Judge: Colin Leis, Case: 21STCV35522, Date: 2024-06-20 Tentative Ruling
Case Number: 21STCV35522 Hearing Date: June 20, 2024 Dept: 74
Butler v.
City of Beverly Hills
Defendant the City of Beverly Hills’ Motion for Summary
Judgment and/or Adjudication;
Defendant Justin Wilhelm’s Joinder to Same.
BACKGROUND
This action arises from a dispute
over a Beverly Hills police officer’s alleged assault of a civil rights
protester.
Plaintiff James Butler (“Plaintiff”)
commenced this action on September 27, 2021 by filing his Complaint against
defendants City of Beverly Hills (“the City”) and Does 1-50 for (1) Violation
of Civil Code § 52.1 (the “Bane Act”), (2) Battery, (3) False Imprisonment,
(4) Unlawful Arrest, and (5) Intentional Infliction of Emotional Distress.
On May 24, 2022, Plaintiff amended his Complaint to identify Doe 1 as Justin
Wilhelm (“Wilhelm”), the officer who arrested him on the date in question.
According to the Complaint, Butler
is a well-known civil rights activist and “the founder of the Black Future
Project, an organization whose identity is built on demands of defunding the
police and dismantling structural racism.” (Compl., ¶ 22.) His identity and his
mission as an activist were known to Beverly Hills Police Department (“BHPD”) before
its officers allegedly assaulted him. (Id., ¶ 23.)
Plaintiff organized protests in
Beverly Hills on June 12, 2020, June 26, 2020, and July 23, 2020, at the height
of the nationwide protests over the murder of George Floyd by Minneapolis
police. (Id., ¶¶ 20, 24-27.) At the June 26, 2020 protest, the
BHPD arrested Plaintiff and twenty-five (25) other protesters. (Id., ¶
28.) The arrests were widely publicized. (Id., ¶ 29.) The protesters
were later released. (See id., ¶ 33.)
At the July 23, 2020 protest, Plaintiff
alleges BHPD singled him out for assault and illegal arrest. (Id., ¶¶
38-43.) BHPD officers confronted Plaintiff and his companion protesters along
California State Route 2 in Beverly Hills. (DSMF 71-72 [undisputed].) BHPD
officers arrested several protesters during the confrontation. (DSMF 78
[undisputed].)
Officer Wilhelm and one of his colleagues,
Nicholas Dimento, arrested Plaintiff. (DSMF 82 [undisputed].) Plaintiff employed
a “deadweight” arrest-resistance tactic, in which a protestor makes his body
limp and refuses to physically cooperate with police, even when handcuffed.
(DSMF 84-85 [undisputed].) Officers Wilhelm and Dimento lifted Plaintiff off
the ground and carried him to a waiting police van for transportation to
Beverly Hills Jail. (DSMF 90-91 [undisputed].)
Plaintiff alleges that during the
process of handcuffing him and carrying him to the van, Wilhelm and Dimento
used excessive force and violence and caused him injury. (Compl., ¶¶ 38-42.)
Then, when Plaintiff was taken to jail, he alleges Wilhelm fabricated
accusations that Plaintiff had assaulted Wilhelm, ensuring that Plaintiff would
be charged with a felony and held overnight. (Ibid.)
Plaintiff was arrested at 10:36 p.m.
on July 23rd, 2020, booked at the jail at 11:59 p.m., and released the
following morning at approximately 11:06 a.m. after posting a $25,000.00 bond.
(See D.Exh. J.)
On September 27, 2021, Plaintiff
filed the instant lawsuit.
On November 2, 2023, the City moved
for summary judgment or adjudication on all Plaintiff’s claims. The City argues
Plaintiff is unable to raise triable issues as to the following:
1. As to Plaintiff’s first cause of action
for violation of the Bane Act: that (a) BHPD officers had probable cause to
arrest Plaintiff, and (b) no evidence shows any BHPD personnel possessed a specific
intent to violate Plaintiff’s rights;
2. As to Plaintiff’s second cause of
action for battery: officers did not use unreasonable or excessive force;
3. As to Plaintiff’s third and fourth causes
of action for unlawful arrest and false imprisonment:
(a) officers had probable cause to
arrest Plaintiff for (i) participating in unlawful assembly, (ii) failure to
disperse, and (iii) battery against a peace officer;
(b) Penal Code section 847(b)(1)
immunizes BHPD and its officers because they reasonably believed they had
probable cause to arrest Plaintiff; and
(c) Penal Code section 853.6
authorized Defendants to incarcerate Plaintiff in order to “book” him prior to
releasing him; and
4. As to Plaintiff’s fifth cause of action
for intentional infliction of emotional distress, BHPD officers did not act with
the requisite intent.
On March 25, 2024, Wilhelm filed a
“Notice of Joinder” to the City’s motion.
PROCEDURAL MATTERS
Joinder
The Court
rejects Wilhelm’s purported “Joinder” to the City’s motion. Although this is a
common maneuver by co-parties, the Court is aware of no authority permitting
such “joinder”, particular in the context of summary judgment or adjudication,
and Wilhelm has cited none.
Also, Wilhelm did not make a definitive
motion at all. His “joinder” purports to “reserve[] the right to join and/or
supplement the City’s argument with facts and concerns unique to Wilhelm”.
(Not. of J., 2:4-5.) This is improper and renders his “joinder” ineffective,
even if the Court were inclined to characterize it as a separate noticed motion.
A party may not file a motion – particularly a summary judgment motion – while
reserving the right to file more facts or argument later.
The joinder is rejected. The City of
Beverly Hills is the only moving party.
EVIDENTIARY OBJECTIONS
The court overrules the City’s Objection number 1.
LEGAL STANDARD
¿¿“
DISCUSSION
Defendant discusses the five causes
of action out of order: false imprisonment first, followed by battery, followed
by the Bane Act, followed by IIED. The Court organizes its ruling the same way.
A. Third
and Fourth Causes of Action for False Imprisonment and Unlawful Arrest
“The elements of a tortious claim of
false imprisonment are: (1) the nonconsensual, intentional confinement of a
person, (2) without lawful privilege, and (3) for an appreciable period of
time, however brief.” (Easton v. Sutter Coast Hospital (2000) 80
Cal.App.4th 485, 496.)
“ ‘ “[F]alse arrest” and “false
imprisonment” are not separate torts. False arrest is but one way of committing
a false imprisonment ... .’ ” (Asgari v. City of Los Angeles (1997) 15
Cal.4th 744, 753 fn. 3, quoting Collins v. City and County of San Francisco
(1975) 50 Cal.App.3d 671, 673.)
“[A p]olice officer who makes an
arrest without a warrant and without justification may be held civilly liable
for false arrest and imprisonment. [Citations.] A cause of action for false
imprisonment based on unlawful arrest is stated where it is alleged that there
was an arrest without process, followed by imprisonment and damages. Upon proof
of those facts the burden is on the defendants to prove justification for the
arrest.” (Dragna v. White (1955) 45 Cal.2d 469, 471.)
Here, the parties agree that
Plaintiff was intentionally confined against his will for some period of time.
The question is whether he was legally arrested and/or imprisoned.
1.
Plaintiff concedes BHPD has probable cause to arrest him as an initial matter.
The City
argues BHPD officers had probable cause when they arrested Plaintiff to believe
he had committed the misdemeanors of unlawful assembly, failure to disperse,
and willful disturbance of another by loud noise. (See Pen. Code, §§ 407-409
and § 415(2).) For purposes of this motion, Plaintiff does not dispute
that BHPD officers had probable cause to believe he committed these offenses.
Thus, he concedes they had probable cause to arrest him as an initial matter. Plaintiff’s
concession renders moot two of the City’s three grounds for summary
adjudication of Plaintiff’s third and fourth causes of action: (1) that the
City had probable case to arrest him, and (2) that the City is immune from
liability under Penal Code section 847(b)(1) based on that probable cause.
2. Defendant has not shown it was
entitled to detain Plaintiff overnight based on a misdemeanor charge.
As for the City’s third ground for
adjudication – that it was entitled to incarcerate Plaintiff in order to “book”
him – the City’s argument fails, and so Plaintiff’s causes of action survive
the City’s motion.
At least for his false arrest and
imprisonment claims, Plaintiff argues his cause of action is based on the length
of his detention after his arrest on July 23, 2020. (See Compl., ¶¶ 77-78 [Plaintiff
“taken to the Beverly Hills Jail and detained for a prolonged period”, “taken
to the Beverly Hills Jail as opposed to being cited and released”].) Plaintiff’s
claim depends primarily on whether BHPD arrested him for a misdemeanor or a
felony; the law regarding citation and release is different for the two sorts
of crime.
a. Plaintiff was booked on a
misdemeanor, not a felony.
Plaintiff states
several times that he was arrested on felony charges, or that Officer Wilhelm
inflated the charges and lied that Plaintiff committed felonious battery on a
peace officer. He contends that “[h]ad
he been arrested and booked for the misdemeanor crimes associated with his
protest activity, he would have been booked, cited and released. Instead, he
was held on bail on felony charges and not released until posting bond.” (Opp.,
14:25-28.) Plaintiff contends Wilhelm “wrote a false police report and booked
Butler on serious felony charges”. (Id., 6:5-6.)
“Under California common law the
jailer has long been held liable for false imprisonment if he knew or should
have known of the illegality of the imprisonment.” (Sullivan v. County of
Los Angeles (1974) 12 Cal.3d 710, 717-718.) If Plaintiff raises a triable
issue that Wilhelm or other BHPD personnel booked him for a felony when they
should have booked him for a misdemeanor, and thereby held him in jail for
longer than they should have, then Plaintiff raises a triable issue that
Wilhelm and/or the City are liable for false arrest and imprisonment.
The
evidence does not, however, support Plaintiff’s central premise – that his
charge was inflated to a felony. Arrest records show Plaintiff was not
arrested for, or charged with, a felony. The charge in question, battery
against a peace officer in the course of the officer’s duties, may be treated
as either a misdemeanor or a felony offense. (See § 243(b) [“punishable by a
fine not exceeding two thousand dollars ... , or by imprisonment in a county
jail not exceeding one year”].) And Plaintiff’s booking records show he was
arrested and booked on a misdemeanor charge. (See D.Exh. J (Booking Record), p.
1 [“Charge: 234(B) / PC / M [misdemeanor].], p. 6 [Charge 243(B) PC ... Level M
[Misdemeanor].)
b. A
triable issue exists whether BHPD imprisoned Plaintiff for longer than they
were entitled to under law.
The Penal
Code and BHPD policy both state that a misdemeanor offender should be arrested,
then cited and released – not held overnight in jail – absent special
circumstances. (See Pen. Code, § 853.6; D.Exh. H [BHPD Cite and Release
Policy].) An arrest takes place in three phases: booking, citation, and release
(with or without bond). The sequencing of these phases is different for
misdemeanors than for felonies.
Misdemeanor arrests and release procedures are
governed by Penal Code section 853.6:
“When a person is arrested for an
offense declared to be a misdemeanor, including a violation of a city or county
ordinance, and does not demand to be taken before a magistrate, that person
shall, instead of being taken before a magistrate, be released ... .”
(Pen. Code, § 853.6(a)(1).)
Plaintiff
contends that the City had probable cause to arrest him for a misdemeanor, and
it did so. But because Plaintiff was only arrested for a misdemeanor, Penal
Code section 853.6 required that he be booked, cited, and immediately released.
The City relies on an exception in section 853.6(a)(1) providing that even
though a person “shall ... be released” upon citation for a misdemeanor, “nothing
prevents an officer from first booking an arrestee pursuant to subdivision
(g)”. (Pen. Code, § 853.6(a)(1), italics added.) Subdivision (g) reads, in
relevant part: “The [arresting] officer may book the arrested person at the
scene or at the arresting agency prior to release ... .” (Id.,
subd. (g), italics added.) To “ ‘book’ signifies the recordation of an arrest
in official police records, and the taking by the police of fingerprints and
photographs of the person arrested, or any of these acts following an arrest.”
(Pen. Code, § 7(21).)
The City contends that subdivision
(g) permits the arresting agency to imprison an arrestee while transporting him
to the arresting agency, and this justified their holding Plaintiff in a cell
overnight. But the City does not bridge the gap between imprisonment for
transport and imprisonment for fourteen hours afterward. It merely asserts “the
statute [section 853.6(g)] ... explicitly recognizes that misdemeanor arrestees
may be transported to the arresting agency for booking prior to being cited and
released.” (Mot., 16:12-13.) It does not cite any further law construing or
applying section 853.6(g).
In any case, Defendant’s argument is
arguably irrelevant, because BHPD’s records show Plaintiff was booked
shortly after arriving at BHPD headquarters. His arrest and booking record
indicates he was arrested at 10:36 p.m. and booked at 11:59 p.m. on July 23rd.
(See D.Exh. J, p. 1.) Even if subdivision (g) permits transportation from the
site of arrest to an arresting agency prior to booking, it does not justify
holding him longer, even according to the City’s analysis. It also does not
justify waiting to book him once he reaches the facility – so even if the City had
waited overnight to book him, it is unclear how subdivision (g) would justify
the fourteen (14) hours Plaintiff spent at the police station.
The BHPD’s
failure to release Plaintiff after his booking and citation, and the
discrepancies in BHPD’s records about it, appear in Officer Fair’s report on
the incident, where he comments:
“It should also be noted that when
reviewing reports related to this incident I noticed Officer Wilhelm's report
advised Butler was cited and released from custody. I have verified this to not
be accurate. He was kept in custody and later posted bail for his release on
7-24-20 at 1106 hours.”
(D.Exh. K, BH 00029 [Narrative Report by Billy Fair].)
Plaintiff was booked for a
misdemeanor, not a felony. And it is undisputed that BHPD held him overnight
after booking him for the misdemeanor. The City has not shown why it should
have been exempt in Plaintiff’s case from Penal Code section 853.6, or why BHPD
did not follow its own Cite and Release policies. The City has not carried its
burden to show that it rightfully imprisoned Plaintiff overnight from July 23rd
to July 24th, 2020. The City’s motion fails as to the third and fourth causes
of action.
B. Second
Cause of Action for Battery
“Any peace
officer who has reasonable cause to believe that the person to be arrested has
committed a public offense may use objectively reasonable force to effect the
arrest, to prevent escape, or to overcome resistance. (Pen. Code, § 835a(b).)
Thus, a plaintiff suing a police officer for battery in the course of his
duties must prove the officer used unreasonable force under the circumstances.
(Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1272-1273.) The elements
of a claim for battery by a peace officer in the course of his duties are (1)
an intentional touch, (2) unreasonable force, (3) lack of consent, (4) harm,
and (5) causation. (See CACI No. 1305A (Feb. 2024).)
For
purposes of this motion, no one disputes that Officer Wilhelm touched Plaintiff
intentionally without his consent and thereby caused him harm. The question is
whether he used reasonable force under the circumstances. On this question, the
City has carried its prima facie burden, and Plaintiff has not raised a triable
issue. The City cites two pieces of evidence: Officer Wilhelm’s BWV of the
incident (D.Exh. B) and a cell-phone video taken by one of Plaintiff’s
companion protesters, Renee Tajima (D.Exh. O). The Court recognizes that
neither camera has a clear shot of every moment from when Plaintiff is
handcuffed until he enters a police bus. But what Defendant has produced is
enough to carry its burden. Neither Officer Wilhelm nor Mx. Tajima’s footage
shows Wilhelm or his colleague, Nicholas Dimento, using unreasonable force on
Plaintiff. The two videos together show Wilhelm and Dimento levelly carrying a
deadweighted protester, dropping him, and then picking him back up again. No
unreasonable force is evident. The footage comports with Officer Dimento’s
deposition testimony that plaintiff “went from just kind of being deadweight,
if you will, to flailing his arms and legs or wiggling to the point where it
made it much more difficult to maintain our carrying of him”, and the officers
“[s]et[] him down so that [they] could adjust.” (P.Exh. G, 14:12-17.)
Once
Defendant carries its prima facie burden, Plaintiff must produce substantial
responsive evidence sufficient to create a triable issue. (Sangster v.
Paekau (1998) 68 Cal.App.4th 151, 163-164.) Plaintiff has produced none.
The only evidence supporting his claim for unreasonable force is the officers’
admissions that they used force to carry him, which does not go to
reasonability, and Plaintiff’s own deposition testimony, which remains
unsupported. Plaintiff also implies Officer Dimento’s body camera footage has
been concealed during discovery (Opp., 10:24-25 [footage “lost, missing, or not
turned over”]), but there is no support for this insinuation, and Officer
Dimento explained during his deposition that his camera had fallen off his
uniform during the struggle. (See P.Exh. G, 6:14-16 [“In the process of
arresting Mr. Butler, my body camera fell off the holder and was recovered by
another officer.”].)
Defendant
is entitled to summary adjudication of Plaintiff’s second cause of action for
battery.
C. First
Cause of Action for Violation of the Bane Act
Civil Code, section 52.1 (the “Bane Act”) allows
an individual to sue for damages if a person or persons “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….”¿ (Civ. Code, §
52.1, subds. (a), (b).)¿¿“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 Cal.¿(2015)
242 Cal.App.4th 265, 294; Austin B. v. Escondido Union School Dist.
(2007) 149 Cal.App.4th 860, 883.)
The
elements of a Bane Act claim are: (1) defendant interfered with or attempted to
interfere with plaintiff’s constitutional or statutory right by threatening or
committing violent acts; (2) plaintiff reasonably believed that if he exercised
his constitutional right the defendant would commit violence against him or his
property; (3) defendant injured plaintiff or his property to prevent him from
exercising his constitutional right or retaliated against plaintiff for having
exercised his constitutional right; (4) plaintiff was harmed; and (5)
defendant’s conduct was a substantial factor in causing plaintiff’s harm. (Austin
B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at p.
882.)
As
with the false arrest and imprisonment claims, Plaintiff explicitly concedes
that they are not based on his initial arrest or Officer Wilhelm’s purported
battery. Rather, they are premised on his false arrest and imprisonment. Placed
in that context, Defendant has not carried its prima facie burden.
Defendant
asserts that Officer Wilhelm did not hold any unconstitutional animus to
Plaintiff when he arrested him. The evidence supports that contention. However,
Defendant does not present any evidence about what Officer Wilhelm did,
or didn’t do, when he booked Plaintiff once they arrived at Beverly
Hills Jail. As discussed above, there are discrepancies between the booking
records, BHPD policy, and the length of Plaintiff’s incarceration. The City
makes no effort to explain Plaintiff’s irregular length of detention.
Put
differently: Plaintiff asserts he was illegally jailed overnight because he was
a protester – that is, in retaliation for exercising his First Amendment rights.
The City does not show otherwise. Summary adjudication on Plaintiff’s first
cause of action is denied.
D. Intentional
Infliction of Emotional Distress
On
June 10, 2024, the parties filed a stipulation and proposed order, which the
Court has signed, stating in relevant part:
“Plaintiff
is making no claim for mental and emotional distress over and above that
usually associated with the physical injuries claimed, otherwise referred to
a[s] ‘garden variety’ emotional distress.”
The
Court regards this as a stipulation that Plaintiff will dismiss his fifth cause
of action or has conceded that he did not suffer the severe emotional distress
contemplated by his IIED claim. Either way, the City is entitled to summary
adjudication of this cause of action.
CONCLUSION
Based on the foregoing, the court GRANTS
the motion as to Plaintiff’s second and fifth causes of action.
The court DENIES the motion as to
Plaintiff’s first, third, and fourth causes of action.
Defendant shall give notice.