Judge Robert S. Draper, Case 18STCV01900 2022-08-29 Tentative Ruling

On December 16, 2017, Plaintiff Dermot Givens (“Givens”) went to the Hollywood Division of the Los Angeles Police Department to file a police report regarding an incident with his neighbor, Rhett Lesslie (“Lesslie”). (Compl. ¶ 6.) While there, officers arrested Givens for misdemeanor violation of a restraining order. (Ibid.) Givens had not been served with said restraining order. (Ibid.) Officers failed to investigate the matter to determine if the restraining order was valid. (Ibid.)

Givens had a valid restraining order against Lesslie, while Lesslie failed to serve Givens with the restraining order against him. (Compl. ¶¶ 8-9.)

On October 29, 2018, Givens filed the Complaint asserting four causes of action:

1. Negligence Per Se Consisting of False Arrest Without Probable Cause in Violation of PC 836(a) and (c);

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, subds. (c), (d), and (h).)

Evidence Code Section 452 provides that judicial notice may be taken for facts 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.” (Cal. Evid. Code § 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)

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. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.” (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).)

The party requesting judicial notice must (a) give each adverse party sufficient notice of the request to enable the adverse party to prepare to meet the request and (b) provide the court with sufficient information to enable it to take judicial notice of the matter. (Cal. Evid. Code § 453.)

a. The Temporary Restraining Order filed with the Superior Court of California, County of Los Angeles on December 5, 2017. (Ex. 1.)

b. The Proof of Service filed with the Superior Court of Los Angeles, County of Los Angeles on December 11, 2017, Case No. 17STRO04856. (Ex. 2.)

The City’s Objections to the Declaration of Dermot Givens numbers one, two, and three are SUSTAINED.

The City moves for Summary Judgment of the entire action, or in the alternative, Summary Adjudication of each cause of action.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Neither a moving nor responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)

The City argues, first, that the Complaint is globally defective as the arresting officers, Nicholas Grace (“Grace”) and Chas Maloch (“Maloch”, and together with Grace, the “Arresting Officers”), had probable cause to arrest Givens as a matter of law. As “where a plaintiff was arrested on probable cause by a peace officer with statutory authority to effectuate the arrest . . . the arrest cannot form the basis for a cause of action in tort,” a finding of probable cause by the arresting officers would be fatal to each cause of action here. (Johnson v. Lewis, 120 Cal.App.4^th 443, 455 (2004).

“There is probable cause to arrest when the facts known to the arresting officer would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that an individual is guilty of a crime.” (People v. Lewis (1980) 109 Cal.App.3d 599, 607; People v. Harris (1975) 15 Cal.3d 384, 389.) “The existence of probable cause depends upon facts known by the arresting officer at the time of the arrest.” (People v. Miller (1972) 7 Cal.3d 219, 225.) “Probable cause may exist even though there may be some room for doubt. [Citations.]. . . The test in such a case is not whether the evidence upon which the officer made the arrest is sufficient to convict but only whether the prisoner should stand trial.” (People v. Fischer (1957) 49 Cal.2d 442, 446.)

Where the facts are not in conflict, the issue of probable cause is a question of law. (Giannis v. City and County of San Francisco (1978) 78 Cal.App.3d 219, 225.)

Here, Givens was arrested for Violation of a Court Order contrary to Penal Code section 273.6(a).

1) A court lawfully issued a written order that [Givens stay fifteen yards away from the home and person of Rhett Lesslie and to not disturb his peace];

2) The court order was a [stay-away] order issued under [Cal Code of Civ. Proc. Sec. 527.6];

5) [Givens] intentionally violated the court order. (CalCrim No. 2701: Violation of a Court Order: Protective Order or Stay Away.)

Here, the City has proffered the following evidence to demonstrate that the Arresting Officers had probable cause to arrest Givens for violating Penal Code section 273.6(a).

1) The Los Angeles Superior Court issued a written restraining order in Case No. 17STRO04856 that required Givens to stay 15 yards away from the home and person of Rhett Lesslie and to not disturb his peace. (UMF 3.)

2) The restraining order was a stay away court order issued under Cal. Code of Civ. Proc. Sec. 527.6. (UMF 4.)

3) Lesslie provided Officer Grace with a copy of the proof of service for same restraining order. (UMF 5.)

5) Two witnesses informed Grace that Givens violated the restraining order by taking a knife to the breaker box in the garage of Unit B and by beating on Lesslie’s bedroom door on the night in question.

By presenting evidence demonstrating that the Arresting Officers had probable cause to believe that Givens committed a crime on the night of his arrest, the City has met its initial burden of showing the nonexistence of any triable issue of material fact regarding the arresting officers’ probable cause to arrest Givens on the night in question.

First, Givens argues that Lesslie should not be allowed to testify, as “if Leslie [sp] is allowed to testify, his lack of credibility will be established on cross examination by his multiple prior false statements in 4 TRO cases, 1 UD case and one unlimited civil case.” (Opposition at p. 2.)

This argument is unavailing for two reasons. First, because on summary judgment, it is improper for the Court to make credibility determinations. (Kyle v. Carmon (1999) 71 Cal.App.4^th 901, 907-08.) Second, because Givens provides no material evidence demonstrating what these “prior false statements” were, or the context in which they occurred.

Next, Givens argues that the Arresting Officers did not use reasonable diligence in determining whether Givens received notice of the restraining order. Givens cites to Penal Code section 836(c)(2), which states:

The person against whom a protective order has been issued shall be deemed to have notice of the order if the victim presents to the officer proof of service of the order, the officer confirms with the appropriate authorities that a true copy of the proof of service is on file, or the person against whom the protective order was issued was present at the protective order hearing or was informed by a peace officer of the contents of the protective order.

Givens contends that, as the Arresting Officers did not verify the veracity of the proof of service, the Officers did not have probable cause to believe Givens had been served. However, this ignores that a person is deemed to have notice of the order when the “victim presents to the officer proof of service of the order. . .”

Here, the City provides evidence showing that Lesslie provided Grace with a copy of the proof of service (UMF 5), therefore the statute Givens cites to explicitly states that Givens was deemed to have notice of the restraining order upon arrest.

Finally, Givens argues that the Arresting Officers lacked probable cause, as the Temporary Restraining Order was dismissed, and the Court did not issue a restraining order due to failure to serve the TRO. (Givens Decl.)

As the City notes in its Reply, the Court dismissed the restraining order a week after the arrest. However, a reasonable jury could find that the later dismissal of the temporary restraining order is evidence that there was reason to believe the proffered proof of service was faulty, and that it demonstrates that more attention was due at the scene of the arrest to establish probable cause.

Accordingly, Givens has provided evidence showing that there is a triable issue of material fact as to whether the Arresting Officers had probable cause to arrest Givens on the night in question.

In addition, as the City’s arguments as to why each individual cause of action should be dismissed, and as to why the City is immune from the instant lawsuit, are predicated on either probable cause or reasonable suspicion being found as a matter of law, those arguments fail as well.

[1] The Court notes that Givens failed to file a Separate Statement or a Compendium of Evidence with his Opposition. “The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.) However, as the Court finds that Givens’ failure to file a separate statement does not prejudice the City, the Court considers Givens’s arguments on the merits.

Superior Court of California

County of Los Angeles

Department 78