Judge: Gail Killefer, Case: 22STCV20234, Date: 2024-02-21 Tentative Ruling
Case Number: 22STCV20234 Hearing Date: February 21, 2024 Dept: 37
HEARING DATE: Wednesday, February 21, 2024
CASE NUMBER: 22STCV20234
CASE NAME: Liliana Cortex v Phalann Blackwood, et al.
MOVING PARTY: Defendants University of
Southern California, Phalann Blackwood, Carlos Maddox
OPPOSING PARTY: Plaintiff Liliana Cortez
TRIAL DATE: 18 June 2024
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment/Summary Adjudication
OPPOSITION: 24 January 2024
REPLY: 2
February 2024
TENTATIVE: Defendants’ motion for summary judgment is
denied. Defendants’ motion for summary adjudication is granted as to the fourth
cause of action for false arrest/imprisonment and denied as to the first cause
of action for violation of the Bane Act, second cause of action for assault and
battery, third cause of action for negligence, fifth cause of action for
intentional infliction of emotional distress, and sixth cause of action for
violation of Civ. Code § 43.
Defendants to give notice.
Background
On
June 21, 2022, Liliana Cortez (“Plaintiff”) filed a Complaint against the
University of Southern California (“USC”); Phalann Blackwood (“Blackwood”); Carlos
Maddox (“Maddox”) (collectively “Defendants”); and Does 1 to 10.
The operative Complaint alleges
six causes of action: (1) Violation of the Bane Act (Civ. Code, § 52.1); (2)
Assault and Battery; (3) Negligence; (4) False Arrest/Imprisonment; (5)
Intentional Infliction of Emotional Distress; and (6) Violation of the Right of
Protection from Bodily Restraint or Harm (Civ. Code, § 43.)
On September 19, 2023,
Defendants moved for summary judgment, or in the alternative, summary
adjudication, as to all causes of action alleged in the Complaint. On January
24, 2024, Plaintiff filed opposing papers to the Motion. The matter is now
before the court.
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. Evidentiary Objections
Plaintiff’s
evidentiary objections:
Objection
No. 28 is sustained.
Objection
No. 23 is not material and the court declines to rule on the objection.
The
remainder of the objections are overruled.
Defendants’ Evidentiary
Objections to Plaintiff’s Evidence:
In
violation of Cal. Rules of Court, rule 3.1354, Defendants fail to include an
objection number in and instead refer to the objection by reference to the
evidence/exhibit it objects to. The court exercises its discretion and rules as
follows:
Objections
to Exhibit J is sustained.
Objections
to Exhibits F, I, K, and L are sustained.
III. Discussion
A. Statement
of Facts
The
following facts are undisputed unless the fact is
supported by citation to the evidence. The incident that gave rise to this suit
occurred on October 11, 2019, at approximately 2:10 a.m. at the Alpha Chi Omega
sorority house, located at 813 West 28th Street, Los Angeles, CA. (Undisputed
Material Fact (“UMF”) Nos. 1, 2.) The parties dispute whether the Alpha Chi
Omega sorority house is private property or public property. At the time of the
incident, Plaintiff resided in an apartment located at 2200 Toberman Street,
Los Angeles, CA. (Plaintiff’s Compendium of Evidence (“PCOE”) Ex. B
[Plaintiff’s Depo. at pp. 9:24-10:8]; Defendants’ Compendium of Evidence
(“DCOE”) Ex. 5 [Plaintiff’s Depo. at pp. 9:24-10:8].) On the evening of October
11, 2019, Plaintiff grabbed drinks with coworkers, including Fermin Alvarez
(“Alvarez”). (Plaintiff’s Depo. at p. 53:21-25.) Prior to arriving at the Alpha
Chi Omega Sorority house, Plaintiff had consumed alcohol. (Plaintiff’s Depo. at
p. 57:9-12.) Plaintiff had also been
smoking marijuana. (UMF 6.)
At her deposition,
Plaintiff stated that on the way to her apartment, she and Mr. Alvarez arrived
at the Alpha Chi Omega house and saw a tree which mesmerized Plaintiff to the
extent that she went to hug the tree. (Plaintiff’s Depo. at pp. 61:16-62:5.)
And I grabbed my bicycle, hopped over the
whatever you want to call it, that little two-foot wall
that stands at the edge of the property, and hopped over it with my bike
over my right shoulder, laid it on the ground and walked up to the tree and
hugged it.
(Id. at p. 62:6-11.)
Plaintiff estimated that she spent
about three minutes hugging the tree until the officers arrived. (Id. at
p. 66:2-5.)
Officer Phalann
Blackwood (“Blackwood”) was patrolling the area when he heard a security guard
yell “Get off the property.” (PCOE Ex. D [Blackwood Depo. at p. 26:1-14].) Officer
Blackwood approached the Alpha Chi Omega house and instructed Plaintiff and Mr.
Alvarez to “Come to me, turn around, face the house.” (Id. at p.
40:6-12.) Officer Blackwood did not instruct Plaintiff or Mr. Alvarez to leave
the property, nor did he allow them to leave the property. (Id. at p.
40:13-21.) Plaintiff did not respond to Officer Blackwood’s commands and
instead tried to pick up her bicycle to try to leave. (Id. at p. 41:3-5.)
Officer Blackwood states that he told Plaintiff she was not free to leave. (Id.
at p. 41:23-25.) Officer Blackwood states that he had
reasonable suspicion to believe that the crime of trespass was occurring, had
occurred, or was about to occur. (Id. at p. 42:1-15].) His suspicion
that a crime was occurring was based on his training and experience, given that
the property was a sorority and not a fraternity, no male should be on the
property at that time of night, the suspects were not of college age, and the
security guards who work at the sororities know which individuals reside in the
property. (Id. at p. 46:5-14.)
As Officer Blackwood
grabbed Plaintiff’s arm, “[s]he immediately tensed her arm and extended
outwards away from her body.” (Blackwood Depo. at p. 56:14-17; 58:4-7.) Officer
Blackwood asserts that he gave no warning and asked no questions before he grabbed
Plaintiff’s arm. (Id. at pp.
56:23-54:4; 57:24-58:1.) At this time, Officer Carlos Maddox (“Maddox”) appeared
at the scene. The video camera audio
shows Plaintiff stating: “I am not resisting” while Officer Maddox commands
Plaintiff to “Stop resisting” and asking Plaintiff “Why are you tensing up?”
(PCOE Ex. D [Blackwood Depo. at p. 75:4-10.) According to Officer Maddox,
Plaintiff was “resisting the handcuffs being put on” by “just moving back and
yelling at officers.” (PCOE Ex. E [Maddox Depo. at p. 41:7-19].) Officer
Blackwood also admits that he told Plaintiff:
You are fucking trespassing, bitch. Do
you fucking live here?
(Blackwood
Depo. at p. 75:13-15; PCOE G [Part 1 Axon Body 2 Video], PCOE Ex. H [Part 2 Axon Body 2 Video];
DCOE Ex. 6 [Part 2 Axon Body 2 Video], DCOE Ex. 7 [Part 2 Axon Body 2 Video].)
Plaintiff
states she never heard a security guard tell her to leave the property or stop
hugging the tree. (Plaintiff’s Additional Facts (“PAF”) 28, 35.)According to
the Plaintiff’s recollection of events, an officer pulled her right shoulder,
yanked her off the tree, and asked her “Are you homeless? Are you lost?” (PCOE
Ex. B [Plaintiff’s Depo. at p. 71:3-21].) Plaintiff asserts that once she was
told she should not be on the property she said she was now leaving and that
she was hugging the tree on the way home. (Plaintiff’s Depo. at p. 71:14-23.)
Plaintiff then states she was surrounded by officers and that she tried to grab
her bicycle to leave but she was told “no, you’re not leaving now.” She tried to grab her bicycle because the
“other officer was trying to walk off with it.” (Plaintiff’s Depo. at pp.
72:15-19.)
Plaintiff
admits that officers demanded that she let go of the bicycle, but she stated
“this is my bicycle and I can do this myself.” They said no and shoved her to the ground.
(Plaintiff’s Depo. at pp. 73:20-74:2.) Plaintiff states that one officer pulled
on her left arm while another was behind her with his knee behind her on her
back, adding pressure between her shoulder blades and not allowing Plaintiff to
breathe. (Plaintiff’s Depo. at p. 75:3-9.)
Plaintiff
asserts that she tried to diffuse the situation by yelling:
Why are you doing this, Like, yo’, I’m
a community member, I’m a patient at the School of Dentistry. I live here in
the community. I’m a teacher. Like, yo', my hands were
even up in the air. And I was, like, yo', I'm not doing anything wrong. What
the fuck is this all about? Like is this -- do you really need to do this for
this?
(Plaintiff’s Depo. at p. 75:4-14.)
Plaintiff
states that she was not aware she was being detained or questioned. She was apologizing and told the officers
that she was “leaving anyways” before she was “pulled” off the tree by the
officer. (Plaintiff’s Depo. at p. 91:11-23.) Plaintiff also asserts the
officers “were trying to subdue me into a position where they could hog tie me”
because “[t]hey were trying to kick my legs together into that position” and
“[t]hey were trying to squeeze my legs in together or hold” because the
officers “were already starting to pull the cuffs out too.” (Plaintiff’s Depo.
at p. 91:7-25.)
Plaintiff
asserts that if she had understood that officers wanted to put her hands behind
her back so that they could handcuff her, she would have complied. (Plaintiff’s
Depo. at pp. 103:19-104:6.) Prior to the body dash camera starting to film the
incident, Plaintiff asserts that one officer approached her and “yanked me off
the tree from my right shoulder, proceeded to yell and scream at me and insult
me,” while another officer grabbed Plaintiff’s bicycle, and another officer who
was behind her “grabbed me from the arms and tackled me down to the ground.”
(Plaintiff’s Depo. at p. 89:21:90:3.)
Defendants
maintain that they did not use force after Plaintiff was handcuffed while
Plaintiff asserts she was “pulled around, shoved” while they took her into the
DPS squad car. (Maddox Decl. ¶ 41, Blackwood Decl. ¶ 32; Plaintiff’s Depo. at
p. 104:16-107:3; PCOE G [Part 1 Axon Body 2 Video],
PCOE Ex. H [Part 2 Axon Body 2 Video]; DCOE Ex. 6 [Part 2 Axon Body 2 Video],
DCOE Ex. 7 [Part 2 Axon Body 2 Video].)
Defendants maintain that the arrest was pursuant to a citizen’s
arrest. (Maddox Decl. ¶ 47, Blackwood Decl.¶ 33; PCOE Ex. B [Plaintiff’s Depo.
at p. 11:19-24], PCOE Ex. D [Blackwood Depo. at pp. 58:12-23; 59:15-60:1].)
Plaintiff asserts that Defendants’ counsel failed to provide the private
person’s arrest form, but Defendants’ counsel explained that Defendant USC’s
DPS operates under a Memorandum of
Understanding with the Los Angeles Police Department (“LAPD”) pursuant to Penal
Code § 830.7(b). (Oyster Supp. Decl. ¶ 3.) He advised Plaintiff’s counsel that
the Private Persons Arrest form would be in the possession of the Los Angeles
Police Department. (Ibid.)
A
criminal case report (PCOE Ex. A) resulted from the incident. The report identifies the security guard as Aliakbar Askarianzokea who, according to the report, wished to prosecute Plaintiff and
Mr. Alvarez for trespass. The report includes a “Prisoner’s Receipt” which states that the arresting
officer was “ASKARIANO KAR” and the serial number is
“CITIZN.” (PCOE Ex. A Bates No. CORTEZ00081.)
Plaintiff
was never cited or charged with resisting arrest. (PAF 97.) She claims that on the way to the jailhouse, she was informed that
she was being charged with trespassing. (PCOE
Ex. B [Plaintiff’s Depo. at p. 111: 8-18].)
Although Plaintiff was arrested, no charges were filed. (Plaintiff’s Depo. at
p. 128:20-129:1.) Defendants assert that Plaintiff was
booked on citizen’s arrest at the request of the Alpha Chi Omega security
guard, Aliakbar Askarianzokea.
(Blackwood Decl. ¶ 33, Maddox Decl. ¶ 47.) Officers Blackwood and Maddox
maintain that the use of force was in direct response to Plaintiff resisting
being handcuffed and for the limited purpose of detaining and handcuffing
Plaintiff. (Blackwood Decl. ¶ 38, Maddox Decl. ¶ 52.) Plaintiff maintains that
officers used force to effectuate an unlawful detention and arrest. (PCOE Ex. G
[Part 1 Axon Body 2 Video].) Plaintiff maintains that the arrest
and detention were illegal and that the use of force was unnecessary and
excessive. (Opposition at p. 1:15-17.)
Defendants now move for summary judgment or, in the alternative,
for summary adjudication as to all causes of action alleged against them. Plaintiff
opposes the Motion.
B. Fourth Cause of Action – False
Arrest/Imprisonment
“[T]he tort of false arrest are:
defendant arrested plaintiffs without a warrant, plaintiffs were harmed, and
defendant's conduct was a substantial factor in causing the harm.” (Carcamo v. Los Angeles County Sheriff's Dept. (2021) 68
Cal.App.5th 608, 616 (Carcamo).) “False arrest and
false imprisonment are the same tort. False arrest is a way of committing false
imprisonment.” (Cox v. Griffin (2019) 34
Cal.App.5th 440, 446, fn. 6.) “If plaintiffs prove those elements [of the tort
for false arrest/imprisonment], defendant has the burden of persuasion to prove
the arrest was justified.” (Carcamo, at p. 616). “[T]he arrest is justified if defendant had
reasonable or probable cause to believe that each plaintiff committed a crime
in his presence.” (Ibid.)
Defendants assert that they had probable
cause for a citizen’s arrest. ‘[P]robable cause is a fluid concept—turning on
the assessment of probabilities in particular factual contexts....' [Citation.]
It is incapable of precise definition. [Citation.] ‘The substance of all the
definitions of probable cause is a reasonable ground for belief of guilt,’ and
that belief must be ‘particularized with respect to the person to be ...
seized.’ [Citations]” (People v. Thompson (2006) 38
Cal.4th 811, 818.
It is undisputed that Officer Blackwood
was patrolling the area where the incident occurred. (PCOE Ex. D [Blackwood
Depo. at p. 26:1-14].) The criminal case report by Defendant USC’s DPS reflects
that Officer Blackwood was flagged down by a security guard at the location of
the Alpha Chi Omega Property and that Plaintiff and Mr. Alvarez were arrested
for trespassing under Pen. Code § 602(o)(1).) (PCOE Ex. A USC-000012; Blackwood
Decl. ¶ 12.) Officer Blackwood's suspicion that trespass was or had occurred
was also based on his training and experience given that the Alpha Chi Omega
house was a sorority and that there should be no males on the property at the
time of night and the two suspects were not of college age. (PCOE Ex. D
[Blackwood Depo. at p. 46:5-14.) Accordingly, the facts above are sufficient to
show that Officer Blackwood had probable cause to believe Plaintiff was
trespassing.
Pen. Code § 837(1) permits “[a] private
person” to “arrest another” “[f]or a public offense committed or attempted in
his presence.” “A warrantless arrest by a citizen for a misdemeanor occurring
in the citizen's presence is lawful.” (People v. Bloom
(2010) 185 Cal.App.4th 1496, 1501.) Plaintiff’s deposition testimony reflects
the fact that she was informed her arrest was made pursuant to a citizen’s
arrest. (Plaintiff’s Depo. at p.
111: 8-18.) .)
The “Prisoner’s
Receipt”,
which is admissible as an official
record, reflects the arresting officer as “ASKARIANO KAR” and the serial number
is “CITIZN.” (PCOE Ex. A Bates No. CORTEZ00081.) Moreover, the security guard
who observed Plaintiff hugging the tree, Aliakbar Askarianzokea “had the right to delegate ‘the physical
act of taking an offender into custody’ to the other persons summoned,” here,
Officer Blackwood and Officer Maddox. (People v. Campbell (1972)
27 Cal.App.3d 849, 854.)
Furthermore, Pen. Code § 841 requires
“’[t]he person
making the arrest must inform the person to be arrested of the intention to
arrest him, of the cause of the arrest, and the authority to make it, except
when the person making the arrest has reasonable cause to believe that the
person to be arrested is actually engaged in the commission of or an attempt to
commit an offense[.].) At his deposition, Officer Blackwood testified that he
had reasonable suspicion to believe that the crime of trespass was occurring,
had occurred, or was about to occur. (PCOE Ex. D [Blackwood Depo. at p.
42:1-15].) Therefore, under Penal Code § 841, Officer Blackwood was not
required to tell Plaintiff she was being arrested for trespassing.
Defendants also assert that Officers
Blackwood and Maddox as “USC DPS” had authority by law to exercise the power of
arrest of a peace officer under Pen. Code § 830.7(b) and Ed. Code § 66910(b). Accordingly, when they make a private
citizen arrest under Pen. Code §§ 837 and 830, they are immune from liability
for false arrest or false imprisonment. (Pen.
Code § 847(b)(3).)
Whether Plaintiff was guilty of
trespassing under Pen. Code § 602(o) is not relevant as to whether the arrest
was justified and lawful. “Every arrest
is unreasonable and violates the Fourth Amendment, unless supported by probable
cause.” (People v. Gerberding (2020) 50 Cal.App.5th Supp. 1 [263
Cal.Rptr.3d 702, 706–707, 50 Cal.App.5th Supp. 1, 7].) Accordingly, in
adjudicating the fourth cause of action for false arrest or imprisonment in
favor of Defendants, Defendants only need to show that Officers Blackwood and
Maddox had probable cause to arrest Plaintiff, not that Plaintiff was guilty of
trespass.
The court finds that the facts stated
above are sufficient to support the finding that Plaintiff’s arrest was made
with probable cause and was made pursuant to a citizen’s arrest. Accordingly,
the burden shifts to Plaintiff to show that the arrest was not justified and
was not supported by probable cause.
i. Plaintiff’s
Opposition to Summary Adjudication of the Fourth Cause of Action
Plaintiff argues that the low brick wall
surrounding the Alpha Chi Omega was not a meaningful barrier to the public’s
access to the front lawn and to the front door such that the sorority house was
accessible to the public and there could be no crime of trespassing. “The term
‘public place’ generally means ‘a location readily accessible to all those who
wish to go there....’ [Citation.] The key consideration is whether a member of
the public can access the place ‘without challenge.’ [Citation.]” (People v. Krohn (2007) 149 Cal.App.4th 1294, 1298.)
Plaintiff admitted that she “hopped over”
“that that little two-foot
wall that stands at the edge of the property” and such a barrier is a factor
that weighs against finding that the front yard of the Alpha Chi Omega house
was public property. (PCOE Ex. B (Plaintiff’s Depo. at p. 62:6-11].) In People v. Strider (2009) 177 Cal.App.4th 1393, 1400 and People v. White (1991) 227 Cal.App.3d 886, 892, and the appellate
court found that a front yard was not a public space.
Here, the court need not decide if the
Alpha Chi Omega house was open to the public because at issue is whether
Officers Blackwood and Maddox had probable cause to arrest Plaintiff.
Although Officer Blackwood did not see a
security guard, he asserts he heard a security guard yell “Get off the
property.” (PCOE Ex. D [Blackwood Depo. at pp. 27:22-28:9.) The fact that
Officer Maddox did not hear or see the security guard prior to arriving at the
scene does not negate Officer Blackwood’s assertion that he heard a security
guard. (PCOE Ex. C [Maddox Depo. at p. 79:1-18].) The criminal case report
regarding Plaintiff’s arrest, which is admissible as an official record,
reflects that an Officer Marchal (#2047846) spoke with the security guard named
Aliakbar Askarianzokea, who was inside
the Alpha Chi Omega house and witnessed Plaintiff’s actions. (PCOE Ex. A at p.
USC-000014.)
Furthermore, Officer Blackwood testified at
his deposition that he believed Plaintiff and Mr. Alvarez were trespassing
because:
Based
on my training and experience, the time of night, the age of the people on the
property, knowing that the property is a sorority, not a fraternity, a male
shouldn't probably be on the property at that time of night. They're not of
college age. And generally, the security guards who work at the sororities know
the people who live there, and if he is telling them to leave, they generally
don't live there.
(PCOE Ex. D [Blackwood Depo. at p. 46:5-14].) Even if no security
guard was present, Blackwood’s training and experience are sufficient to
support the finding that Officer Blackwood had probable cause to believe that
Plaintiff was trespassing.
“Thus, where the
parties have had sufficient opportunity adequately to develop their factual
cases through discovery and the defendant has made a sufficient showing to
establish a prima facie case in his or her favor, in order to avert summary
judgment the plaintiff must produce substantial responsive evidence sufficient
to establish a triable issue of material fact on the merits of the defendant's
showing.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163.) Officer
Blackwood’s deposition testimony and the criminal case report state sufficient
facts to support the finding that Officer Blackwood had probable cause to
believe Plaintiff was trespassing. Moreover, when Officer Maddox heard a “Code
6”, he had probable cause to assist Office Blackwood with the Plaintiff’s
arrest. (Maddox Depo. ¶ 15.)
Here, the burden is
on Plaintiff to produce evidence that there was no security guard named Aliakbar
Askarianzokea, that he never yelled at Plaintiff to leave the property, that he
never flagged Officer Blackwood, and that no Private Person Arrest form exists.
Plaintiff cannot point to the absence of such evidence and
assert that a triable issue of fact exists when Defendants have produced other
evidence sufficient to find that Officers Blackwood and Maddox had probable
cause to believe that Plaintiff had trespassed on the Alpha Chi Omega property.
In other words, Plaintiff’s lack of evidence does not rebut Defendants’
evidence that Officers Blackwood and Maddox had probable cause to arrest
Plaintiff for trespass. Plaintiff fails to show triable issues of fact exist as
to whether Plaintiff’s arrest was lawful.
Moreover, Plaintiff fails to cite case
law or statutes that hold when a plaintiff is suspected of trespassing,
probable cause for arrest dissipates when Plaintiff tries to leave the private
property.
For the reasons set forth above, the
court grants summary adjudication on the fourth cause of action.
C. Second Cause of Action – Assault and
Battery
“The elements of a cause of action for
assault are: (1) the defendant acted with intent to cause harmful or offensive
contact, or threatened to touch the plaintiff in a harmful or offensive manner;
(2) the plaintiff reasonably believed he was about to be touched in a harmful
or offensive manner or it reasonably appeared to the plaintiff that the
defendant was about to carry out the threat; (3) the plaintiff did not consent
to the defendant's conduct; (4) the plaintiff was harmed; and (5) the
defendant's conduct was a substantial factor in causing the plaintiff's harm.
[Citation.] The elements of a cause of
action for battery are: (1) the defendant touched the plaintiff, or caused the
plaintiff to be touched, with the intent to harm or offend the plaintiff; (2)
the plaintiff did not consent to the touching; (3) the plaintiff was harmed or
offended by the defendant's conduct; and (4) a reasonable person in the
plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)
A ”Plaintiff must prove unreasonable force as an element of the tort.” (Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269,
1272 (Edson).) “A police officer in California may use reasonable force
to make an arrest, prevent escape or overcome resistance, and need not desist
in the face of resistance.” (Edson v. City of Anaheim
(1998) 63 Cal.App.4th 1269, 1272–1273; see also Pen. Code, §§ 835(a) and
834(a).)
“The test of reasonableness in this
context is an objective one, viewed from the vantage of a reasonable officer on
the scene. It is also highly deferential to the police officer's need to
protect himself and others: ‘The ‘reasonableness' of a particular use of force
must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight. [Citation.] ... The calculus of
reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in
a particular situation. [¶] [T]he ‘reasonableness' inquiry in an excessive
force case is an objective one: the question is whether the officers' actions
are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.
[Citations.]” (Martinez v. County of Los Angeles
(1996) 47 Cal.App.4th 334, 343 citing Graham v. Connor
(1989) 490 U.S. 386, 397 [109 S.Ct. 1865, 1872, 104 L.Ed.2d 443]
Pen. Code § 843a states:
If
a person has knowledge, or by the exercise of reasonable care, should have
knowledge, that he is being arrested by a peace officer, it is the duty of such
person to refrain from using force or
any weapon to resist such arrest.
“[S]ection 834a prohibits forceful
resistance to unlawful as well as lawful arrests.” (People v.
Curtis (1969) 70 Cal.2d 347, 352 disapproved on other grounds by
People v. Gonzalez (1990) 51 Cal.3d 1179.)
Defendants
assert that Plaintiff cannot show that Officers Blackwood and Maddox used
excessive force in arresting her. Here, the burden is on Plaintiff to show that
the force used to arrest her was excessive. “Placing the burden
of proof on the plaintiff to establish that an officer's use of force was unreasonable ‘gives the police appropriate
maneuvering room in which to make such judgments free from the need to justify
every action in a court of law.’” (Brown v. Ransweiler
(2009) 171 Cal.App.4th 516, 528 citing Edson, supra, 63
Cal.App.4th at p. 1272.)
As
the body camera footage does not start until Plaintiff is on the ground about
to be arrested, the court views the evidence in favor of the Plaintiff as long
as the body camera footage does not contradict Plaintiff’s version of events.
Plaintiff
asserts that officers never identified themselves and that she was instead
pulled or yanked from the tree and officers asked “Are you homeless? Are you
lost?” (PCOE Ex. B [Plaintiff’s Depo. at p. 71:6-21].) The Plaintiff asserts
that she did not know that an officer was present. (Id. at p. 71:22-25.)
Officer Blackwood does not state that he identified himself, and instead states
that he told Plaintiff “Come to me, turn around, face the house.” (PCOE Ex. D
[Blackwood Depo. at p. 40:6-9.) Officer Blackwood asserts that when Plaintiff
tried to grab her bicycle to leave, he told her she was not free to leave. (Id.
at pp. 41:23-42:2.) Officer Blackwood admits that he did not warn Plaintiff
that if she did not let go of the bicycle, he was going to physically detain her.
(Id. at p. 56:23-25.) Plaintiff asserts that had officers told her to
put her band behind her back she would have complied and let them handcuff her.
(PCOE Ex. B [Plaintiff’s Depo. at pp. 103:19-104:1.)
In Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, “[t]he officer announced himself and instructed Smith
to remove his hands from his pockets. Smith refused, responding with expletives
and directing Officer Reinbolt to come to him.” (Id. at p. 693 (City
of Hemet).) Here, prior to being shoved to the ground, Plaintiff testified
that she received no warning or indication that she was being arrested.
The court finds triable issues of fact
exist as to whether Plaintiff had knowledge, or should have had knowledge, that
she was being arrested by a peace officer. (Pen. Code, § 834a.) Likewise,
Plaintiff’s deposition testimony does not state that she did not know who
shoved her to the ground and appears to acknowledge that she knew she was being
“tackled to the ground” by an officer. (PCOE Ex. B [Plaintiff’s Depo. at pp.
89:21-90:3].) Whether Plaintiff learned that she was tackled to the ground by a
peace officer after the fact, is unclear.
Plaintiff
states:
Again, to clarify, I had one officer
approach me while I was -- when I was at the tree, they pulled and yanked me
off the tree from my right shoulder, proceeded to yell and scream at me and
insult me. And then one officer grabbed my bicycle. And there was another
officer who I could feel was behind me. And then there was another officer, the
one who grabbed me from the arms and tackled me down to the ground.
(Plaintiff’s
Depo. at pp. 89:21-90:3.)
If
Plaintiff knew at the start of the incident that a USC Public Safety Officer
had approached her and tackled her to the ground, then the trier of fact could
find that Plaintiff “ha[d] knowledge or by the exercise of reasonable care, should have knowledge,
that [s]he is being arrested by a peace officer.” (Pen. Code, § 834a.) “The
trial court may not weigh the evidence in the manner of a factfinder to
determine whose version is more likely true.¿Nor may the trial court grant
summary judgment based on the court's evaluation of credibility.” (Binder v.
Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Accordingly,
triable issues of fact exist as to whether Officer Blackwood used excessive
force in shoving Plaintiff to the ground without identifying himself or
informing Plaintiff she was being arrested.
In arresting Plaintiff,
Officer Blackwood admitted that Plaintiff was tense. (PCOE Ex. D [Blackwood Depo. at p. 58:4-7.)
The body dash camera footage also supports the finding Plaintiff tensed up. (PCOE
G [Part 1 Axon Body 2 Video], PCOE Ex. H [Part 2 Axon Body 2
Video]; DCOE Ex. 6 [Part 2 Axon Body 2 Video], DCOE Ex. 7 [Part 2 Axon Body 2
Video].) Pen. Code § 834a states that a person who knows they are
being arrested has “the duty” to “refrain from using force or any weapon to
resist such arrest.” The fact that Plaintiff was tensing up is not evidence
that Plaintiff was “using force or any weapon to resist arrest” under Pen. Code
§ 834a.
However, Pen. Code § 148(a)(1)
defines resistance as intentional conduct where “‘defendant willfully resisted, delayed, or
obstructed a peace officer, (2) when the officer was engaged in the performance
of his or her duties, and (3) the defendant knew or reasonably should have
known that the other person was a peace officer engaged in the performance of
his or her duties.’ ” (Smith, supra, (9th
Cir. 2005) 394 F.3d at p. 695, citing In re Muhammed C.
(2002) 95 Cal.App.4th 1325, 1329.) Plaintiff denies that the flexing of her
arms was an attempt to make the arrest more difficult but rather a “natural
instruct of my body.” (PCOE Ex. B [Plaintiff’s Depo. at p. 95:12-16.)
In In re Muhammed C.
(2002) 95 Cal.App.4th 1325, the appellate court found that “a reasonable
inference could be drawn that appellant willfully delayed the officers'
performance of duties by refusing the officers' repeated requests that he step
away from the patrol car.” (Id. at 1330.) In contrast, in Sparks v. City of Compton (1976) 64 Cal.App.3d 592, the
appellate court noted “Alvarez and Smith, by failing to identify themselves as
officers either by word or indicia of authority, relieved the occupants of the
Sledge vehicle of” the obligation to comply with Penal Code § 834a. (Id.
at p. 599.) The court finds that a trier
of fact could find that Officer Blackwood’s conduct of shoving Plaintiff to the
ground with no prior warning that she was being arrested or detained, was use
of unreasonable force. Moreover, a trier of fact could find Plaintiff tensing
up was not willful and that she was not resisting arrest because Plaintiff did
not know that Defendants were attempting to handcuff her; they never asked her
to put her arms behind her back or told her she was under arrest. Similarly,
the trier of fact could find that Plaintiff was aware she was being arrested by
a USC officer and that the tensing of her arms and her refusal to obey commands
to let go of her bicycle was willful conduct sufficient to support a finding
that Plaintiff resisted arrest and that the force used to effectuate the arrest
was reasonable.
“‘Because [the excessive force inquiry]
nearly always requires a jury to sift through disputed factual contentions, and to draw inferences
therefrom, we have held on many occasions that summary judgment or judgment as
a matter of law in excessive force cases should be granted sparingly.’ ”
(City of Hemer, supra,
(9th Cir. 2005) 394 F.3d at p.
701.)
Accordingly, summary adjudication is
denied as to the second cause of action.
D. Third Cause of Action – Negligence
The elements of a cause
of action for negligence are well established. They are (a) a legal duty to use
due care; (b) a breach of such legal duty; [and] (c) the breach as the
proximate or legal cause of the resulting injury.” (Ladd v. County of San
Mateo (1996) 12 Cal.4th 913, 917 [internal quotation marks omitted].) The existence of a legal duty is a
question of law for the court to decide. (Adams v. City of Fremont
(1998) 68 Cal.App.4th 243, 265.) “However, the elements of breach of that duty
and causation are ordinarily questions of fact for the jury's determination.” (Vasquez
v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.) Negligent hiring/retention has the same elements as
general negligence. “
‘An employer may be liable
to a third person for the employer's negligence
in hiring or retaining an employee who is
incompetent or unfit. [Citations.]’ ” (Phillips v. TLC Plumbing, Inc.
(2009) 172 Cal.App.4th 1133, 1139)
Defendants argue that Officers Blackwood
and Maddox acted reasonably because they had a lawful basis to arrest and
detain Plaintiff and used only minimal force to arrest her. “The ‘reasonableness’ of a particular use
of force must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight. [Citation.] [T]he
question is whether the officers' actions are ‘objectively reasonable in light
of the facts and circumstances confronting them, without regard to their
underlying intent or motivation. [Citations.]” (Brown v. Ransweiler (2009)
171 Cal.App.4th 516, 527 [internal citations and quotations omitted.) While Plaintiff’s consumption of alcohol and
marijuana is relevant to assess Plaintiff’s state of mind at the time of the
incident, Defendants present no evidence that this information was known to
Officers Blackwood and Maddox when they made the arrest. (UMF 6.) Therefore, it
is immaterial that Plaintiff had consumed alcohol and marijuana before the
arrest for purposes of analyzing the officers’ use of force.
While the court agrees that Officers
Blackwood and Maddox had probable cause to arrest Plaintiff, that they did not
identify themselves or give any prior warning before shoving or tackling
Plaintiff to the ground, that they failed to inform Plaintiff that she was
under arrest, and that she should place her hands behind her back present
triable issues of fact because a jury could find that the amount of force used
was unreasonable under the circumstances.
Defendants do not
dispute that Officers Blackwood and Maddox received training as Public Safety
Officers and that on October 11, 2019, Defendant USC had a policy on Detention,
Arrest, and Restraint Procedure. (UMF 184, 185.) According to the “USC Department of Public
Safety Detention, Arrest and Restrain Procedure(s),” an officer is required to
inform the arrestee about making the arrest:
2. Inform the Arrestee. The PSO
must inform the arrestee that the PSO is making an arrest, what that arrest is
for and the PSO’s authority to make that arrest.
(DCOE Ex. 8 at p. USC-000055.)
The “USC Department of
Public Safety Use of Force Policy” articulates that “[t]he ultimate
objective of every officer encounter is to minimize injury to all those
involved in the incident.” (DCOE Ex. 9 at p. USC-000043.) In determining the
use of force selection, the officer should consider including “[t]he conduct of
the individual being confronted (as reasonably perceived by the PSO at the
time)” and “PSO/suspect factors (age, size, relative strength, skill level,
injury/exhaustion, number of PSOs vs. number of subjects” and whether the
“subject is cooperative and complies with verbal command and other directions.”
(DCOE Ex. 9 at pp. USC-000044- USC-000045.)
The court finds triable
issues of fact exist regarding the third cause of action for negligence.
Officers Blackwood and Maddox failed to inform Plaintiff she was under arrest. There are no facts to indicate that Officers
Blackwood or Maddox tried to assess Plaintiff’s cooperation before deciding to
pin her to the ground and handcuff her. A trier of fact could find that if
Officers Blackwood and Maddox had followed the procedures outlined by Defendant
USC, Plaintiff would have cooperated with the arrest and the amount of force
used would not have been necessary.
Accordingly, summary
adjudication is denied as to the third cause of action.
E. Fifth Cause of Action – Intentional
Infliction of Emotional Distress
“A cause of action
for intentional infliction of emotional distress requires: (1) extreme and
outrageous conduct by [defendants] with the intention of causing, or reckless
disregard of the probability of causing, emotional distress; (2) severe or
extreme emotional distress; and (3) actual and proximate causation of the
emotional distress by the [defendants]’ outrageous conduct. [Citation.] Conduct
is considered outrageous when it is ‘so extreme as to exceed all bounds of that
usually tolerated in a civilized community.’ [Citation.]” (Belen v. Ryan
Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1164.)
Defendants assert
that the conduct of Officers Blackwood and Maddox was
lawful and does not rise to the level of “extreme and outrageous” conduct
necessary to support an IIED claim. The court finds that Defendants fail to
meet their initial burden of showing that no triable issues of material fact
exist such that the fifth cause of action can be adjudicated as a matter of
law. The trier of fact could find that the Officers’ failure to inform
Plaintiff that she was under arrest or provide any warning before confronting
her and, given the fact that the officers were in a position of power over
Plaintiff, constituted a reckless disregard for the probability of causing
Plaintiff emotional distress.
Accordingly, the court cannot
find that a matter of law, Officers Blackwood and Maddox’s conduct was lawful
and not extreme or outrageous. “‘Where reasonable
men may differ, it is for the jury, subject to the control of the court, to
determine whether, in the particular case, the conduct has been sufficiently
extreme and outrageous to result in liability.’ [Citations.]” Summary adjudication
is denied as to the fifth cause of action.
F. First Cause of Action – Violation of the
Bane Act
Civil Code § 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(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
citing Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th
860, 883.)
Since the Bane Act was “enacted with hate crimes in mind,”
the Bane Act “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.” (County Inmate Telephone Service Cases
(2020) 48 Cal.App.5th 354, 372 (“County Inmate”) [internal citations and
quotations omitted].) “The statutory framework of section 52.1 indicates that
the Legislature meant the statute to address interference with constitutional
rights involving more egregious conduct than mere negligence” and “not to
provide relief for an overdetention brought about by human error rather than
intentional conduct.” (Shoyoye v. County of Los Angeles (2012) 203
Cal.App.4th 947, 959 (Shoyoye).) For there to be a violation under the
Bane Act, the plaintiff must make “a showing of coercion independent from the
coercion inherent in the constitutional violation itself.” (County Inmate
at p. 369; see also Shoyoye at p. 958.)
Defendants assert that Plaintiff cannot establish a violation
of her Constitutional rights or state rights because Officer Blackwood had
probable cause to arrest Plaintiff for trespass and he had the authority to use
force to detain and arrest Plaintiff under Pen. Code §§ 835(a) and 836. Even if there was a Constitutional violation,
Plaintiff’s Bane Act claim fails because there is no evidence that Defendant
Blackwood acted with the requisite specific intent.
The Fourth Amendment
protection against unreasonable seizures protects all users from the use of
excessive force during an arrest, detention, or other seizure. (See Graham v. Connor (1989) 490 U.S. 386, 395.) Here, the court found that
triable issues of fact exist regarding the force used to effectuate Plaintiff’s
arrest. (See Yount v. City of
Sacramento (2008) 43 Cal.4th 885,
902 [A “common law battery action, like [a] section 1983 claim, requires proof
that the [defendant officer] used unreasonable force”].) Accordingly, triable issues of fact exist as to whether
Plaintiff’s Fourth Amendment rights were violated.
However, the court finds that Defendants have met their
burden of showing that the conduct of Officers Blackwood and Maddox was not
deliberate or spiteful in arresting Plaintiff. Thus, the burden shifts to
Plaintiff to show triable issues of fact exist regarding the first cause of
action.
Plaintiff asserts that “‘a reckless disregard for a person's
constitutional rights is evidence of a specific intent to deprive that person
of those rights.’ ” (Reese v. County of Sacramento (9th
Cir. 2018) 888 F.3d 1030, 1045 citing U.S. v. Reese (9th
Cir. 1993) 2 F.3d 870, 885.) In Cornell v. City & County of
San Francisco (2017) 17 Cal.App.5th 766, the appellate court found
that the inquiry about the defendant’s intent “is a question of fact” as to
whether the defendant acted with the “particular purpose” of depriving the
plaintiff of their constitutional rights. (Id. at p. 804.) “Subjective
‘spite’ was relevant here, along with all of the objective circumstances
surrounding the unlawful arrest, both before it and after it. But whether the
appellant officers understood they were acting unlawfully was not a requirement.
Reckless disregard of the ‘right at issue’ is all that was necessary.” (Ibid.)
Viewing the evidence in the light most
favorable to Plaintiff, and given that Officer Blackwood’s initial contact with
Plaintiff was not on the body camera footage, Officer Blackwood failed to
identify himself or inform Plaintiff that she was under arrest. (PCOE Ex. B
[Cortez Depo. at p. 91:2-23].) The body camera footage starts when Plaintiff is
already on the ground. The footage shows
Plaintiff stating that she “is not resisting.”
She is told to “relax” while Officers Blackwood and Maddox are trying to
handcuff her, but they gave no instructions to Plaintiff to put her hands
behind her back. It is unclear that
Plaintiff understood that Officers Blackwood and Maddox were trying to handcuff
her. (PCOE G [Part 1 Axon Body 2
Video], PCOE Ex. H [Part 2 Axon Body 2 Video]; DCOE Ex. 6 [Part 2 Axon Body 2
Video], DCOE Ex. 7 [Part 2 Axon Body 2 Video].) At her deposition, Plaintiff
asserted that she did not understand what Officers Blackwood and Maddox wanted
her to do or that they wanted to place her hands behind her back. (Cortez Depo.
at pp. 103:9-104:6.) Plaintiff states: “If I had understood that I was being
handcuffed, I would have complied and let them put the handcuffs on me.”
(Cortez Depo. at pp. 103:24-104:1.)
The court finds that Plaintiff has met
her burden of showing that triable issues of fact exist as to whether Officers
Blackwood and Maddox acted with reckless disregard in arresting Plaintiff
because they used unreasonable force under the circumstances. Therefore,
summary adjudication is denied as to the first cause of action.
G. Sixth
Cause of Action – Violation of the Right of Protection from Bodily Restrain or
Harm
Civ. Code § 43 states:
Besides
the personal rights mentioned or recognized in the Government Code, every
person has, subject to the qualifications and restrictions provided by law, the
right of protection from bodily restraint or harm, from personal insult, from
defamation, and from injury to his personal relations.
Defendants
assert Officers Blackwood and Maddox are not liable for the false arrest cause
of action because Officer Blackwood had probable cause to arrest Plaintiff for
trespass. Defendants further assert that Officers Blackwood and Maddox had the
authority to use to detain and arrest Plaintiff without a warrant because she
was committing a misdemeanor (trespass) in Officer Blackwood’s presence. (Pen.
Code, § 835a(b), 836(a)(1).) Defendants further assert that Officers Blackwood
and Maddox did not insult Plaintiff. Accordingly, Defendants assert they are
entitled to summary adjudication as to the sixth cause of action.
The
court finds triable issues of fact exist as to whether Officers Blackwood and
Maddox used reasonable force in arresting Plaintiff. Moreover, Officer
Blackwood admitted that he told Plaintiff the following:
You are fucking trespassing, bitch. Do
you fucking live here?
(Blackwood
Depo. at p. 75:13-15; PCOE G [Part 1 Axon Body 2 Video], PCOE Ex. H
[Part 2 Axon Body 2 Video]; DCOE Ex. 6 [Part 2 Axon Body 2 Video], DCOE Ex. 7
[Part 2 Axon Body 2 Video].) The trier of fact could find that the explicative
was a personal insult to Plaintiff.
For
the reasons set forth above, the court denies summary adjudication as
to the sixth cause of action.
Conclusion
Defendants’ motion for summary
judgment is denied. Defendants’ motion for summary adjudication is granted as
to the fourth cause of action for false arrest/imprisonment and denied as to
the first cause of action for violation of the Bane Act, second cause of action
for assault and battery, third cause of action for negligence, fifth cause of
action for intentional infliction of emotional distress, and sixth cause of
action for violation of Civ. Code § 43.
Defendants to give notice.