Opinion
B191284
4-17-2008
SUSANNA ASATRYAN, Plaintiff and Appellant, v. MARK SAIKI et al., Defendants and Respondents.
Law Offices of Linton & Bogorad, Tanya K. Linton and Vladimir A. Bogorad, for Plaintiff and Appellant. Edmund G. Brown, Jr., Attorney General, David Chaney, Chief Assistant Attorney General, James M. Schiavenza, Assistant Attorney General, Marsha S. Miller and Paul C. Epstein, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED
SUMMARY
Appellant Susanna Asatryan sued respondents Mark Saiki, Joe Chavez, Veronica Cornejo, and Ricardo Hernandez under 42 U.S.C. section 1983 (section 1983) for violating her civil rights. A superior court judge had issued a felony arrest warrant for Asatryan in connection with an insurance fraud scheme. It turned out that the real culprit was a Sousanna Avetisian, not appellant Susanna Asatryan. Asatryan appeals from the trial courts grant of summary judgment for the individual defendants, who worked for the California State Department of Insurance (CSDI).
The trial court correctly concluded that no genuine issue of material fact exists and that respondents are entitled to judgment. Asatryan failed to establish a section 1983 claim against either the lead investigator on the criminal case or the officers who arrested her. Even if Asatryan could establish such a claim, the defense of qualified immunity would bar it. We therefore affirm.
BACKGROUND
In April 2002, the CSDI began investigating suspected fraudulent automobile accidents and related fraudulent chiropractic treatment and insurance claims. Saiki supervised the investigation.
The investigation revealed that purported accident "victims" were being treated at the Broadway Medical Clinic in Glendale. Two agents (formerly undercover) — Richard Aloise, of the Los Angeles County District Attorneys Office, and Mario Asturias, of the CSDI — went to the clinic for treatment several times each, posing as accident victims. Aloise and Asturias wrote reports detailing what happened during each visit. They submitted their reports to Saiki, who read them and then put them in his investigation file.
Aloise reported he visited the clinic on May 13, 2002. A woman called "Susanna" treated him; she said her last name was "Avetician." On a June 6, 2002 visit to the clinic, Aloise noticed a diploma from a massage institute for "Susanna Avetician, Massage Therapist" on the wall in the treatment room. The woman who treated him that day wore a lab coat bearing the name Susanna Avetician. Aloise reported the woman who had treated him on each visit to the clinic was about 45-50 years old, 55" tall, and 220 pounds.
Asturiass first trip to the clinic was on June 6, 2002. During his first and second visits, a woman identified as "Suzanne" treated him. "Suzanne" was not there when Asturias visited the clinic on July 25, 2002. He asked the receptionist for Suzannes last name. She wrote "Asatryan Susana" on a piece of paper and handed it to Asturias. Saiki put that note in his file.
Saiki searched Employment Development Department (EDD) records; according to those records, no one named "Avetician" worked at the clinic. Saiki also searched Department of Motor Vehicles (DMV) databases. That search produced records, including photographs, for two women: Susanna Asatryan, born November 7, 1946, described as 57" tall and 165 pounds, and Susanna Avetician, born September 21, 1950, described as 5 tall and 160 pounds. Saiki showed the photos of both women to Aloise and Asturias. Both of them identified Asatryan as the woman who had treated them at the clinic.
On March 10, 2003, the Los Angeles County District Attorney filed a 16-count felony complaint naming 15 defendants, including appellant. The complaint charged the defendants with insurance fraud under Penal Code section 550 subdivision (a)(1) as well as related crimes. Saiki submitted a declaration in support of arrest warrants, attaching various reports. Page 12 of the felony complaint stated, "It appearing to the Court that probable cause exists for the issuance of a warrant of arrest for the above-named defendants, for all the charges in this complaint, the warrant is so ordered." Los Angeles Superior Court Judge David M. Mintz signed that order for the warrant and set bail in the amounts listed on page 11 of the complaint. Judge Mintz also signed an order under Penal Code section 1275 regarding bail. The superior courts certified docket shows that the court ordered and issued an arrest warrant for Susanna Asatryan on March 10, 2003.
Several officers went to Asatryans home on the morning of March 11, 2003. She was not there. Her son told the officers she had gone to work at the Los Angeles County Department of Public Social Services (DPSS). Asatryan was arrested at her workplace and booked into the county jail at 4:55 p.m. She vehemently protested, claiming she was innocent and had been misidentified, but her protests were ignored. Respondents Chavez, Cornejo, and Hernandez participated in Asatryans arrest, but played no role in the investigation leading to that arrest.
On March 12, 2003, Asatryans son went to Saikis office to collect his mothers things. He took her passport with him for identification. Saiki showed Asatryans passport photograph to Aloise and Asturias, who happened to be at his office. Both of the agents expressed doubt about whether the woman in the passport photo was the "Susanna" they met at the clinic. Saiki, Aloise, and Asturias immediately went to the jail to see Asatryan in person. When they saw her, Aloise and Asturias said Asatryan was not the woman they had met at the clinic. Saiki called the district attorneys office. An assistant district attorney got a court order at 1:50 p.m. for Asatryans release. Jail personnel released Asatryan from custody that same day, March 12, at about 6:25 p.m.
After Asatryan was released, another CSDI investigator called the clinic and was told that the massage therapists name was Sousanna Avetisian. Saiki had not researched the name with this spelling. Sousanna Avetisian was later arrested, charged, and convicted for her role in the insurance fraud crimes.
Asatryan filed this action alleging state law tort claims against the State of California (State), the County of Los Angeles (County), Saiki, Chavez, Cornejo, and Hernandez. She also asserted a section 1983 claim against all defendants except the State. Because Asatryan had not submitted a timely government tort claim (Gov. Code, §§ 911.2, 915), the State was dismissed from the case. The state law tort claims against the remaining defendants also were dismissed for the same reason.
Respondents moved for summary judgment. They argued Asatryan could not prevail on her section 1983 claim because (1) no federal constitutional violation occurred, as Asatryan was arrested under a valid warrant and her period of confinement was insufficient to give rise to a constitutional claim; and (2) the defendants were entitled to qualified immunity. The trial court held a hearing. The court then invited Asatryan to submit additional briefing on the defense of qualified immunity, and took the matter under submission. In April 2006, the trial court granted the motion and entered judgment in favor of defendants, concluding they were entitled to qualified immunity. This appeal followed.
The County and one individual defendant who had not yet appeared when the summary judgment motion was filed are still parties to the action, which is stayed.
DISCUSSION
Asatryan contends the trial court erred when it granted summary judgment for respondents on the basis of qualified immunity.
1. The standard of review and analytical framework.
Asatryan asserts a claim of false arrest under section 1983 for deprivation of her Fourth Amendment right to be free from unreasonable seizure. Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any . . . person . . . 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 . . . ." Congress enacted the statute " ` "to provide protection to those persons wronged by the misuse of power." [Citation.] [Citation.] Section 1983 creates no substantive civil rights . . ., only a procedural means for their enforcement." (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 342, fn. 3 (Martinez), additional citations omitted.) A plaintiff seeking recovery from a government official under section 1983 must show the official violated a "clearly established" constitutional right. (Saucier v. Katz (2001) 533 U.S. 194, 201 (Saucier); see also Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 840 (Venegas).)
Asatryan argues the trial court was wrong to resolve the question of qualified immunity, because that question raised factual issues for a jury. She is mistaken. " `Qualified immunity is an affirmative defense against section 1983 claims. [Citation.] Its purpose is to shield public officials "from undue interference with their duties and from potentially disabling threats of liability." [Citation.] The defense provides immunity from suit, not merely from liability. [Citation.] Its purpose is to spare defendants the burden of going forward with trial. [Citation.] [Citation.] Because it is an immunity from suit, not just a mere defense to liability, it is important to resolve immunity questions at the earliest possible stage in litigation. [Citations.] Immunity should ordinarily be resolved by the court, not a jury. [Citation.]" (Martinez, supra, 47 Cal.App.4th at p. 342.) "Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Qualified immunity is an `entitlement not to stand trial or face the other burdens of litigation. [Citation.]" (Saucier, supra, 533 U.S. at p. 200.)
The United States Supreme Court has established a framework for analyzing a qualified immunity defense at the summary judgment stage. A court faced with a qualified immunity issue must decide a threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officers conduct violated a constitutional right?" (Saucier, supra, 533 U.S. at p. 201.) If not, no further inquiry is necessary, and the defendant is entitled to summary judgment. (Ibid.; see also Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 144.)
However, if a constitutional violation could be stated were the allegations established, "the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition . . . ." (Saucier, supra, 533 U.S. at p. 201.) "`The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. [Citation.]" (Id. at p. 202; Venegas, supra, 32 Cal.4th at p. 840.) This issue is a question of law, and we review it de novo. (Elder v. Holloway (1994) 510 U.S. 510, 516.)
If the constitutional right was clearly established, we turn to the next inquiry: Did the officer make a reasonable mistake? (Saucier, supra, 533 U.S. at pp. 205-206.) Saucier confirmed that, even in the face of a possible Fourth Amendment violation, officers must be granted immunity "for reasonable mistakes as to the legality of their actions." (Id. at p. 206.) "The question is what the officer reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards." (Id. at p. 208.) Reasonableness is judged based on an objective assessment of the officers actions in light of facts and circumstances that he knew then, not in 20/20 hindsight. (Id. at p. 205; Butler v. Elle (9th Cir. 2002) 281 F.3d 1014, 1021; Hanrahan v. Doling (2d Cir. 2003) 331 F.3d 93.) The question of whether the officers mistake was reasonable also is one of law, which we review de novo. (Hunter v. Bryant (1991) 502 U.S. 224, 228.)
2. Asatryans section 1983 claim against Saiki.
Although not entirely clear from her complaint, it appears Asatryan asserts that Saiki violated her Fourth Amendment right to be free from unreasonable seizure by orchestrating her allegedly warrantless, wrongful, and unlawful arrest and detention. Applying the test the Supreme Court has established, we conclude Asatryan failed to establish a constitutional violation. And, even if she had shown a constitutional violation, the defense of qualified immunity shields Saiki from Asatryans claim.
a. The superior court had issued a valid warrant for Asatryans arrest.
Asatryan maintains Saiki violated her constitutional rights because she was arrested without a warrant or, at least, without a valid warrant. She is mistaken.
i. An arrest warrant was issued.
Asatryan insists that no arrest warrant was ever issued. The trial court properly found otherwise based on the evidence. The record reflects that, on March 10, 2003, Saiki submitted his "Declaration in Support of Arrest Warrant" and supporting materials to the Los Angeles Superior Court (Judge David Mintz) requesting that arrest warrants be issued for Asatryan and the other subjects of the insurance fraud investigation. Those materials identified Asatryan by name, gender, physical description, address, and date of birth. Saiki included the report of his investigation detailing the facts leading to the application for the arrest warrants. The record also contains a copy of the Felony Complaint for Arrest Warrant, signed by Judge Mintz on March 10, 2003, attesting: "It appearing to the Court that probable cause exists for the issuance of a warrant of arrest for the above-named defendants [including Asatryan], . . . the warrant is so ordered." In addition, the record contains a certified copy of the courts docket sheet showing a warrant for Asatryans arrest issued on March 10, 2003, and an order by Judge Mintz setting bail at $60,000.
No one presented to the trial court a separate piece of paper entitled "arrest warrant." (Cf. Pen. Code, § 814 [setting forth form for arrest warrant].) Respondents told the court they did not know why no copy of an actual arrest warrant could be found. When asked by the trial court to explain its absence, county counsel said a thorough search had been conducted. The criminal case file was in disarray. Although returns were found for warrants issued for other defendants, no warrant or return was found for Asatryan. Counsel said it was possible no physical warrant was ever actually issued. Instead, she said, the court may have entered the information — an abstract — directly into the computer system that deputies access in patrol cars. If that were the case, it was likely the abstract would long since have been "pull[ed] . . . from the system . . . ."
The trial court granted respondents request for judicial notice that Judge Mintz had issued a warrant for Asatryans arrest, based on Saikis declaration and the courts minutes and docket entry reflecting that the court had ordered and issued a warrant on March 10, 2003. The court acknowledged Asatryans contention that a warrant never existed. But it found the evidence to the contrary unassailable, and that Asatryan simply had no evidence to support her contention. That the warrant cannot now be found does not mean it never existed; the court saw nothing in the record to give rise to any question that the warrant in fact had issued.
We find no fault with that conclusion. The law "pressume[s] that an official duty has been regularly performed." (Evid. Code, § 664.) This presumption extends to an arrest made under warrant. (People v. Carson (1970) 4 Cal.App.3d 782, 786.) The presumption applies to reliance on electronic communications, and to information received through official channels, including the "collective knowledge" of other agencies. (See United States v. Henley (1985) 469 U.S. 221, 229-230.) In People v. Alcorn (1993) 15 Cal.App.4th 652 (Alcorn), the court held that an abstract from a trial courts docket that referred to issuance of an arrest warrant — although it did not constitute absolute proof of its validity — proved a warrant had issued: "In todays age of electronic communications and computerized record-keeping, the use and reliance on abstracts are a necessary part of the administration of justice." (Id. at pp. 658-660.) (See also Civ. Code, § 43.55, subd. (b) ["a `warrant of arrest regular upon its face includes both . . . [¶ ] . . . [a] paper arrest warrant that has been issued pursuant to a judicial order [and] [¶] . . . [a] judicial order that is entered into an automated warrant system by law enforcement or court personnel authorized to make those entries at or near the time the judicial order is made"].) Federal courts have adhered to the same principle. (See, e.g., Howard v. Regional Transit Authority (N.D. Ohio 1987) 667 F.Supp. 540, 546-547.) Asatryans bare assertion that there was no warrant does not raise a material factual dispute in light of the significant circumstantial evidence reflecting that a warrant was in fact issued. (Cf. Alcorn, supra, 15 Cal.App.4th at pp. 658-659 [discussing significance of abstract and supporting affidavit to provide sufficiently detailed evidentiary basis to enable court to evaluate validity of warrant].)
ii. The facially valid warrant.
The question remains: was the warrant valid? We "look to federal law to determine what conduct will support an action under section 1983." (Berman v. City of Daly City (1993) 21 Cal.App.4th 276, 286; Barry v. Fowler (9th Cir. 1990) 902 F.2d 770, 772 [violation of state law cannot support claim for damages under section 1983 based on illegal seizure in violation of Fourth Amendment].) Under federal law, "all an arrest warrant must do is identify the person sought." (U.S. v. Lauter (2d Cir. 1995) 57 F.3d 212, 215.) In general, no action for false arrest will lie against an officer executing a warrant unless the warrant is grossly defective on its face or was recklessly procured. (Franks v. Delaware (1978) 438 U.S. 154, 171 (Franks).)
Even though it turned out Asatryan was not the person who had been participating in the insurance fraud, the warrant at issue sufficiently identifies her. Asatryan has made no showing that Saiki either left out critical facts or presented any false or misleading information in the application for the warrant. Rather, Saiki presented complete information to Judge Mintz, including information indicating some confusion as to the name of the massage therapist who treated the undercover agents at the clinic. But the finding of probable cause remains sound. Negligent misrepresentations and omissions are not constitutional violations. (Orsatti v. New Jersey State Police (3d Cir. 1995) 71 F.3d 480, 484 [negligent investigation does not undermine probable cause]; Spiegel v. Cortese (7th Cir. 1999) 196 F.3d 717, 724-726, cert. denied, 530 U.S. 1243 (2000) [victims statement provided probable cause, notwithstanding contradictions; there is no requirement that other possible witnesses be interviewed once probable cause is established].) Probable cause to arrest "arises when an officer has knowledge based on reasonably trustworthy information that the person arrested has committed a criminal offense." (Gausvik v. Perez (9th Cir. 2003) 345 F.3d 813, 818 (Gausvik), citing Beck v. Ohio (1964) 379 U.S. 89, 91.) Some evidence suggested that Asatryan was not the proper subject of the investigation. Nevertheless, the record shows Saiki reasonably relied on trustworthy information — including photographic identifications by two experienced investigative agents, a name identification by a purported employee at the clinic whom Saiki had no reason to disbelieve, and a name identification by one of the agents — that Asatryan was a participant in the insurance fraud scheme. (See ibid. [notwithstanding inaccuracies in his affidavit, officers reliance on childrens accounts of sexual abuse, witnesss statement linking plaintiff to other victims, and doctors report suggesting children in question were sexually abused constituted reliance on reasonably trustworthy information that plaintiff committed criminal offense].) The warrant was valid on its face. Asatryan has failed to state a constitutional violation.
Our conclusion that the arrest warrant satisfied the requirements of the Fourth Amendment eviscerates Asatryans claim she suffered a constitutional deprivation of liberty when she was detained for up to 29 hours. An arrest on a facially valid warrant — even if the arrest later is determined to have been a mistake — cannot give rise to a claim for damages under section 1983. (Baker v. McCollan (1979) 443 U.S. 137, 143-144 (Baker).) In Baker, despite his protestations of innocence, the plaintiff was detained for three days over a New Years weekend, until the validity of his protest was ascertained. The Supreme Court explained that "[w]hatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United States Constitution. Respondent was indeed deprived of his liberty for a period of days, but it was pursuant to a warrant conforming . . . to the requirements of the Fourth Amendment." (Id. at p. 144.) Probable cause is the only requirement for a lawful arrest under the Fourth Amendment. (Ibid.)
b. Saiki is entitled to qualified immunity.
Even if we were to assume that Asatryan has stated a clear constitutional violation for deprivation of her liberty interest, the question would remain whether Saiki made a reasonable mistake. If so, the defense of qualified immunity shields him from liability and the court properly granted summary judgment on that basis.
We need not conduct the second part of the inquiry. Asatryans constitutional right to be free from arrest without probable cause was clearly established at the time of her arrest. (See Beck, supra, 379 U.S. at p. 91.)
At the outset, we reject Asatryans effort to cast the issue as one in which the arrest warrant did not identify her with sufficient particularity. As discussed above, there is no question Saiki asked the court for a warrant for Asatryan, or that she is the person for whom the warrant was issued. As the trial court pointed out, this is not a case in which a warrant authorized the arrest of someone else or in which Asatryan was confused with another person because identifying information was missing. Rather, Asatryan maintains she never should have been identified as the person for whom an arrest warrant was issued in the first place and that, if Saiki had done his job properly and conducted a more thorough investigation, he would have discovered she was not a participant in the insurance fraud scheme. This contention sounds in negligence; it will not support a section 1983 claim. (See Gausvik, supra, 345 F.3d at p. 817.) Negligent misrepresentations and omissions are not Franks violations.
Applying the Supreme Courts analytical framework, the pivotal inquiry is whether "it would be clear to a reasonable officer [in Saikis position] that his conduct was unlawful in the situation he confronted." (Saucier, supra, 533 U.S. at p. 202.) Asatryan contends Saiki is liable under section 1983 because he would have known she was the wrong defendant had he not conducted his investigation with deliberate indifference to her liberty rights. Asatryan has mischaracterized the facts.
The principle established in Franks, supra, 438 U.S. 154, governs the standard for qualified immunity in a section 1983 civil rights action against state officers. (Hervey v. Estes (9th Cir. 1995) 65 F.3d 784, 788 and fn. 3 (Hervey).) "Franks established a criminal defendants right to an evidentiary hearing when he made a substantial showing of deliberate falsehood or reckless disregard for the truth in a search warrant affidavit and demonstrated that but for the dishonesty, the affidavit would not support a finding of probable cause." (Id. at p. 788.) "In a civil rights case, `if an officer "submitted an affidavit that contained statements he knew to be false or would have known were false had he not recklessly disregarded the truth and no accurate information sufficient to constitute probable cause attended the false statements, . . . he cannot be said to have acted in an objectively reasonable manner," and the shield of qualified immunity is lost. [Citations.]" (Ibid.) Federal courts have established a heightened pleading standard in cases such as this: the plaintiff must establish "the defendant knowingly or recklessly misled the magistrate." (Ibid., citing Branch v. Tunnell (9th Cir. 1991) 937 F.2d 1382, 1387.) Moreover, even if the plaintiff satisfies this heightened pleading standard, she "must satisfy a still higher standard to survive summary judgment." (Ibid.) "The plaintiff `alleging judicial deception "must make a substantial showing of deliberate falsehood or reckless disregard for the truth" and "establish that, but for the dishonesty, the challenged action would not have occurred." [Citations.]" (Id. at pp. 788-789.)
"In sum, a plaintiff can only survive summary judgment on a defense claim of qualified immunity if the plaintiff can both establish a substantial showing of a deliberate falsehood or reckless disregard and establish that, without the dishonestly included or omitted information, the magistrate would not have issued the warrant." (Hervey, supra, 65 F.3d at p. 789.) The trial court correctly found Asatryan failed the first prong of the test: she "fail[ed] to identify any false statements contained in [Saikis] affidavit or any material omissions of fact."
When he applied for the arrest warrant, Saiki informed the court that two undercover agents, each of whom made multiple visits to the clinic, had viewed photographs of Asatryan and each agent had identified her as the therapist who treated him at the clinic. Saiki also presented evidence that, in response to one agents inquiry about the identity of the absent therapist who had treated him, a woman he believed was a receptionist at the clinic wrote "Asatryan Susana" on a piece of paper and handed it to the agent. In addition to this information specifically related to Asatryan, Saiki also informed Judge Mintz that the therapist at the clinic had identified herself to one agent as Susana Avetician, and that agent saw her wearing a lab coat with that name as well as a diploma for a massage therapist with the same name. The woman was described as Armenian, approximately 45-50 years old, 55" tall, and weighing 220 pounds. Saiki declared he had investigated EDD records. Those records did not reveal that anyone by the name of "Avetician" worked at the clinic. In addition, because the investigation turned up two names, Saiki searched a DMV database for both Asatryan and Avetician, and obtained two photos and information on both women, Asatryan, born in November 1946, and whom the DMV described as 57" tall, 165 pounds, and Avetician, born in September 1950, 5 tall, 160 pounds.
Aloises deposition testimony is consistent with this recitation, as is a declaration submitted by Asturias.
The trial court properly overruled Asatryans objections to this evidence. The document was admissible to show Saiki acted reasonably and in good faith in concluding Asatryan worked at the clinic. (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 13.) Saikis good faith belief is relevant to the defense of qualified immunity.
In opposition to respondents summary judgment motion, Asatryan did not identify any falsehoods or material omissions in the materials Saiki submitted in his warrant application. Rather, she points to information that surfaced after the arrest warrant issued to support her claim that Saiki recklessly disregarded the truth. She notes that she was arrested at the DPSS office where she has worked since 1999, not the clinic where the fraud occurred; that she weighed about 55 pounds less than the woman who treated Aloise; and that she vehemently protested her innocence. Given that Asatryan was identified as working at the clinic in mid-2002, but not arrested until almost a year later, the first two facts do not advance her case. Asatryan could have gained weight between the spring and summer of 2002 and her arrest in 2003, just as she might have changed jobs during that period. Similarly, Asatryan certainly would not be the first person arrested to proclaim her innocence loudly or to claim she had been mistaken for someone else.
Nor is there merit to the contention that, just as an investigator easily identified the correct suspect by calling the clinic after Asatryan was released, Saiki also could have confirmed her identity before she was arrested, or taken the undercover agents to the clinic to make a positive identification. As the trial court noted, neither act may have been a viable option while the undercover investigation continued. Moreover, Asatryan has provided no evidence to show why it was unreasonable for Saiki to believe the photo identifications of Asatryan made by the undercover agents, each of whom had ample opportunity to see the therapists face during multiple visits to the clinic, or that he had any reason to disbelieve the agents account that a receptionist had written Asatryans name on a note when asked to name his therapist.
Evidence Asatryan obtained during discovery that no employee at the clinic recognized the handwriting on the note is not relevant to the probable cause determination.
To defeat the defense of qualified immunity, Asatryan must show Saiki purposefully attempted to mislead the magistrate, or recklessly disregarded the truth of the statements in his affidavit, and that those misstatements were material to Judge Mintzs ultimate determination of probable cause. (Franks, supra, 438 U.S. at pp. 155-156; Hervey, supra, 65 F.3d at p. 789.) Asatryan cannot satisfy this test. Evidence in the record — mostly obtained after Asatryans arrest — does reveal doubt as to whether Asatryan was a proper subject of the investigation, and Saiki might have done a better job of ferreting out that information. But that is not the issue when qualified immunity is asserted as a defense to a section 1983 claim. Even if Asatryan is correct, an inadequate or even a negligent investigation, yielding inaccuracies in the affidavit submitted in support of the application for an arrest warrant, is insufficient to support a section 1983 claim for a Fourth Amendment violation. (Gausvik, supra, 345 F.3d at p. 817.) There is no evidence Saikis affidavit contained intentional misrepresentations or material omissions. Saiki truthfully disclosed all the information that he had to Judge Mintz, including information that the massage therapist who had treated Aloise was named Susanna Avetician, that Saiki had investigated EDD records for this person but found no record that she worked at the clinic, and that two experienced undercover agents, each of whom had been treated on multiple occasions at the clinic by the therapist, each had identified a photograph of Asatryan as the woman they had met. Asatryan has not shown Saiki deliberately or recklessly misstated or omitted facts material to the probable cause determination. Accordingly, he may invoke the complete defense of qualified immunity, and the trial court did not err in granting him summary judgment on that basis.
It certainly appeared easy enough after it was learned that Asatryan had been mistakenly arrested, when an investigators lone phone call to the clinic yielded the correct name and home address for Avetisian. However, as the trial court noted, it is not clear that phone call could have been made before the arrest warrant was issued without jeopardizing the undercover investigation, just as Saiki may not have been able, without risking exposure, to have either undercover officer make an in-person identification at the clinic.
We reject Asatryans assertion that Saiki showed "deliberate indifference" to her constitutional rights by "failing to lift a finger to verify the suspects identity" for nine months before her arrest, or after her arrest but before her release. As discussed above, Saiki did make a reasonable effort, by searching EDD and DMV records to ascertain the correct identity of the massage therapist at the clinic. Apart from information obtained after Asatryans arrest — which is irrelevant to the probable cause determination — she has made no showing as to why Saiki had reason to disbelieve or should have disbelieved the information obtained by his experienced investigators, or to believe no probable cause existed for issuance of a warrant. As for Saikis conduct immediately after Asatryans arrest, apart from her claims of innocence and mistaken identity, the record contains no evidence he had any reason to question whether he had the right person until he happened to show Asatryans photo to the agents and they expressed doubts about whether the right person had been arrested. At that point, Saiki and the agents immediately went to see Asatryan in person and, when they learned she was not in fact the proper suspect, Saiki took quick and definitive steps to secure her prompt release.
3. The arresting officers have no liability.
Asatryan maintains officers Chavez, Cornejo, and Hernandez are liable under section 1983 because they had a duty to conduct further investigation at the time of arrest once she protested her innocence; they did not have a copy of the arrest warrant with them at the time she was arrested; and they did not know if a warrant had been issued. The trial court granted summary judgment in favor of the officers on the ground they "merely executed the arrest warrant issued by the judge." That ruling was correct.
As discussed above, in a section 1983 action such as this, involving a defective but facially valid arrest warrant, the only requirement is that there be probable cause for the arrest. An arrest under a warrant is immune from a Fourth Amendment false arrest claim, unless the warrant is itself grossly defective on its face or it was recklessly procured. (Franks, supra, 438 U.S. at p. 171.) We already have established that neither of these exceptions applies here. The warrants issuance established probable cause. (Kladis v. Brezek (7th Cir. 1987) 823 F.2d 1014, 1018.) In a perfect world the officers would have a copy of the warrant in hand and inform arrestees of the charges against them, but the Fourth Amendment does not require them to do so. (Ibid.) Once probable cause has been established, an officer is not required to test an arrestees claim of innocence. As the Supreme Court has stated:
"Given the requirements that arrest be made only on probable cause . . ., we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence . . . . Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim. The ultimate determination of such claims of innocence is placed in the hands of the judge and the jury."
(Baker, supra, 443 U.S. at pp. 145-146; see also Spiegel v. Cortese, supra, 196 F.3d at p. 724 ["Many putative defendants protest their innocence, and it is not the responsibility of law enforcement officials to test such claims once probable cause has been established. [fn. omitted].") The basic principle underlying this rule is that officers are duty-bound to execute court orders and should not be held liable for doing so. (See 1 Silver, Police Civil Liability (2006) § 4.04, pp. 4-17-4-18.)
Lopez v. City of Oxnard (1989) 207 Cal.App.3d 1 is instructive. There, as here, "[t]he trial court took judicial notice of the warrant and found it to be regular." (Id. at p. 8.) In both cases, the warrant — actually presented there and established here by circumstantial evidence — "accurately described [the subject], and included [her] proper name, address, [and] telephone number . . . ." (Ibid.) The officers were not obligated independently to test plaintiffs claims of innocence. (See also Romero v. Fay (10th Cir. 1995) 45 F.3d 1472, 1476-1478 [once probable cause is established, officers failure to investigate alibi witnesses is immunized].) Moreover, had the officers taken the additional steps Asatryan urges and verified her identity, they only would have confirmed that she was, in fact, the individual named in the warrant whom they were to detain. Even under California law, to establish liability for false imprisonment, a plaintiff must show that the officer actually knew a detention was unlawful or that the officer was sufficiently on notice that, as a reasonable person, he or she was under a duty to verify the validity of a persons detention. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719.) In this case, there is no evidence the arresting officers knew or had any reason to know of the illegality of Asatryans detention. Summary judgment was proper.
DISPOSITION
The judgment is affirmed. The respondents are to recover their costs on appeal.
We concur:
RUBIN, Acting P. J.
FLIER, J.