Judge: Gail Killefer, Case: 21STCV17381, Date: 2024-01-08 Tentative Ruling
Case Number: 21STCV17381 Hearing Date: February 5, 2024 Dept: 37
HEARING DATE: Monday, February 5, 2024
CASE NUMBER: 21STCV17381
CASE NAME: Shana Anglin, et al. v. Patrice Lorrain Burton, et al
MOVING PARTY: Defendant Deputy Jose Hurtado
OPPOSING PARTY: Plaintiffs Shana
Anglin, Christopher Dean Ebersole, and minors Elijiah Makar and Rozlynn Makar
through their guardian ad litem Shana Anglin
TRIAL DATE: 12 March 2024
PROOF
OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment/Adjudication
OPPOSITION: 5 December 2023
REPLY: 22 December
2023
TENTATIVE:
Defendant Hurtado’s motion for summary
judgment, or in the alternative, for summary adjudication is denied. Defendant
to give notice.
Background
On May 7, 2021, Shana
Anglin, Christopher Dean Ebersole, and minors Elijiah Makar and Rozlynn Makar through
their guardian ad litem Shana Anglin (collectively “Plaintiffs”) filed a
Complaint against Patrice Loraine Burton, Alex Villanueva in his official
capacity as Sheriff of Los Angeles County, and Does 1 to 20. Doe 1 was named as
Sheriff’s Deputy Justin Meng, Doe 2 was named as Sheriff’s Deputy Derek
Clotworthy, and Doe 3 was named as Sheriff’s Deputy Jose Hurtado.
The Complaint alleges
five causes of action for:
(1) Violation of the Tom Bane Civil
Rights Act, against Defendant Burton and Does 7 and 8.
(2) Violation of the Civil Rights Act
of 1871 against Defendant Burton and Does 1 through 5, 11 through 20.
(3) Violation of the Civil Rights Act
of 1871 (42 U.S.C § 1983) against Defendant Alex Villanueva in his official
capacity and Does 9 and 10.
(4) Violation of the Civil Rights Act
of 1871 (42 U.S.C § 1983) (Monell liability) against Defendant Burton
and Does 6 through 8.
(5) Violation of Civ. Code § 789.3
against Defendant Burton and Does 6 through 8.
Plaintiffs allege
that they resided in a 4-unit apartment complex (the “Complex”) located in
Carson, CA that was owned by Patrice Loraine Burton (“Burton”). (Compl. ¶ 11.) Plaintiffs were allowed to live in a
unit in the complex in exchange for taking care of the complex, but Burton
changed her mind and decided to evict the Plaintiffs illegally, causing
Plaintiffs to become homeless. (Compl. ¶¶ 11, 17.) The Complaint alleges that
when Burton changed the locks on the Complex and did not allow Plaintiffs to
enter the Complex, Los Angeles Sheriff’s Deputies were called but they refused
to assist Plaintiffs. (Compl. ¶¶ 14, 15.)
On April 3, 2023, Sheriff’s
Deputies Hurtado, Meng, and Clotworthy and the County of Los Angeles filed a
Cross-Complaint against Burton for (1) Apportionment of Fault, (2)
Indemnification, and (3) Declaratory Relief.
On September 29,
2023, Defendant Deputy Jose Hurtado (“Hurtado”) filed a motion for summary judgment
or, in the alternative, for summary adjudication. Plaintiffs oppose the Motion.
The matter is now before the court.
motion for summary judgment or
summary ADJUDICATION
I. Legal
Standard
The purpose of a motion for summary judgment or summary
adjudication “is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.”¿ (Aguilar v. Atl. Richfield Co.
(2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision
(c), requires the trial judge to grant summary judgment if all the evidence
submitted, and ‘all inferences reasonably deducible from the evidence’ and
uncontradicted by other inferences or evidence, show that there is no triable
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) Summary adjudication may be granted as to one or more
causes of action within an action, or one or more claims for damages. (CCP §
437c(f).)¿¿¿¿¿¿¿¿¿
¿¿¿¿
A defendant moving for summary judgment bears two burdens:
(1) the burden of production – presenting admissible evidence, through material
facts, sufficient to satisfy a directed verdict standard; and (2) the burden of
persuasion – the material facts presented must persuade the court that the
plaintiff cannot establish one or more elements of a cause of action, or a
complete defense vitiates the cause of action. (CCP § 437c(p)(2);¿Aguilar,¿supra,
25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that
the claim “cannot be established” because of the lack of evidence on some
essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31
Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts
to the plaintiff to show that a “triable issue of one or more material facts
exists as to that cause of action or defense thereto.”¿(Ibid.)¿¿¿¿¿¿¿¿
¿¿¿¿
“On ruling on a motion for summary judgment, the court is to
‘liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal
v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) On a summary
judgment motion, the court must therefore consider what inferences favoring the
opposing party a factfinder could reasonably draw from the evidence. While
viewing the evidence in this manner, the court must bear in mind that its
primary function is to identify issues rather than to determine issues.
[Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75
Cal.App.4th¿832, 839.)¿¿¿¿¿
¿¿¿¿
Defeating summary judgment requires only a single disputed
material fact. (See CCP § 437c(c) [a motion for summary judgment “shall be
granted if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law”] [italics added].) Thus, any disputed material fact means the
court must deny the motion – the court has no discretion to grant summary
judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana
v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿
II. Request for
Judicial Notice
The
court may take judicial notice of “official acts of the legislative, executive,
and judicial departments of the United States and of any state of the United
States,” “[r]ecords of (1) any court of this state or (2) any court of record
of the United States or of any state of the United States,” and “[f]acts and
propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.” (Evid. Code § 452(c), (d), and (h).) “Taking
judicial notice of a document is not the same as accepting the truth of its
contents or accepting a particular interpretation of its meaning.” (Joslin
v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)
Plaintiffs request
judicial notice of the following:
1)
Section 205 of the City of Carson City
Charter dated September 3, 2020, a true and correct copy of which is attached
hereto as EXHIBIT A.
2)
Los Angeles County Sheriff’s Department
Newsletter Volume 06 Number 04 dated February 5, 2016, a true and correct copy
of which is attached hereto as EXHIBIT B.
3)
California Department of Justice
Division of Law Enforcement Information Bulletin No. 2022-DLE-05 dated July 13,
2022, a true and correct copy of which is attached hereto as EXHIBIT C.
While the court may take judicial
notice of Exhibit A as it is an official act, Plaintiffs fail to show that
Exhibits B and C are proper subjects of judicial notice as the facts asserted
therein are subject to dispute. “‘Judicial notice is
the recognition and acceptance by the court, for use by the trier of fact or by
the court, of the existence of a matter of law or fact that is relevant to an
issue in the action without requiring formal proof of the matter.’ [Citation.]”
(Lockley v. Law Office of Cantrell, Green, Pekich, Cruz &
McCort (2001) 91 Cal.App.4th 875, 882.) The court may only take
judicial notice when there is no question as to the truth of those statements.
(Starkman v. Mann Theatres Corp. (1991)
227 Cal.App.3d 1491, 150.)
Therefore, Plaintiffs’ request
for judicial notice is granted as to Exhibit A and denied as to Exhibits B and
C.
III. Evidentiary
Objections
Plaintiffs submit
evidentiary objections to the Declaration of Deputy Jose Hurtado
Objection Nos. 1, 3, 4, 5, 6, 9,
11, 12, and 13, 14 are overruled.
Objection No. 2 is sustained in
part as to the statement: “[I was] informed that the parties had a verbal
rental agreement.” (Hurtado Decl. ¶ 11.)
.
Objection
Nos. 7, 8, 10 are sustained.
Defendant Hurtado’s
Objections to Plaintiffs’ Expert Opinion
Objections
Nos. 1 2, 3, and 5 are sustained.
Objections
Nos. 3 and 4 are overruled.
IV. Plaintiffs’
Objections to Defendant’s Separate Statement
Plaintiffs also object to Defendant Hurtado’s Separate
Statement on the basis that it fails to comply with Cal. Rules of Court, Rule
3.1350 by failing to identify separately each cause of action and affirmative
defense and corresponding material fact. The court finds that Rule 3.1350 was
not violated because the separate statements pertain to only one single cause
of action and one single affirmative defense such that the separate statement
hinges on the same facts. Therefore, the court declines to strike Defendant Hurtado’s
Separate Statement.
V. Discussion
A. Statement of Facts
The following facts
are undisputed unless the fact is supported by citation to the evidence.
Burton was the landlord and resided in a house connected to a 4-unit apartment
complex located in Carson, CA (the “Residence”). (Undisputed Material Fact
(“UMF”) 1.) In May or June 2020, Plaintiffs entered into a verbal agreement
with Burton whereby they would reside in the Residence in exchange for doing
landscaping and repair work around the complex. (UMF 1, 2.)
In June 2020, a dispute between
Plaintiff Christopher Ebersole (“Ebersole”) and his girlfriend arose and
resulted in Burton getting involved and later serving Ebersole with a
restraining order on or about July 10, 2020. (UMF 3, 4.) Burton changed her mind
about having Plaintiffs live in the Residence and decided to evict the
Plaintiffs illegally. (UMF 5.) In June 2020, Burton told Plaintiffs that she
wanted them to move out of the Residence so that she could move others in. (UMF
6.) Burton also had the water shut off in the Residence two weeks before the
lockout occurred. (UMF 7.)
On July 17, 2020,
Burton called Plaintiffs to inform them that she was changing the locks to the
door to the Residence. (UMF 8.) At 10:00 p.m., Plaintiffs arrived at the
Residence and saw Burton with a locksmith kneeling down to change the locks on
the door. (UMF 8.) Plaintiff Shana Anglin (“Anglin”) confronted Burton who
stated that it was her property and she could do what she wanted. (UMF 9;
Defendant’s Compendium of Evidence (“DCOE”) Ex. K. [Anglin Depo. at p.
43:13-20].) Anglin called the police. (UMF 9.) The Los Angeles County Sheriff’s
Department (“LASD”) received the call at 10:21 p.m. regarding a landlord-tenant
disturbance. (UMF 10.) Deputy Jose Hurtado (“Hurtado”) did not respond to the
July 17, 2020, 911 call. (UMF 10.)
On July 18, 2020, at
about 11:00 a.m., Plaintiffs returned to the Residence and once again called
the police. (UMF 12.) LASD records show that Anglin called 911 and that call, received
at 11:51 a.m., was classified as a landlord-tenant disturbance. (UMF 13.) In
the call, Anglin stated that the landlord had locked her out of her residence
and was refusing to let her inside. (UMF 13.) Deputy Hurtado was assigned to
the July 18, 2020, call. (Hurtado Decl. ¶ 5, DCOE Ex. E.) He arrived 23 minutes
after the call was made at 12:14 p.m. (UMF 15.) Deputy Hurtado spoke with both
Burton and Plaintiff Anglin. (UMF 16.)
At her deposition, Plaintiff
Anglin states that she informed Deputy Hurtado about the events of the previous
night, July 17, 2020, but fails to state that she specifically told Deputy
Hurtado that she did not consent to move out of the Residence and that she had
no intention of doing so. (Plaintiffs’ Compendium of
Evidence (“PCOE”) Ex. K [Anglin Depo. at pp. 67:2-5, 69:6-9, 78:3-7, 78:22-23].)
According to Anglin, Deputy Hurtado responded by stating “he had too much
better shit going on or more shit going on in the city, that he couldn’t deal
with our bullshit and he couldn’t babysit.
And that we had an hour to get out.
And if he had to come back after an hour, that he was going to send
somebody to jail.” (Anglin Depo. at pp. 67:11-68-5; UMF 29.) Deputy Hurtado
does not recall if he told the Plaintiffs that they had a certain amount of
time to get their belongings. (PCOE Ex. G [Hurtado Depo. at p. 25:23-25].)
Deputy
Hurtado reviewed the mobile digital entry of July 17, 2020, that reflected that
Burton had locked the tenants out of the property the previous night and that
Anglin had agreed to leave the location and return for her property the next
day. (Hurtado Decl. ¶ 13, DCOE Ex. D; PCOE Ex. G [Hurtado Depo. at pp.
18:22-19:5].) Deputy Hurtado does not recall what he and Burton discussed. (Hurtado
Depo. at p. 20:25-21:5.) He does not recall if Burton provided proper
documentation for an eviction, but he recalls that the resolution reached was
to allow “Shana Anglin to go back inside to retrieve her property because she
was already leaving anyway.” (Hurtado Depo. at p. 21:10-20.) Deputy Hurtado
also testified he did recall telling the tenants that they could not be evicted
from the Residence without a court order. (Hurtado Depo. at p. 26:16-21.)
The parties do not
dispute that LASD has a unit trained and dedicated to performing evictions.
(UMF 22.) Deputy Hurtado’s response to the July 18, 2020, call resulted in no
arrests or detentions. (UMF 25.) Deputy Hurtado only spent 15 minutes dealing
with the call and did not leave his patrol vehicle. (UMF 26.) When Deputy
Hurtado left the Residence, Plaintiffs were still at the scene. (PCOE Ex. G
[Hurtado Depo. at p. 31:15-20], DCOE Ex. K [Anglin Depo. at p. 18:6-9].) Deputy
Hurtado only responded to Anglin’s call on July 18, 2020, spent 15 minutes at
the Residence, and had no other interactions with Plaintiffs or the landlord.
(UMF 30.)
Plaintiffs brought this action against
Deputy Hurtado for violation of 42 U.S.C § 1983. Defendant Hurtado now moves
for summary judgment or, in the alternative, for summary adjudication.
B. Second
Cause of Action - Violation of the Civil Rights Act of 1871 (42 U.S.C § 1983
42 U.S.C. section 1983 provides: “Every
person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .” (42 U.S.C. § 1983.) “There are two essential elements of
a claim under section 1983, (1) the conduct complained of was committed by a
person acting under color of state law; and (2) the conduct deprived the
plaintiff of a right, privilege or immunity secured by the Constitution or laws
of the United States.” (McAllister v. Los Angeles Unified School Dist.
(2013) 216 Cal.App.4th 1198, 1207 (McAllister).)
Defendant
Hurtado asserts that
Plaintiffs’ section 1983 claim fails because there is no evidence of state action.
“Action taken by private individuals may be ‘under color of state law’ where
there is ‘significant’ state involvement in the action.” (Howerton v. Gabica
(9th Cir. 1983) 708 F.2d 380, 382 [citations omitted].) For the offending
conduct to be attributable to the State, the private actor must have “acted
together with or has obtained significant aid from state officials, or because
his conduct is otherwise chargeable to the State.” (Lugar v.
Edmondson Oil Co., Inc. (1982) 457 U.S. 922, 923 [102 S.Ct. 2744,
2746, 73 L.Ed.2d 482].) Defendant Hurtado argues that Plaintiffs cannot show
that he acted together with Burton to evict the Plaintiffs because the
Plaintiffs had already been locked out on July 17, 2020. (UMF 8.)
Alternatively, Defendant Hurtado asserts he is immune from liability under
qualified immunity. (See Julian v. Mission Community
Hospital (2017) 11 Cal.App.5th 360 (Julian).)
“The term ‘evict’ means ‘[t]o expel ...
by legal process; put out’; ‘[t]o force out; eject; dispossess’; ‘[t]o recover
(property, for example) by a superior claim or legal process.’ [Citation.]
These dictionary definitions comport with the commonly understood meaning of
the word—an eviction requires that a person first be in actual possession of
real property, and then be removed from that property.” (Cunningham v.
Universal Underwriters (2002) 98 Cal.App.4th 1141, 1149.) The legal
definition of an eviction is the same: an ‘eviction’ is ‘[t]he act or process
of legally dispossessing a person of land or rental property.’ ” (Ibid
citing Black's Law Dict. (7th ed. 1999) p. 575, col. 2.) Defendant Hurtado
asserts that he did not evict Plaintiffs because the Plaintiffs had already
been locked out of the Residence. (UMF 8.) Defendant Hurtado further asserts
that he did not forcefully remove the Plaintiffs from the residence, nor did he
prevent the Plaintiffs from entering the residence. Plaintiff Anglin admitted
that her son, Elijah, was able to reenter the residence to get his things. (PCOE
Ex. K [Anglin Depo. at p. 110:14-23].)
“What is clear, however, is that a ‘state
action may be found if, though only if, there is such
a close nexus between the [s]tate and the challenged action’ that seemingly
private behavior ‘may be fairly treated as that of the [s]tate itself.’”
(Patel v. Chavez (2020) 48 Cal.App.5th 484, 490 citing Brentwood Academy v. Tennessee Secondary School Athletic Ass'n
(2001) 531 U.S. 288 [121 S.Ct. 924, 926, 148 L.Ed.2d 807] [internal quotation
marks omitted].) The undisputed facts here are that Burton had already changed
the locks on the Residence the day before so that the lockout had already
occurred. (UMF 8-10.) This was a superseding event in which Deputy Hurtado did
not participate and had no obligation to prevent because he was not present
when the lockout occurred.
The case Howerton
v. Gabica (9th Cir. 1983) 708 F.2d 380 is instructive as to what
conduct is considered sufficient evidence of state action. In Howerton,
the Ninth Circuit found sufficient evidence of state action because the “Police
were on the scene at each step of the eviction.” (Id. at p. 384.) The
landlord testified “that the police presence gave him the feeling he had the
right to cut off the utilities.” (Ibid.) This was because when the
landlord warned the plaintiffs that “their water and power services would be
disconnected if the Howertons did not leave immediately” the landlord was
“accompanied by Randy Baldwin, a police officer” who was “in uniform and on
duty.” (Id. at p. 381.) The visit by the police was “unsolicited” and
“[t]here is indication that on another occasion, when Officer Baldwin responded
to a call from Mrs. Gabica reporting a domestic disturbance at the Howerton
residence, he inquired whether the tenants had found a new rental.” (Id. at
p. 384.) “Moreover, the police officer actively intervened—he privately approached
the Howertons and recommended that they leave the trailerhouse.” (Ibid.)
Specifically, “Officer Baldwin returned alone to the Howerton residence” and
“informed them that the Gabicas were using proper eviction procedures and advised them to
quit the premises.” (Id. at p. 381.) Taking these actions in total, the
Ninth Circuit found that “[t]he actions of Officer Baldwin created an
appearance that the police sanctioned the eviction.” (Id. at p. 384.)
Howerton involved “more than a single incident of police consent to ‘stand by’
in case of trouble” and the defendants “repeatedly requested aid by the police to effect
the eviction, and the police intervened at every step.” (Howerton, supra,
708 F.2d at pp. 384, 385.) Here, Deputy Hurtado responded to Plaintiffs’ 911
call only once. (UMF 30.) He was at the Residence for only 23 minutes. (UMF
15.) Defendant Hurtado’s involvement with the Plaintiffs was also not
unsolicited as Plaintiff Anglin called 911. (UMF 9.) Furthermore, Burton had
already shut off the water two weeks before the July 18, 2020, call. (UMF 7.) More
importantly, Burton had also already changed the locks on the Residence the day
before. (UMF 8.) “Joint action therefore requires a substantial degree of
cooperative action.” (Collins v. Womancare (9th Cir.
1989) 878 F.2d 1145, 1154.) Based on the above facts, the court finds that
Defendant Hurtado has met his burden of showing that his conduct did not amount
to state action.
Even if there was evidence of state
action, Deputy Hurtado argues that he is entitled to qualified immunity. The two-prong
test for qualified immunity first “‘analyzes whether a constitutional right was violated, which
is a question of fact. The second examines whether the right was clearly
established, which is a question of law. Step two serves the aim of refining
the legal standard and is solely a question of law for the judge.’” (Julian,
supra, 11
Cal.App.5th 360, 385 citing Tortu v. Las Vegas Metropolitan Police Dept.
(9th Cir. 2009) 556 F.3d 1075, 1085.) “‘[C]ourts
have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first.’” (Julian,
supra, 11 Cal.App.5th at 386, citing Ashcroft v. al-Kidd (2011) 563 U.S. 731, 735.)
Defendant Hurtado states he is entitled
to qualified immunity because he did not violate the Fourth and Fourteenth
Amendments by depriving Plaintiffs of their property without due process, nor
did he seize the Plaintiffs’ persons, house, papers, or effects. During the
time Deputy Hurtado handled the call, no arrests or detentions were made. (UMF 25.)
Accordingly, Deputy Hurtado asserts there is no evidence to show that he
violated a clearly established constitutional right by failing to act or
prevent Plaintiffs’ eviction.
The court finds that Defendant Hurtado
has met his initial burden and the burden shifts to the Plaintiffs to show that
triable issues of material fact exist.
C. Plaintiffs’ Opposition
i. Plaintiffs Present Evidence of State
Action
Plaintiffs argue that
Defendant Hurtado performed an illegal eviction because (1) he instructed
Plaintiffs to leave the premises without a court order, (2) he failed to advise Burton that it is a
misdemeanor to change the locks without a court order under Penal Code § 418,
(3) failed to advise the landlord that she could not evict Plaintiffs without a
court order, and (4) failed to instruct the landlord that she was legally
required to let Plaintiffs back into their home, and (5) failed to arrest
Burton for violating Penal Code § 418.
“On a summary judgment motion, we must
assume the deputy sheriff, rather than passively observing the seizure,
actually effected it for the landlord. Such an active involvement by an on-duty
deputy sheriff constitutes state action.” (Greco v. Guss (7th
Cir. 1985) 775 F.2d 161, 168.) Here, both Plaintiff Anglin and Plaintiff
Ebersole testified that Defendant Hurtado told them they had one hour to get
their belongings, or someone was going to jail. (PCOE Ex. J [Ebersole Depo. at
pp. 52:13-53:8], Ex: K [Anglin Depo. at p. 67:22-68:5].)
The court agrees that in viewing the evidence in the light most favorable to
the Plaintiffs, the threat of arrest could be viewed as sufficient to support a
finding of state action.
In Harris v. City of Roseburg (9th Cir. 1981) 664 F.2d 1121,
the plaintiff testified that an officer told him that
if he “interfered either any further or in any
way that [he] was going straight to jail” and that if the officer had not been
there, his truck would not have been taken as he would have physically resisted.
(Id. at 1127.)
The Ninth Circuit stated:
We conclude that there
may be a deprivation within the meaning of § 1983 not only when there has
been an actual “taking” of property by a police officer, but also when the
officer assists in effectuating a repossession over the objection of a debtor
or so intimidates a debtor as to cause him to refrain from exercising his legal
right to resist a repossession. While mere acquiescence by the police to “stand
by in case of trouble” is insufficient to convert a repossession into state
action, police intervention and aid in the repossession does constitute state
action.
(Id. at 1127.) Here, Plaintiffs testified that they
would not have acquiesced to leave the premises with all their belongings had
Deputy Hurtado not threatened arrest. (PCOE Ex. K [Anglin Depo. at p.
105:19-106:5], Ex J [Ebersole Depo. at pp. 56:7-14, 66:17-23].)
In Booker
v. City of Atlanta (11th
Cir. 1985) 776 F.2d 272, the Eleventh Circuit
found that the presence of police during the repossession was sufficient to
raise a triable issue of fact precluding summary judgment.
Even if
a jury were to find that [Officer] Couvillion did not actively assist with the
repossession, it nevertheless could find that Couvillion's arrival
with the repossessor gave the repossession a cachet of legality and had the
effect of intimidating Booker into not exercising his right to resist, thus
facilitating the repossession. Even if unintended, such an effect could
constitute police ‘intervention and aid’ sufficient to establish state action.
(Id. at 274.) Here, a jury could
find that the threat of arrest prevented Plaintiffs from lawfully exercising
their right to resist Burton’s unlawful eviction efforts.
Similarly, in Jones v.
Gutschenritter (8th Cir. 1990) 909 F.2d 1208, the Eighth Circuit found that triable issues
of fact existed as to whether the officer “assist[ed] in effectuating the
disconnection of Jones' electrical service over the
objection of Jones or so intimidated him as to cause
him to refrain from exercising his legal right to resist
the disconnection” because although there was “no direct confrontation or exchange of words” between
the officer and the plaintiff, the officer had stood by while the plaintiffs
electrical services were disconnected. (Id. at 1212) Here, Officer Hurtado did more
than standby; he actively threatened Plaintiffs with arrest if they did not remove
their possession from the premises in one hour. (UMF 29.)
On reply, Defendant Hurtado asserts that the threat of arrest
is insufficient to find state action. Defendant Hurtado relies on Meyers v. Redwood City (9th Cir. 2005) 400 F.3d 765, in which the Ninth Circuit determined that the was no state
action despite the officers' threat of arrest. In Meyers, two officers arrived at a scene involving a
dispute over the repossession of a vehicle. (Id. at 768.) The defendant
told the officers that “he wanted to effect a
citizen's arrest against Plaintiffs for assaulting him” while Plaintiffs “too, wished to
effect a citizen's arrest against [defendant]
Bruno for assault and trespass.” (Id. at 769.)
Officer
O'Keefe satisfied herself that Bruno had been authorized to repossess the
vehicle and asked Bruno something to the effect of, “Is there any way we can
resolve this situation peacefully?” Bruno stated that he would not press
charges if Plaintiffs would let him take the vehicle away. According to the
complaint, Officer O'Keefe went to the Plaintiffs and told them ‘It looks like this is what we are going to do
here, either you are going to let [Bruno] take the car, or we are going to
arrest you.’ Plaintiffs allege that they were “incredulous” and insisted on
speaking to a police sergeant. Officer Dowden was summoned. After being
apprised of the situation, Dowden relayed to Plaintiffs that giving the car to Bruno was their only option to
avoid arrest. Plaintiffs, feeling they had no choice, agreed to let Bruno take
the car.
(Ibid.)
The Meyers plaintiffs asserted
that the officers misused their authority by intervening to assist Bruno in the
unlawful repossession and intimidating the plaintiffs so that “she refrained from resisting the unlawful
repossession.” (Id. at 769.) Nevertheless, the Ninth Circuit
determined that “the officers were not so enmeshed
in effectuating the repossession that the deprivation and seizure of [plaintiff]'s
car is attributable to the state.” (Id. at 771.) The Ninth Circuit found
that mitigating facts against the finding of state action existed because “[c]learly
a ‘breach of the peace’ within the meaning of Section 9609
was in progress” and the “officers then heard conflicting
stories about whether Bruno had taken effective possession of the car
prior to the breach.” (Id. at 772.) The Meyers Court found that
“[t]he officers could have reasonably believed that
Bruno had a colorable claim to the car and, without resolving whether Bruno was
entitled in law and fact to repossess the car, determined that they had to
present the options to [plaintiffs about possible arrest]. In this
situation, it is Bruno, not the officers, who risks suit for
either wrongful repossession or false arrest.” (Id. at 773-774.)
The court finds that the facts in this
present action are distinguishable from Meyers. Unlike the officers in
Meyers who were presented with “conflicting stories,” the facts show that
Deputy Hurtado knew that Burton had engaged in an illegal lockout because he
admitted to viewing the history report from the previous night noting that
Burton had locked the Plaintiffs out of the property. (PCOE Ex. G [Hurtado
Depo. at pp. 18:20-19:5]; DCOE Hurtado Decl. ¶¶ 10, 13, 16, Ex. D.) At his
deposition, Deputy Hurtado admitted that he recalled speaking with Burton and
asking her if she had an eviction notice, and informing the Plaintiffs that
they could not be evicted without a court order. (Hurtado Depo. at p. 26:12-18].)
Defendant Hurtado fails to show that like
the officers in Meyers, he believed Burton had a colorable claim that
permitted her to evict the Plaintiffs. Moreover, the officers in Meyers had
a reasonable basis to threaten to arrest the plaintiffs. Here, Defendant Hurtado fails to show that he
had a reasonable basis for threatening to arrest the plaintiffs if they did not
vacate the property. Here, the trier of fact could find that because Deputy
Hurtado knew that Burton had engaged in an illegal lockout, but he nevertheless
threatened to arrest the Plaintiffs if they did not vacate the property,
amounted to conduct sufficient to support a finding of state action.
Nonetheless, for Plaintiffs to prevail on
their 1983 claim, they must still show that Defendant Hurtado is not entitled
to qualified immunity.
ii. Plaintiffs Show that Deputy Hurtado Is Not
Entitled to Qualified Immunity
“A court required to rule upon the
qualified immunity issue must consider, then, this threshold question: Taken in
the light most favorable to the party asserting the injury, do the facts
alleged show the officer's conduct violated a constitutional right?” (Saucier v. Katz (2001) 533 U.S. 194, 201 [121 S.Ct.
2151, 2156, 150 L.Ed.2d 272]; Fuentes v. Shevin
(1972) 407 U.S. 67, 86 [92 S.Ct. 1983, 1997, 32 L.Ed.2d 556] (Fuentes).)
The court agrees that Plaintiffs have presented sufficient evidence of a
constitutional violation because their property interest in their tenancy was
terminated without due process. (See Fuentes v. Shevin
(1972) 407 U.S. 67, 82 [92 S.Ct. 1983, 1995, 32 L.Ed.2d 556].) Plaintiffs
present sufficient evidence to support the finding that despite the lockout,
Plaintiffs exercised their right to return to the Residence and regain
possession, but that Defendant Hurtado’s threat of arrest led to Plaintiffs
vacating the property with all their possessions despite the lack of a court
order. (PCOE Ex. K [Anglin Depo. at p.
105:19-106:5], Ex J [Ebersole Depo. at pp. 56:7-14, 66:17-23].)
In the second prong for the qualified immunity test, “the court must decide whether the right
at issue was “clearly established” at the time of defendant's alleged
misconduct.” (Pearson v. Callahan (2009) 555 U.S. 223, 232 [129 S.Ct.
808, 816, 172 L.Ed.2d 565].) “A right is clearly established only if its
contours are sufficiently clear that ‘a reasonable official would understand
that what he is doing violates that right.’ [Citation.]” (Carroll v. Carman (2014) 574 U.S.
13, 16 [135 S.Ct. 348, 350, 190 L.Ed.2d 311].) “In other words, ‘existing
precedent must have placed the statutory or constitutional question beyond
debate.’ [Citation.] This doctrine ‘gives government officials breathing room
to make reasonable but mistaken judgments,’ and ‘protects ‘all but the plainly
incompetent or those who knowingly violate the law.’ [Citation.]” (Carroll v. Carman (2014) 574 U.S. 13, 16–17 [135 S.Ct.
348, 350, 190 L.Ed.2d 311].)
Plaintiffs rely on Abbott v. Latshaw, 164 F.3d 141 (3d Cir. 1998), for the
proposition that since the Supreme Court’s decision in Fuentes, Deputy
Hurtado should know “that it is not for law enforcement officers to decide who
is entitled to possession of the property. Rather, it is the domain of the
courts, and citizens are to have a meaningful opportunity to be heard as to
their rights before they are finally deprived of possession of property.” (Id.
at p. 149.) In Abbott, Lieutenant George involved himself in a dispute
involving the possession of a vehicle by not remaining neutral, advising the
defendant that she had the right to immediate possession of the vehicle, and
threatening arrest of the plaintiff. (Id. at p. 147.) The Third Circuit
stated:
We
also conclude that an objectively reasonable officer would have realized the
illegality of Lt. George's conduct. Reasonable
police officers should know from the established precedent of Fuentes
that their role is not to be participants in property deprivations without
notice and an opportunity to be heard. There came a point
during this incident when Lt. George's role changed from the protector of the
peace to the enforcer.
(Id. at p. 149.)
Here, the facts establish that Defendant
Hurtado knew that Plaintiffs could not be evicted without a court order. (PCOE
Ex. G. [Hurtado Depo. at p. 26:12-21].) This is sufficient to show that
Defendant Hurtado knew that procedural due process required a court order
before Plaintiffs’ possessory interest in the Residence was terminated. Additionally, a trier of fact could find that
by threatening to arrest someone, Defendant Hurtado took on the role of an
enforcer by threatening to arrest Plaintiffs if they did not vacate the
residence. (PCOE Ex. K [Anglin
Depo. at p. 105:19-106:5], Ex J [Ebersole Depo. at pp. 56:7-14, 66:17-23].)
In reply, Defendant Hurtado fails to show that the threat of
arrest was not a clear violation of the Plaintiffs’ constitutional rights. Based on the above, the court finds that the
Plaintiffs succeed in showing that triable issues of fact exist as to whether
Defendant Hurtado’s conduct constituted state action and whether he is entitled
to qualified immunity.
Therefore,
Defendant Hurtado’s motion for summary judgment, or in the alternative, for summary
adjudication is denied.
Conclusion
Defendant Hurtado’s motion for summary judgment, or in the
alternative, for summary adjudication is denied. Defendant to give notice.