attached to Abelson Dec. and incorporated herein by reference.)
In 2001, during his criminal trial when Defendant was himself restrained from going to the Golden Era premises by a stay away order from Judge Wallerstein of the Riverside Superior Court, Defendant directed his wife to harass Plaintiffs at their work when he was unable to do so. (Exhibit G attached to Abelson Dec. and incorporated herein by reference.)
Defendant has continued to encourage others to violate the rights of the Plaintiffs and others at Golden Era as shown by postings dated January 3, 2002, January 6, 2002 and March 3, 2002. (Exhibits H through J attached to Abelson Dec. and incorporated herein by reference.)
Defendant's state of mind, his continuing not-so-subtle threats and statements, and his use of others acting as his agents to continue and maintain the harassment, gives rise to a continuing concern by Plaintiffs that their constitutional rights will continue to be interfered with. Thus, the request for injunctive relief is appropriate to ensure that such activities do not continue - relief to which they are entitled by law.
B. Plaintiffs Are Entitled To § 52(b1(21 Civil Penalties In The Amount Of $25,000
Pursuant to Civil Code § 52.1, any individual whose exercise or enjoyment of rights secured by the Constitution have been interfered with, or attempted to be interfered with, may institute and prosecute in his or her own name a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.
Civil Code § 52 provides for actual damages, attorney's fees, exemplary damages and a civil penalty of twenty-five thousand dollars ($25,000).'
Civil Code §§ 52.1 (b) and 52 need to be read in conjunction with one another as noted in Boccato v. City of Hermosa Beach (1994) 29 Cal.AppAth 1797, 1809, 35
' California Civil Code § 52 provides: "A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right . . . ." Additionally, § 51.7 provides: "(a) All persons within the jurisdiction of this state have the right to be free from any violence or intimidation by threat of violence, committed against their persons or property because of their . . . religion. . . ."
As there is no civil remedy in § 51.7 itself, any action brought under the Bane Act must be brought under other statutes, such as § 52.1.
Cal.Rptr.2d 282, 290. "The Bane Act consists of more than section 52.1 and it must be read in conjunction with the other statutory provisions of which that section is part."
Further, the legislative history for California Civil Code § 52 said that:
The September 10, 1991 Senate amendments to AB 1169, which replace and clarify the August 30, 1991 Senate amendments, provide that by adding civil remedy for the classes of persons specifically identified in Sections 51, 51.7, and 52, the Legislature does not intend to limit the availability of this remedy for any other forms of discrimination which is prohibited by these sections. The amendments being offered and adopted should not be construed as an attempt to limit the availability of remedies for the forms of discrimination prohibited by the noted sections.
It is well accepted that a state may impose reasonable penalties as a means of securing obedience to statutes validly enacted under the police power. "There is no inhibition upon the state to impose such penalties for disregard of its police power as will insure prompt obedience to the requirements of such regulations." Shalz v. Union School Dist. (1943) 58 Cal.App.2d 599, 606, 137 P.2d 762, 766. "Imposition of civil penalties has, increasingly in modern times, become a means by which legislatures implement statutory policy." Hale v. Morgan (Cal. 1978) 22 Ca1.3d 388, 398, 149 Cal.Rptr. 375, 381.
Thus, pursuant to the plain language of CC § 52.1 read in conjunction with the other Bane statutes, the civil penalties found in CC § 52 apply to the facts herein and Defendant should be required to pay a total of Seventy-Five Thousand Dollars ($75,000) civil penalties for his violation of the civil rights of three Plaintiffs.
C. Plaintiffs Are Entitled To Attorneys' Fees. As A Matter Of Law.
California Civil Code § 52(b)(3) provides, in part:
Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following: . . . (3) Attorney's fees as may be determined by the court.
"A prevailing plaintiff in a Civil Code section 52 action is entitled, as a matter of
law, to an attorney fee award." Engel v. Worthington (1997) 60 Ca1.AppAth 628, 630, 70 Cal.Rptr.2d 526, 527. Engel is dispositive of the attorneys fee issue here.
In Engel, plaintiff sued under Civil Code § 51 et seg. for Defendant's refusal to include a photograph of plaintiff and his male companion in a high school yearbook. Judgment was entered in favor of plaintiff and upon motion for attorney's fees. His request was denied on the grounds that an award of fees under § 52 was discretionary.
In reversing the trial court's order, the Engel court first noted that "all statutes must be construed in the light of the legislative purpose and design". Thus, with regard to an attorney fee award under § 52, the Engel court stated: The Legislature itself recognized the importance of an attorney fee award to a Civil Code section 52 plaintiff: [`T]he award to plaintiff of attorney's fees [is] essential to making effective the proposed addition of [section] 51.5 to the Civil Code. Enforcement of the public policy .. . . depends upon the provision of an effective remedy which can be quantified in economic terms. This has been roven historically by both our Federal and State anti-trust laws which provide for treble damages and attorney's fees to a successful plaintiff. The success of these statutes has to a great extent rested on civil remedies. Id. at 634 (emphasis in the original).
Thus, the Engel court concluded: "We conclude therefore, the Legislature intended an award to be mandatory. To hold otherwise would violate the very essence of the Act." Id. at 635.
The facts here are directly on point with Engel. As in Engel, Plaintiffs are the prevailing party under Civil Code § 52. And, as in Engel, Plaintiffs are entitled, as a matter of law, to attorneys' fees as provided therein.
In this connection, Plaintiffs have retained the law firm of Davis & Wojcik in this matter. Messrs Davis and Wojcik and their staff have expended 67.6 hours at their respective billing rates. With costs of $779.65 the total fees and costs incurred are $13,966.65. (See, attached declaration of Joseph M. Wojcik.) Elliot Abelson has expended 32.8 hours at his customary rate of $300 per hour, for a total of $9,840.00. (See, attached declaration of Elliot J. Abelson.) Accordingly, Plaintiffs are entitled to
attorneys' fees and costs in the amount of $23,666.65. D. Plaintiffs Are Entitled To a Final Judgment.
Plaintiffs are dismissing without prejudice the second and third causes of action in the Complaint herein concurrently with the filing of this motion. Thus, as the First Cause of Action has now been determined by this Court through Summary Adjudication, no issues other than those brought in this motion remain to be determined. Thus, Plaintiffs are entitled to obtain a final judgment herein.
Accordingly, based upon all of the foregoing, Plaintiffs request that their motion for a final judgment, injunctive relief, civil penalties of $75,000 and attorneys' fees in the
amount of $23,666.65 be granted.
DATED: September 4, 2002 Respectfully submitted,
DAVIS & WOJCIK
JOSEPH M. WOJCIK
Attorney for Plaintiff s
Hillary Dezotell, Ken Hoden and
HILARY DEZOTELL, KEN HODEN, and BRUCE WAGONER,
H. KEITH HENSON,
CASE NO. HECO09673
PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION OF FIRST CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE §52.1
On August 26, 2002, Plaintiffs' motion for summary adjudication as to Plaintiffs' First Cause of Action for violation of Civil Code §52.1 came on regularly for hearing before this Court in Department H-4, the Honorable Commissioner Barry A. Reimer presiding. Appearances by the parties were as follows: Joseph M. Wojcik of Davis & Wojcik and Elliot J. Abelson appearing on behalf of Plaintiffs Hilary Dezotell, Ken Hoden, and Bruce Wagoner, and Karen Novorr appearing on behalf of Defendant, H. Keith Henson.
After full consideration of the evidence, and the separate statements submitted by each party and the inferences reasonably deducible therefrom and the authorities
submitted by counsel, as well as oral argument by counsel, and being fully informed, the Court makes the following determinations for the reasons specified. I.
To establish collateral estoppel from a criminal conviction, a party must show:
"1. The prior conviction must have been for a serious offense so that the defendant
was motivated to fully litigate the charges;
2. There must have been a full and fair trial to prevent convictions of doubtful validity.from being used;
3. The issue on which the prior conviction is offered must of necessity have been decided at the criminal trial; and
4. The party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial."
McGowan v. City of San Diego (1989) 208 Ca1.App3d 890, 895, 256 Cal.Rtpr. 537, 539.
Here, the Plaintiffs have established through uncontroverted facts that the four points of collateral estoppel have been met.
The Court finds that the issues to be decided in Count 1 of Plaintiffs' complaint are identical to the issues in the Riverside Superior Court criminal jury trial of People v. Henson, HEM 14371, wherein Defendant was convicted on April 26, 2001 of violating Penal Code § 422.6. The legal elements of Penal Code § 422.6 and Civil Code § 52.1 appear to be identical (except that one is a public offense and the other is a civil wrong). The Defendant in this action was the same defendant who was found guilty in the criminal proceeding.
The judgment of the prior criminal proceeding is final upon the merits, as the Defendant's appeal has been dismissed.
The public offense was serious in that the Defendant was convicted of violating constitutional and civil rights and received a one-year jail sentence. Defendant was represented by counsel in the criminal matter and it was litigated fully before a jury. The Defendant had the opportunity to or did cross-examine all the witnesses in that criminal proceeding, three of whom are Plaintiffs herein. II.
The Defendant's factual contentions are not addressed as they are not directed to the accuracy of the criminal trial proceeding. Defendant's evidentiary objections as to the trial transcripts are overruled as the transcripts submitted by Plaintiffs were not offered for the truth, but for the proposition that the relevant issues were litigated fully to sustain the evidentiary burden of collateral estoppel. Further, the Court finds that Evidence Code § 1292 does not apply.
The Court has found no legal authority, nor was any presented by the Defendant, that a victim of a crime cannot assert collateral estoppel against the criminal defendant, nor does the Court find any public policy considerations preventing such an assertion against a criminal defendant.
Implicit in the jury verdict is a finding of truth as to all material elements to be proved.
Plaintiffs' cause of action against Defendant for interfering with Plaintiffs' constitutional protected rights of association and free exercise of religion stands adjudicated based on the verdict in the prior criminal proceeding, thus Plaintiffs are entitled to summary adjudication upon Count 1 of their complaint herein as there is no triable issue as to any material fact as to the First Cause of Action, for violation of Civil Code § 52.1.
IT IS HEREBY ORDERED:
That the motion for an order granting summary adjudication be, and hereby is, granted in favor of Plaintiffs Hillary Dezotell, Ken Hoden, and Bruce Wagoner and against Defendant, H. Keith Henson finding him liable with respect to the First Cause of Action of Plaintiffs' complaint for violation of Civil Code § 52.1 and that this adjudication shall be carried into any final judgment subsequently entered in this action. Dated: , 2002
Barry A. Reimer, Commissioner of the Riverside County Superior Court