COUNTY INMATE TELEPHONE SERVICE CASES.
B291341
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Filed 4/28/20
CERTIFIED FOR PUBLICATION
JCCP No. 4897 (Los Angeles County Super. Ct. case No. BC635599)
Carolyn B. Kuhl, Judge.
APPEAL from a judgment of the Superior Court for the County of Los Angeles. Carolyn B. Kuhl, Judge. Affirmed.
Jonathan M. Coupal, Timothy A. Bittle and Laura E. Dougherty for Howard Jarvis Taxpayers Association as Amicus Curiae on behalf of Plaintiffs and Appellants.
Schonbrun Seplow Harris & Hoffman and Catherine Sweetser for Human Rights Defense Center, Public Counsel, American Civil Liberties Union of Southern California, Worth Rises, Prison Law Office, and Impact Fund as Amici Curiae on behalf of Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith, Raul L. Martinez and Ryan D. Harvey for Defendants and Respondents Counties of Los Angeles, Orange, San Bernardino, Ventura, Alameda and Santa Clara.
James R. Williams, County Counsel (Santa Clara), and Michael Leon Guerrero, Deputy County Counsel, for Defendant and Respondent County of Santa Clara.
Arias & Lockwood, Christopher D. Lockwood; Lewis Brisbois Bisgaard & Smith, John M. Porter and Arthur K. Cunningham for Defendant and Respondent County of Riverside.
Sharon L. Anderson, County Counsel (Contra Costa) and D. Cameron Baker, Deputy County Counsel, for Defendant and Respondent County of Contra Costa.
Thomas E. Montgomery, County Counsel (San Diego), Joshua Heinlein and Jeffrey P. Michalowski, Senior Deputy County Counsel, for California State Association of Counties and League of California Cities as Amici Curiae on behalf of Defendants and Respondents.
SUMMARY
In this coordinated proceeding, inmates in county jails in nine California counties challenge the exorbitant commissions paid by telecommunications companies to the nine counties under contracts giving the telecommunications companies the exclusive right to provide telephone service for the inmates. The telecommunications companies pass on the cost of the commissions to the inmates and their families in the fees charged to use the inmate calling system, the only telephone system available to them. The phone rates would be significantly lower if they did not include charges to recoup the commissions paid to the counties. The rates are not related to the cost of the services provided.
The inmates say these fees are unlawful taxes under Proposition 26, which requires voter approval of “any levy, charge or exaction of any kind imposed by a local government” unless limited to the reasonable cost or value. (
The trial court sustained a demurrer by the counties without leave to amend, ruling that plaintiffs do not have standing to contend the commissions are an unconstitutional tax, and that the other causes of action fail as well.
We agree with the trial court on all points and affirm the judgment.
Plaintiffs are inmates in jail facilities in nine counties and their families. The nine counties are defendants. Each defendant county has contracted with a telecommunications company (these companies are not parties), giving the company the exclusive right to establish an inmate calling system in the respective county jails. The inmates must use that system, and relatives who wish to speak with them must establish a prepaid account with the telecommunications company. According to plaintiffs, their families “are charged unreasonable, unjust and exorbitant rates” in order to maintain contact with county inmates.
In exchange for the exclusive right to provide telephone service to inmates, the telecommunications company pays the defendants a guaranteed fee against an identified percentage of the inmate calling system charges. The rates charged to inmates are far greater than those paid for ordinary telephone service. The defendants’ share of the revenue collected from inmate calls is referred to as a “site commission,” and in all cases is more than 50 percent of the revenue from inmate calls. Under a Los Angeles County agreement with its service provider, for example, the county is guaranteed the greater of $15 million annually or 67.5 percent of the revenues for specified charges described in the contract.
Plaintiffs filed this putative class action lawsuit “to put an end to this unconscionable practice by California counties.” Plaintiffs allege the telecommunications companies make a substantial profit even after payment of the commissions; that without the commissions, the charges would be substantially lower; and the commissions are not based on the actual cost or reasonable value of the inmate calling service. Plaintiffs allege the full amount of the charges due to the counties is incurred by the customers of the telecommunications company, and not by the telecommunications company itself.
Plaintiffs acknowledge defendants have complied with
Plaintiffs say the jail population is disproportionately composed of African-Americans and Latinos, as well as persons with mental illnesses or substance abuse problems, compared to the overall population of the respective counties. The telephone charges that provide the source of the commissions received by defendants, and consequently the commissions, have a disparate impact on African-Americans and Latinos, in violation of
Further, plaintiffs allege defendants have violated the Tom Bane Civil Rights Act (
Defendants demurred to the complaint. As noted at the outset, the trial court sustained the demurrer without leave to amend.3 The court entered judgment on June 6, 2018, and plaintiffs filed a timely notice of appeal.4
DISCUSSION
A demurrer tests the legal sufficiency of the complaint. We review the complaint de novo to determine whether it alleges facts sufficient to state a
1. Proposition 26 and the Standing Issue
The trial court ruled, and we agree, that plaintiffs do not have standing to contend the commissions are an unconstitutional tax.
All taxes imposed by any local government are subject to voter approval. (
The local government has the burden of proving, among other things, “that a levy, charge, or other exaction is not a tax . . . .” (
The general rule is that a person may not sue to recover excess taxes paid by someone else, “who pays the tax by design or mistake.” (Grotenhuis v. County of Santa Barbara (2010) 182 Cal.App.4th 1158, 1165; id. at pp. 1164-1165 [the plaintiff could not sue to recover excess property taxes paid by a corporation of which he was the sole owner and from which he leased the property;
First, plaintiffs say they “actually paid the illegal tax, not the providers,” so “the ‘general rule’ requires that plaintiffs have standing to obtain a refund.” Plaintiffs paid nothing to the counties, and they had no legal responsibility to pay anything to the counties. Simply asserting that they effectively or indirectly “paid the illegal tax” does not make it true. Plaintiffs may have paid exorbitant charges to the telephone provider, but they did not make any payment to the county and they had no legal obligation to do so. Plaintiffs ask us in effect to find that a customer, who pays higher prices because of a tax on a vendor who raises prices in order to recover the amount of the tax from the customer, has standing to seek a refund. No legal authority supports that position.6
Second, plaintiffs contend they have standing to seek a refund of fees prohibited by Proposition 26 because their litigation “effectuates the purpose of the statute and because they have a beneficial interest in the outcome.” They cite the principle that “[s]tanding rules for statutes must be viewed in light of the intent of the Legislature and the purpose of the enactment.” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1024.) They say that if we apply the rule that only the providers who directly pay money to the defendants have standing, we “would both frustrate the very reason the voters passed Proposition 26 and deprive the only aggrieved parties from seeking redress.”
We are not persuaded. We agree, of course, that Proposition 26 “was an effort to close perceived loopholes in Propositions 13 and 218.” (Schmeer v. County of Los Angeles (2013) 213 Cal.App.4th 1310, 1322; id. at pp. 1313-1314 [concluding a paper carryout bag charge was not a tax under Proposition 26 “because the charge is payable to and retained by the retail store and is not remitted to the county“].) Schmeer quotes in full the findings and declaration of purpose of Proposition 26 as recited in its ballot materials. (Schmeer, at pp. 1322-1323.) The findings clearly express the voters’ concern
But nothing in Proposition 26, or anything plaintiffs have cited, suggests that taxes under Proposition 26 are to be treated differently from taxes under any other statute or constitutional provision when a refund of those taxes is sought. Plaintiffs point us to no cases under this or any other proposition where the plaintiff challenging the charge is not a person who paid the tax to the taxing authority or who was legally obligated to pay it. The voters’ intent to prevent circumvention of voting requirements on tax increases tells us nothing of any intent to change the standard principles governing lawsuits challenging those taxes.
The cases plaintiffs cite to support a contrary conclusion do not do so. We turn to those cases.
Plaintiffs cite Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248 (Jacks) for the proposition that we should liberally construe Proposition 26 “to effectuate its purposes of limiting local government revenue and enhancing taxpayer consent.” (Jacks, at p. 267, quoting Prop. 218.) But Jacks was not referring to standing, and there was no issue of standing in the case. The court stated that the proposition at issue in that case, Proposition 218, should be liberally construed when “resolving [the] issue” of “[w]hether a charge is a tax or a fee.” (Jacks, at p. 267.) We do not disagree, but that has nothing to do with standing to seek a refund. The same is true of the additional authority the parties discussed at oral argument—Zolly v. City of Oakland (2020) 47 Cal.App.5th 73. The plaintiffs in Zolly sought declaratory and injunctive relief, and there was no issue of standing in the case.
Plaintiffs cite Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241 for the proposition that determining standing requires “ascertain[ing] and effectuat[ing] the law‘s intended purpose.” (Id. at p. 1246.) But the court was construing a statute on standing—
Plaintiffs contend taxpayers have standing to sue the taxing entity “if they are the ones who pay the tax or have a stake in the outcome, unless a specific statutory refund procedure is otherwise mandated by statute.” For this assertion, they cite Ardon v. City of Los Angeles (2011) 52 Cal.4th 241. In Ardon, the court held that “[c]lass claims for tax refunds against a local governmental entity are permissible under [Government Code] section 910 in the absence of a specific tax refund procedure set forth in an applicable governing claims statute.” (Id. at p. 253.) (
Ardon does not help plaintiffs either. The question was whether a class claim for refund of a telephone users tax was permissible, or whether each member of the class had to file a government claim with the city before a class action could proceed. (Ardon, supra, 52 Cal.4th at pp. 245, 246, 250.) In Ardon, the plaintiff taxpayers were legally obligated to pay the tax. That is not the case here.
Next, plaintiffs cite TracFone Wireless, Inc. v. County of Los Angeles (2008) 163 Cal.App.4th 1359 (TracFone). There, the plaintiff was a long-distance service provider that sold prepaid telephone calling cards to retailers who resold them to the ultimate consumers. The plaintiff paid the county‘s user tax, amounting to 5 percent of the value of calls made with the cards in the county, from its own funds. The plaintiff did not collect the tax from the consumers who were responsible for its payment, because it had no point of contact with the ultimate consumer and was unable to do so. For reasons unnecessary to recite, it turned out that cards of the type the plaintiff sold were tax exempt, so the plaintiff sought a refund. (Id. at pp. 1361-1362.) The trial court found that although the plaintiff was required to collect the taxes, it was not a “taxpayer” and thus lacked standing to seek a refund. (Id. at p. 1364.) The appellate court rejected as “outdated” the notion that a party has no standing to challenge a tax unless it is the denominated “taxpayer” under the statutory scheme imposing the tax. (Ibid.) The court held that the plaintiff had standing to seek a refund of taxes paid from its own funds. (Id. at p. 1366.)
Plaintiffs liken themselves to the plaintiff in TracFone, saying they “are the ones who actually pay the money ‘from [their] own funds.’ ” But they are not like the TracFone plaintiff, who was required by the user tax scheme to collect the taxes, and who paid the taxes from its own funds directly to the
Plaintiffs also cite Delta Air Lines, Inc. v. State Board of Equalization (1989) 214 Cal.App.3d 518, where the court found Delta had standing to seek a refund of fuel taxes it paid to the Board. Explaining the factual background would unduly lengthen this opinion. Suffice it to say that the fuel vendor was the taxpayer; some parts of Delta‘s fuel purchases were tax exempt, and the vendor paid taxes pursuant to Delta‘s estimates of the taxable portion of its fuel purchase; a regulatory change occurred requiring actual rather than estimated fuel consumption computations; the Board audited Delta and assessed additional taxes. Delta paid the assessment, but sought a redetermination for a nine-month period during which the auditors assessed Delta for underpayments but refused to allow an offset for overpayments. (Id. at pp. 520-524.)
The court rejected the Board‘s contention that Delta had no standing to sue for a refund under the circumstances presented, pointing out that the law “regards common carriers such as Delta as retailers as well as purchasers, for the purpose of computing the parameters of [its] exemption,” and the Board audits Delta to ensure the exemption is used properly. (Delta, supra, 214 Cal.App.3d at p. 528.) In a dispute over the audit procedure, “it would be irrational to hold that Delta has no standing to contest a determination of substantial funds due for which Delta was legally responsible. To hold otherwise might permit unjust enrichment of the Board. Delta is clearly the real party in interest here, has paid the disputed tax due (which concededly could not have been collected from Delta‘s vendors), and has standing to pursue the action for refund.” (Ibid.) Again, plaintiffs’ position with respect to the disputed charges is in no way comparable to Delta‘s position. Plaintiffs have not paid a tax directly to a taxing authority.
Next, plaintiffs tell us that cases involving standing to seek a refund of sales taxes are inapplicable. This, they say, is because the sales tax cases are based on a comprehensive and complex statutory scheme that defines the taxpayer as the retailer, and provides an administrative scheme for seeking a refund, unlike challenges under Proposition 26. They refer us to Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, where the court held that consumers could not maintain a class action against a retailer (disputing the taxability of purchases of hot coffee “to go“) under the unfair competition law and the Consumer Legal Remedies Act. It seems to us that, to the extent Loeffler is pertinent, it supports our determination that plaintiffs lack standing.
Plaintiffs assert Loeffler “make[s] clear” that where an improper tax is collected by an intermediary, “an adequate remedy must be provided to ensure the aggrieved customer/taxpayer has a means to obtain a refund.” That is not the import of Loeffler. Plaintiffs are referring to Loeffler‘s description of another case—Javor v. State Board of Equalization (1974) 12 Cal.3d 790 (Javor)—where the Board of Equalization had already instructed retailers they were entitled to a refund of mistakenly paid excess sales tax, provided they returned the refund to the customer. (Loeffler, supra, 58 Cal.4th at p. 1115.) Under the “unique circumstances” in Javor (Javor, at p. 802), where the retailer had no particular incentive to request the refund (id. at p. 801), and the Board was “very likely to become enriched at the expense of the customer” (id. at p. 802), Javor stated that “we . . . must fashion an appropriate remedy to effect the customers’ right to their refund which is consonant with existing statutory procedures” (id. at p. 800).
The remedy in Javor was not a suit against the taxing authority for a refund. Indeed, the Javor court indicated it would not be consonant with the tax code or judicial precedent “to fashion a remedy that would give consumers a cause of action against the Board for the excess amounts the retailer had paid in taxes.” (Loeffler, supra, 58 Cal.4th at p. 1114, citing Javor, supra, 12 Cal.3d at p. 800.) As Loeffler puts it, “we have permitted consumer intervention into the sales tax scheme in limited circumstances and only by means of a judicial proceeding to compel the retailer/taxpayer to seek a refund from the Board.” (Loeffler, at p. 1101, citing Javor.)7
Finally, plaintiffs contend that if they lack standing, they have no meaningful opportunity for review in violation of due process. They cite TracFone, supra, 163 Cal.App.4th at pages 1365-1366, and McKesson Corp. v. Florida Alcohol & Tobacco Div. (1990) 496 U.S. 18. This due process claim (which was made below only by way of a two-sentence footnote) is again premised on the assertion that “they actually paid the tax.” It ignores the fact that plaintiffs did not pay anything to the taxing authority and had no legal responsibility to do so. As TracFone states, it is because “California requires payment of a tax prior to challenging it” that the right to due process requires some procedure for meaningful review. (TracFone, at pp. 1365-1366.) In TracFone, the plaintiff was required to collect the taxes and paid them from its own funds to the taxing authority. That is not the case here.
McKesson does not help plaintiffs either. In that case, the plaintiff had paid excise taxes to the state of Florida that had been found to be unconstitutional. Under those circumstances, due process required the state “to afford taxpayers a meaningful opportunity to secure postpayment relief for taxes already paid pursuant to a tax scheme ultimately found unconstitutional.” (McKesson, supra, 496 U.S. at p. 22; cf. McClain, supra, 6 Cal.5th at p. 961 [“we do not agree with plaintiffs that the unavailability of a judicially created refund remedy in this case violates due process of law“].)
Because we conclude the trial court correctly found plaintiffs have no standing to bring a claim under Proposition 26, we refrain from addressing the merits of their claim that the telephone charges are a tax in violation of Proposition 26.
2. Government Code Section 11135
Plaintiffs allege inmates and their families were disproportionately African-American and Latino, compared to the overall population of the respective county defendants, and also that they disproportionately suffer from mental illness and drug addiction. Each defendant receives “a significant amount of money from the State of California” that “goes to fund various activities of the Defendant Counties, including their county jails and the jails’ inmate calling systems.” Plaintiffs allege there was no justification for the imposition of the inmate calling system charges, and “in any event, they can be replaced by an equally effective but less discriminatory alternative (e.g., a reasonable fee, or a general tax or fee) not aimed specifically at the disproportionately African-American and Latino population that currently pays the [inmate calling system] charges out of which the Defendant Counties receive the lion‘s share.”
” ‘The basis for a successful disparate impact claim involves a comparison between two groups—those affected and those unaffected by the facially neutral policy.’ ” (Darensburg v. Metropolitan Transportation Commn. (9th Cir. 2011) 636 F.3d 511, 519-520 (Darensburg).) “[W]e must analyze the impact of the plan on minorities in the population base ‘affected . . . by the facially neutral policy.’ ” (Id. at p. 520.) ” ‘[T]he appropriate inquiry is into the impact on the total group to which a policy or decision applies.’ ” (Ibid., quoting Hallmark Developers, Inc. v. Fulton County (11th Cir. 2006) 466 F.3d 1276, 1286.)
The “total group” to whom defendants provide telephone service by means of their contracts with providers is the inmate population; defendants do not provide telephone service to any other group. Consequently, the only appropriate inquiry is an analysis of the impact on minorities “in the population base ‘affected’ ” (Darensburg, supra, 636 F.3d at p. 520), and that is the inmate population. There is no other relevant group. And African-American and Latino inmates are treated exactly the same as any other inmates.
Plaintiffs insist that the comparator group “is the general population, which accesses telephone usage without having to pay an illegal tax.” The general population is the comparator group, they say, “because the cost of the inmate telephone calls, and the exorbitant commissions, is borne by the inmates’ non-custodial family and friends, who otherwise enjoy normal phone charges.” We find this argument difficult to comprehend, but in any event plaintiffs do not support it with any legal authority. No matter who bears the cost, inmates or their families and friends, it remains the case that the complaint does not allege defendant counties provide telephone service to the general population, and consequently the general population of telephone users cannot be the appropriate “comparator group.”
Moreover, as the trial court pointed out, the Legislature established a basis for treating inmate families differently from other taxpayers in
3. The Bane Act
Under the Bane Act, if a person interferes “by threat, intimidation, or coercion,” or attempts to do so, with any individual‘s exercise or enjoyment of rights secured by the Constitutions or laws of the United States or California, the individual may bring a civil action for damages and other relief. (
Plaintiffs contend defendants violated their families’ rights under the Bane Act “by ‘interfer[ing] by . . . coercion’ with their rights under Proposition 26.”9 They say they are “forced into the coercive choice of using the telephone despite unlawful, exorbitant and discriminatory charges or foregoing telephonic communications.”10
We find no support in any authorities under the Bane Act for the proposition that a choice between paying an exorbitant telephone charge or foregoing telephone communication constitutes the “threat, intimidation, or coercion” required to establish a Bane Act violation. This is so under either of the analyses courts have applied, in the context of Fourth Amendment violations, to determine whether coercion has been shown, as discussed below. And, entirely aside from those analyses, we do not think the imposition of a tax, however exorbitant, may constitute coercion within the meaning of the Bane Act.
a. Shoyoye
The first theory of coercion is that a violation of the Bane Act requires a showing of coercion independent from the coercion inherent in the constitutional violation itself. (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 (Shoyoye).) Shoyoye was a wrongful detention case (a prisoner‘s overdetention based on computer error). Shoyoye concluded the Bane Act was intended to address
Plaintiffs have not alleged coercion other than the required payment of the telephone charges. Other than payment of the exorbitant charges, there is no tax and no coercion. Under the Shoyoye analysis, plaintiffs’ claim fails.
b. Cornell
The second analysis appears in Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766 (Cornell). Cornell held that, “where an unlawful arrest is properly pleaded and proved, the ‘threat, intimidation or coercion’ element of section 52.1 . . . requires a specific intent to violate protected rights.” (Id. at p. 799; ibid. [“we do not accept the premise that Shoyoye applies in unlawful arrest cases“].) The plaintiff showed subjective spite; the arresting officers were unconcerned from the outset whether there was legal cause to detain or arrest the plaintiff, and “when they realized their error, they doubled-down on it, knowing they were inflicting grievous injury on their prisoner.” (Id. at p. 804.)
The specific intent test requires a legal determination whether the right at issue is ” ’ “clearly delineated and plainly applicable under the circumstances of the case,” ’ ” and a factual determination whether the defendant committed the act in question ” ’ “with the particular purpose of depriving the citizen victim of his enjoyment of the interests protected by that . . . right.” ’ ” (Cornell, supra, 17 Cal.App.5th at p. 803.) Cornell found “[l]egally, . . . nothing vague or novel” about the plaintiff‘s claim of the right to be free from arrest without probable cause “under the circumstances of this case.” (Ibid.)
Plaintiffs’ allegations of coercion do not meet Cornell‘s specific intent test. Plaintiffs do not claim a clearly delineated and plainly applicable right in this case, and therefore they cannot show defendants acted with the particular purpose of depriving plaintiffs of any such right.
Plaintiffs say their right under Proposition 26 is clearly delineated and plainly applicable, because “the commissions unquestionably exceed reasonable cost.” That does not establish the existence of an unlawful tax under Proposition 26, as the parties’ respective arguments on the merits of that issue clearly show. And without a clearly delineated and plainly applicable right
There is no legal authority on the question whether a site commission, paid under contracts between telephone providers and defendant counties, is a tax, and we do not decide that question either. Plaintiffs’ alleged right to a refund of inmate telephone service charges is neither “clearly delineated” nor “plainly applicable.” Consequently, defendants cannot have had the requisite specific intent to violate plaintiffs’ Proposition 26 rights when they entered into the contracts with the telephone providers. Plaintiffs’ allegation that the facts establish an illegal tax and that defendants “acted with the purpose of charging excessive fees far beyond reasonable cost” is not enough under Cornell. (See also Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 395 (Julian) [conclusory allegations of coercive interference with constitutional rights ” ‘are inadequate to state a cause of action for a violation of section 52.1’ “].)
c. A final note
Plaintiffs cannot establish coercion under either Shoyoye or Cornell. But even apart from those analyses, we find ourselves in agreement with the trial court‘s alternative ground of decision—that the allegations of the complaint in any event “do not establish coercion of the sort contemplated by [the Bane Act].”
We construe statutory language in context, not in the abstract. “The Legislature enacted section 52.1 to stem a tide of hate crimes. [Citation.] The statutory language fulfills that purpose by providing remedies for certain misconduct that interferes with” any rights secured by federal or California law. (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338 (Jones).) “[A]s long as interference or attempted interference with [legal rights] is accompanied by threats, intimidation, or coercion, section 52.1 provides remedies for that misconduct.” (Ibid.)
The Legislature‘s purpose suggests to us that the coercive nature of a tax—however exorbitant or unfair that tax may be—was not what the Legislature had in mind when it forbade interference with legal rights by “threat, intimidation, or coercion.” Plaintiffs have cited no case where economic or monetary pressures alone have been found to constitute coercion under the Bane Act.
Plaintiffs quote a dictionary definition of coercion (“to compel to an act or choice by force, threat, or other pressure“), citing a decision construing fair housing statutes. (Walker v. City of Lakewood (9th Cir. 2001) 272 F.3d 1114, 1129.) They also cite Koontz v. St. Johns River Water Management Dist. (2013) 570 U.S. 595, 604-605 (discussing coercion under the unconstitutional conditions doctrine). These cases are simply inapt to the issue at hand. The question here is the meaning of coercion under a statute enacted with hate crimes in mind. (Jones, supra, 17 Cal.4th at p. 338; see also Julian, supra, 11 Cal.App.5th at p. 395 [” ‘[T]he statute was intended to address only egregious interferences with constitutional rights, not just any tort. The act of interference with a constitutional right must itself be deliberate or spiteful.’ “]; Cornell, supra, 17 Cal.App.5th at p. 800 [coercion element “serves as an aggravator justifying the conclusion that the underlying violation of rights is sufficiently egregious to warrant enhanced statutory remedies“]; ibid. [describing the required “threat, intimidation or coercion” as “this element of fear-inducing conduct“].) Requiring payment of an allegedly illegal tax does not fall within the universe of egregious interference with constitutional rights as contemplated by the Bane Act and described in the cases.
At the end of their brief, plaintiffs tell us that if their pleading of coercion was deficient, they were entitled to “an opportunity to expand on each of their Proposition 26, Government Code sections 50030 and 11135 claims and why they met the requirements of [the Bane Act].” But they do not explain what more they could allege that would bring their claims within any of those provisions.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
GRIMES, J.*
WE CONCUR:
ROTHSCHILD, P. J.
BENDIX, J.
* Justice of the Court of Appeal, Second Appellate District, Division Eight, assigned by the Chief Justice pursuant to