Judge Gail Killefer, Case Number: 22STCV20234, Date: 2025-04-02 Tentative Ruling

OPPOSING PARTY: Defendants University of Southern California; Phalann Blackwood an individual; and Carlos Maddox

PROCEEDING: Motion for Reconsideration of the February 21, 2024 Order Granting Summary Adjudication as to the Fourth Cause of Action for False Arrest

TENTATIVE: On its own Motion, the court reconsiders the February 21, 2024, Order granting summary adjudication as to the fourth cause of action and now denies summary adjudication as to the fourth cause of action.

This action arises out of the interaction on October 11, 2019, between Liliana Cortez (“Plaintiff”) and Defendants, 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 came before the court on February 21, 2024. After hearing argument, the court took the matter under submission and denied the motion for summary judgment on all causes of action except for the fourth cause of action for false arrest/imprisonment, which the court granted.

On January 15, 2025, Defendants filed Motion in Limine No. 1 to exclude evidence or argument that Plaintiff’s arrest was unlawful, including evidence related to damages stemming only from Plaintiff’s arrest. In opposing the motion in limine, Plaintiff argued once again that Officer Blackwood did not have probable cause to arrest Plaintiff. After considering Defendants’ Motion In Limine No. 1, and discussion with counsel, the court invited Plaintiff to brief the issue for reconsideration under Le Francois v. Goel (2005) 35 Cal.4th 1094.

Plaintiff filed her motion for reconsideration of the February 27, 2024 Order on February 10, 2025. Defendants oppose the Motion. The matter is now before the court.

motion for reconsideration

In Le Francois v. Goel (2005) 35 Cal.4th 1094, the California Supreme Court held “ that sections 437c and 1008 limit the parties' ability to file repetitive motions but do not limit the court's ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.” (Id. at p. 1107.) “ Section 437c, subdivision (f)(2), can easily be so interpreted” as “as imposing a limitation on the parties' ability to file repetitive motions, but not on the court's authority to reconsider its prior interim rulings on its own motion.” (Id. at p. 1105.)

Plaintiff requests reconsideration of this court’s February 21, 2024 Order granting summary adjudication in favor of the Defendants as to the fourth cause of action for False Arrest/Imprisonment (the “MSJ Order”). (See Order, 2/21/2024.)

Plaintiff seeks reconsideration pursuant to Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois) and not CCP § 1008. CCP § 1008(b) would allow Plaintiff to seek reconsideration of the MSA Order based on new facts or newly discovered evidence, if Plaintiff was diligent in uncovering the new facts or evidence. The burden under Section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that Section 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].)

Le Francois held that a court “on its own motion” may “reconsider its prior interim orders so it may correct its own errors” and not those of the parties before it. (Le Francois, 35 Cal.4th at p. 1107 [italics added].) Absent a motion for reconsideration under section 1008(b), the court cannot reconsider the MSJ Order with the benefit of newly acquired evidence, such as the deposition transcripts of Fermin Alvarez or Plaintiff’s expert Jeffrey J. Noble, because Plaintiff failed to show why he was not diligent in presenting such evidence in opposing the MSJ Order.

“Unless the requirements of section 437c, subdivision (f)(2), or 1008 are satisfied, any action to reconsider a prior interim order must formally begin with the court on its own motion.” (Id. at p. 1108.) Therefore, court cannot, on its own motion consider Plaintiff’s newly acquired evidence in reconsidering the MSJ order because Plaintiff has not complied with the requirements of section 1108. The court may only reconsider the MSJ Order based on the evidence that was before it at the time it decided the MSJ and not based on any newly acquired evidence that Plaintiff was dilatory in presenting.

A. Whether Defendants Blackwood and Maddox Had Probable Cause to Arrest Plaintiff

According to Defendants’ Undisputed Material Fact (“UMF”) No. 49, Plaintiff was arrested for violating Pen. Code § 602(o)(1), which states in relevant part:

[A] person who willfully commits a trespass by any of the following acts is guilty of a misdemeanor:

(o)(1) Refusing or failing to leave land, real property, or structures belonging to, or lawfully occupied by, another and not open to the general public, upon being requested to leave by (1) a peace officer at the request of the owner, the owner's agent, or the person in lawful possession, and upon being informed by the peace officer that they are acting at the request of the owner, the owner's agent, or the person in lawful possession, or (2) the owner, the owner's agent, or the person in lawful possession.

Under this standard, Defendants must have had a reasonable basis to believe that Plaintiff (1) refused or failed to leave but only upon (2) a request to leave. Although there are other provisions in Pen. Code § 602 that do not require Plaintiff to be asked to leave, Defendants based their probable cause solely on subsection (o)(1).

The Declaration of Officer Phalann Blackwood states that he “heard a security guard at the Alpha Chi Omega house, who was later identified as Aliakbar Askarianzokea, tell two people to leave the property. After hearing the security guard, I walked over to the Alpha Chi Omega house to investigate the situation.” (Blackwood Decl., ¶ 12.) He further asserts that “Alpha Chi Omega security guard Askarianzokea flagged me down regarding two trespassers on the property” but does not elaborate on what the security guard said to him. (Id. ¶ 13.)

Officer Blackwood asserts that after observing Plaintiff hugging the tree on the property “I advised both Plaintiff and Alvarez they were being detained pending a trespass investigation.” (Id. ¶ 14.)

“I asked Plaintiff if she lived at the Alpha Chi Omega house, but Plaintiff was uncooperative and did not provide a clear answer.” (Blackwood Decl., ¶ 16.) “Due to Plaintiff’s age, the time of night, and Plaintiff’s uncooperative behavior, I had a reasonable belief that Plaintiff was trespassing on the property.” (Id. ¶ 17.) “I advised Plaintiff she was being detained for a trespass investigation, but Plaintiff refused to comply and attempted to flee the scene with her bicycle. When Plaintiff attempted to flee the area, I formed the belief she was committing a crime and decided to handcuff her in order to complete my investigation to prevent her from leaving.” (Id. ¶ 18.) In response to Plaintiff’s attempt to flee the scene, I gave verbal commands to Plaintiff to drop her bicycle, but Plaintiff refused to comply and still attempted to flee.” (Id. ¶ 19.) The rest of Blackwood’s testimony alleges that he tried to restrain Plaintiff and Plaintiff resisted arrest. (Id. ¶¶ 20 -33.)

As set forth in section 602(o)(1), a trespass only occurs after a party refuses or fails to leave upon the owner’s or owner’s agent’s request. Here, it is unclear whether the security guard told Plaintiff to leave the property. Officer Blackwood testified that that he heard a security guard say: “Get off the property.” (PCOE Ex. D [Blackwood Depo. at p. 26:13-14].) Plaintiff testified, however, that she did not notice any security guard in the vicinity, and during that time no one said anything to her. (PCOE Ex. B [Cortez Depo. at p. 67:4-22].)

Q: When did you first learn there was anyone in the vicinity that wanted you to stop hugging the tree?

A: The moment the officer came up behind me and grabbed me and pulled me from my right shoulder, pulled me back, yanked me off the tree, and said, Are you homeless? Are you lost?

(Id. at p. 71:3-9.) In evaluating the testimony of Plaintiff and Officer Blackwood, the court is mindful that it “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.)

Assuming the security guard told Plaintiff to leave the property, it is also unclear how much time elapsed between his directive, heard by Officer Blackwood, and Officer Blackwood arriving at the Property, such that Plaintiff had a reasonable opportunity to leave and failed to do so by the time Officer Blackwood arrived and prevented her from leaving. Officer Blackwood states that when he first approached Plaintiff and her companion, his first instruction to them was “to come over to me and turn around and face the house.” (Id. at p. 40:13-21.)

(Id. at p. 42.) He admits that he did not tell Plaintiff to leave or give her an opportunity to leave. (Id. at p. 40.) It is unclear how much time elapsed between Officer Blackwood hearing the security guard tell Plaintiff to leave and Officer Blackwood arriving at the Property, such that Plaintiff had a reasonable opportunity to leave and had failed to do so at the time Officer Blackwood arrived.

Finally, Officer Blackwood’s Declaration raises the inference that he decided to detain Plaintiff for questioning, thus preventing Plaintiff from leaving, when he formed his “suspicion” of criminal activity. “When Plaintiff attempted to flee the area, I formed the belief she was committing a crime and decided to handcuff her in order to complete my investigation to prevent her from leaving.” (Blackwood Decl., ¶ 18.) Officer Blackwood testified he had a reasonable suspicion to believe Plaintiff was trespassing based on his observation and experience:

A: 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 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.

(Id. at p. 46:2-12.) This testimony does not support the argument that Plaintiff was arrested because she was asked to leave the property and failed to do so.

Under Pen. Code § 601(o)(2), Plaintiff’s conduct is only prohibited by law if she is asked to leave and she either refuses or fails to leave. The court finds triable issues of fact as to whether Plaintiff was (1) asked to leave by a security guard and, if she was, (2) was she given enough time to leave or was she detained and arrested before being given a reasonable time to leave.

B. Whether Defendants Blackwood and Maddox are Immune from Liability under Pen. Code § 847

Defendants further claim that they are immune from a false arrest claim because the arrest was pursuant to a citizen’s arrest under Pen. Code § 847(b)(3):

2. When the person arrested has committed a felony, although not in his presence.

3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.

(b) There shall be no civil liability on the part of, and no cause of action shall arise against, any peace officer or federal criminal investigator or law enforcement officer described in subdivision (a) or (d) of Section 830.8, acting within the scope of his or her authority, for false arrest or false imprisonment arising out of any arrest under any of the following circumstances:

(1) The arrest was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.

(2) The arrest was made pursuant to a charge made, upon reasonable cause, of the commission of a felony by the person to be arrested.

(3) The arrest was made pursuant to the requirements of Section 142, 837, 838, or 839.

Defendants claim they are immune from liability because the security guard for the Property, Aliakbar Askarianzokea, flagged Officer Blackwood down, but the deposition testimony of Officer Blackwood only reflects that he heard a security guard tell someone to leave. (UMF No. 16; Blackwood Decl. ¶ 13.)

Moreover, the citizen’s arrest form was never offered as evidence in this Motion by either Party[1]. Second, the police report also stated that “Askarianzokae was desirous of prosecution for trespass on Alvarez and Cortez” but the report does not explain why. (PCOE Ex. A.)While the court understands that due to the security guard’s health, there is no declaration or testimony by the security guard as to what he heard and witnessed on the night of the incident, this lack of evidence raises triable issues of fact as to the lawfulness of Plaintiff’s arrest. “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.)

For the reasons set forth above, the court finds triable issues of fact as to whether Defendants are immune from liability under Pen. Code § 847(b)(3).

On its own motion, the court reconsiders the February 21, 2024 MSA Order granting summary adjudication as to the fourth cause of action and now denies summary adjudication. The court recognizes that Defendants will be prejudiced by the granting of this Order, but prejudice is not a factor the court may consider in reconsidering its prior interim order pursuant to Le Francois.

On its own Motion, the court reconsiders the February 21, 2024 Order granting summary adjudication as to the fourth cause of action and now denies summary adjudication as to the fourth cause of action.

[1] Plaintiff asserted that Defendants had failed to produce the citizen’s arrest form, while Defendants assert they produced all responsive documents in their possession and that Plaintiff was instructed that the form was in the possession of the Los Angels Police Department due to the Memorandum of Understanding with said department. (See Defendants’ response to Plaintiff’s Additional Facts No. 31; Oyster Supp. Decl., ¶ 3.)