Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC050190 Patrick T. Madden, Judge.
Janicemarie Allard for Plaintiff and Appellant.
Robert E. Shannon, City Attorney, and Cristyl Meyers, Deputy City Attorney, for Defendants and Respondents.
ASHMANN-GERST, J.
In 2006, appellant Marquis Meloncon (Meloncon) was apprehended for burglary by Long Beach police officers, using a canine unit. He now appeals from the summary judgment granted against him and in favor of defendants, City of Long Beach (City), Joseph Valenzuela (Valenzuela) and Andrew Fox (Fox) (collectively defendants), on Meloncon’s complaint, the gravamen of which is that he suffered injuries by reason of the officers’ use of excessive force in failing to promptly call off the canine unit after he had been subdued. As to the state causes of action, the motion was made primarily on the ground that Meloncon had failed to comply with the Tort Claims Act (Act) before filing his lawsuit and, as to the federal civil rights cause of action, on the grounds that it was not pled with particularity, the police officers had qualified immunity and the City had no liability under Monell.
Monell v. New York City Department of Social Services (1978) 436 U.S. 378 (Monell).
Meloncon contends that (1) his complaint to the Long Beach Police Department (Department) was in substantial compliance with the claim filing requirements of the Act, (2) defendants are estopped from claiming that he did not properly file a government claim, (3) defendants waived their claim that he did not properly file a government claim, and (4) summary judgment was improperly granted on his federal cause of action.
The judgment is reversed with directions.
FACTUAL AND PROCEDURAL BACKGROUND
The undisputed facts are taken from the evidence presented in support of the summary judgment motion.
The incident
The uncontested facts regarding the incident underlying this lawsuit are as follows: On September 15, 2006, City Police Officers Fox and Valenzuela responded to a residential burglary call. At the scene, the officers identified themselves and requested that anyone hiding in the yard surrender to police before a police dog was released. Having received no response, they released the dog, which located Meloncon hiding. He was arrested for residential burglary, to which he pled nolo contendere and was sentenced to four years in prison.
The operative complaint
Meloncon’s operative complaint (amended complaint) contains causes of action for negligence, intentional infliction of emotional distress, battery and state and federal civil rights violations. It alleges that: the Department is an agency of the City; Valenzuela and Fox are police officers employed by the Department; the officers used excessive force against Meloncon; and Meloncon filed a claim with the Department, detailing his grievance and complying with the Act.
The claim form that was alleged to have been submitted was entitled “Complaint Control Form, Citizen Police Complaint Commission of Long Beach” (complaint form), dated March 14, 2007, and was attached as an exhibit to the amended complaint and incorporated in it by reference. It contained Meloncon’s name, address, and phone number, the location of the occurrence, the names and badge numbers of Officers Fox, Valenzuela and Garcia and described the incident as follows: “Officer Fox directed Officer Valenzuela to deploy his canine, in searching for a burglary suspect. The canine made contact with my arm. It continued to gnaw, chew and bite my arm, causing serious injury to my arm which required me to be hospitalized and treated. I was not resisting arrest and was fully cooperative. Officer Valenzuela used excessive force, in violation of my rights, by failing to order the canine off of me. He let the canine continue to chew my arm for several minutes, unnecessarily. The other officers present did not intervene, and simply allowed the attack to continue. I suffer continuing pain and scarring.” The amended complaint alleged that the complaint form was submitted in reliance on that fact that the form was provided by the Department, thereby estopping defendants from asserting the Act as a defense and/or constituting a waiver by defendants of that defense.
In response to submission of the complaint form, Meloncon received a letter from the Department, dated March 20, 2007, acknowledging receipt of the Meloncon’s “complaint of misconduct on the part of a Police Department employee, ” and stating that a thorough investigation would be made, a final disposition date could not be determined, and that he would be notified when the determination was made.
On August 27, 2007, Meloncon filed this action.
The summary judgment motion
Defendants filed a motion for summary judgment and, alternatively, summary adjudication, claiming that all of the state causes of action were barred because Meloncon failed to present a governmental tort claim to the clerk, secretary or auditor of the City, as required by Government Code section 915, subdivision (a), within six months of the accrual of his causes of action (§ 911.2) and before filing this lawsuit. They claimed that the federal civil rights cause of action was not pled with particularity, the police officers had a qualified immunity and there was no liability on the part of the Cityunder Monell.
All further statutory references are to the Government Code unless otherwise indicated.
In support of the motion, Valenzuela’s declaration was submitted, stating that on September 15, 2006, he responded to a residential burglary, he and his partner identified themselves, requested anyone hiding to surrender before a police dog was released, and, receiving no response, released the dog. The dog located Meloncon under a piece of plywood, and he was arrested.
Valenzuela’s report, an exhibit to his declaration, stated that when he saw his canine by the plywood doing a pulling motion, Valenzuela moved up from his position of cover to get a better look. He saw that the dog had made contact with Meloncon’s arm. The officer yelled to Meloncon to stand and show himself. Meloncon complied. The officer approached him, grabbed the plywood and threw it to the ground and ordered Meloncon to the ground on his stomach. As other officers covered Meloncon, Valenzuela approached the dog and removed it from Meloncon’s right arm.
Also supporting the motion for summary judgment was the declaration of Kathy Garvin, an assistant City Clerk, in the Office of the City Clerk, who stated that the clerk was the custodian of records for the City and received and maintained governmental claims filed against the City. The City Clerk also acted as the secretary for the City. She searched the records of the City Clerk on March 25, 2009, to determine if Meloncon had filed a governmental claim and found no such records from the period September 15, 2006, through June 9, 2008. She consulted with the custodian of the Office of the City Auditor and confirmed that that office had not received such a claim.
The opposition to summary judgment
Meloncon’s opposition to the summary judgment motion disputed only that he failed to properly present a governmental tort claim. The opposition was supported by the declaration of Meloncon’s attorney, Janicemarie Allard (Allard), which states that: Allard had telephoned the Department and told the person answering that she wanted to lodge a claim against the Department because her client “had been chewed on by a police-pursuit dog;” Allard requested a claim form; the person with whom she was speaking faxed her one that the City now says it does not consider a claim form; the City “misrouted plaintiff Meloncon’s claim, ” which the City used as a basis for denying that a claim was filed; the form Allard received was considered by the City as a complaint form, not a governmental claim form; as a result, Allard states, the City now claims that Meloncon was barred from making a monetary claim; the location of where to submit the form when completed was provided by the person to whom Allard spoke, and its content and sufficiency were the results of the questions in the form itself; the form contained information identifying Meloncon, and his address and contact person as well as the nature of the claim and damages were described in complete detail; no amount of damages was stated because Meloncon’s pain and suffering was speculative and would not aid in evaluating his claim; officers took Meloncon to the hospital and no bill had yet been received for treatment and so no amount for medical bills could have been provided; and the form submitted by Allard contained all of the facts within the possession of Meloncon related to the claim and substantially complied with the California Governmental Claims Act.
With respect to the federal civil rights claim, Allard’s declaration states that the right to make a claim against a public entity for injury caused by such entity is a civil right, and the “mis-routing” of the form resulted in Meloncon’s being deprived of his civil rights.
The declaration concludes that Meloncon, through his counsel, reasonably relied on the verbal information provided by the person at the Department, who was authorized by the City to give information regarding claim forms against the City.
In a supplemental declaration filed by Allard, she states that she brought the complaint form to the police station. Because the form looked different than the county claim form, she asked the person receiving the form “if there was another form for making a claim.” Allard was told it was the only form. She later received a call from someone identifying himself as a person from the City of Long Beach investigating the claim, asking to interview Meloncon. The man asked her the amount of the medical bills and of the claim, and was told that they did not know at that time.
Trial court ruling
The trial court granted the motion for summary judgment, stating: “I believe in this case the evidence is that the plaintiff did not properly file or timely file the government claim to the clerk or city auditor of the City.... And I believe that the contention that there had been substantial compliance does not carry the day. I don’t believe that the information given to the... Department should be imputed to the City..., and I don’t believe it created a duty on the... Department to forward the claim to the City.... And there is no evidence that in fact a claim form to the Internal Affairs Department was in fact forwarded. [¶] In fact, the-I just don’t believe there is a triable issue of fact to go forward on the contention, estoppel, waiver or substantial compliance with the fourth cause of action, which is not subject to the Government Tort Claims Act. I don’t believe that the facts in this case are sufficient to set forth a cause of action against the officers of the [C]ity. [¶] The claim is the officers used excessive force. The defendant submitted evidence that suggests the officers did not use excessive force. That’s in separate statement numbers 26 through 31. I don’t believe there is any evidence submitted by the plaintiff to show that the officers acted with excessive force, such as verbally instructing the dog to attack... the plaintiff’s arm after he was subdued, encouraging the dog to continue biting, chewing or gnawing or failing to give the order of release to the animal.”
DISCUSSION
I. Standard of review
A trial court properly grants summary judgment where “no triable issue as to any material fact [exists] and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the “action has no merit or that there is no defense.” (Code Civ. Proc., § 437c, subd. (a).) “‘“The pleadings define the issues to be considered on a motion for summary judgment.”’” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1355.) “We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
II. The governmental tort claim filing procedure
No suit for money or damages may be maintained against a governmental entity unless a formal claim has been presented to such entity and has been rejected. (§§ 945.4, 912.4; see also Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) Claim filing is similarly required for alleged civil rights violations under California law. (See Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 764.) Compliance with the claims statutes is mandatory. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.)The failure to comply bars claims against both the public entity and against public employees. (§ 950.2.)
The Act requires that a “claim relating to a cause of action for death or for injury to a person [must] be presented... not later than six months after the accrual of the cause of action.” (§ 911.2.) It must be presented “to a local public entity by either of the following means. [¶] (1) Delivering it to the clerk, secretary or auditor thereof. [¶] (2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office” (§ 915, subds. (a), (a)(1), (a)(2)) and must include (a) the name and address of the claimant, (b) the address which the person presenting the claim desires the notices to be sent, (c) the date, place and circumstance of the occurrence giving rise to the claim, (d) a general description of the injury, damage or loss incurred so far as it may be known, (e) the name or names of the public employee or employees causing the injury, damage of loss, if known, and (f) the amount claimed if it totals less than $10,000 as of the date of presentation of the claim and an estimate of any prospective injury damage or loss, unless the amount exceeds $10,000, in which case no dollar amount is to be included in the claim. (§ 910.)
III. There are no triable issues of fact as to the state causes of action
A. Background
Defendants’ motion for summary judgment was made on the grounds that Meloncon failed to file a government tort claim with the clerk, secretary or auditor for the City and that filing the complaint form with the Department did not comply with statutory requirements. The trial court granted the motion as to all but the federal civil rights cause of action based on its finding that a proper claim was not filed with the statutorily identified persons.
B. Contention
Meloncon contends that filing the complaint form with the Department constituted substantial compliance with the Act, and, in any event, if it did not, defendants should be precluded by the doctrines of estoppel and/or waiver from relying on the tort claims statutes.
C. Substantial compliance
The original requirement of strict compliance with the claim filing requirements under the Act has given way to the rule requiring only substantial compliance. (Sheeley v. City of Santa Clara (1963) 215 Cal.App.2d 83, 85.) Meloncon argues that his submission of the complaint form to the Department constituted substantial compliance with the filing requirements of the Act. We disagree.
Particularly instructive is Tyus v. City of Los Angeles (1977) 74 Cal.App.3d 667 (Tyus). There, a section 946.6 petition for relief from the failure to file a timely claim as a condition precedent to the filing of a damage or personal injury complaint was submitted. (Tyus, supra, at p. 669.) The petitioner argued that letters he wrote to the board of police commissioners and mayor should have been construed as a claim and that the city’s responses to these letters should estop it from relying upon the claims statutes. (Ibid.) The letter to the mayor, and presumably to the board (the letter to the board was not included in the record on appeal), complained that during his arrest the petitioner was choked by officers after he was already in handcuffs. (Id. at p. 670.) The Court of Appeal concluded that the letter to the mayor could not reasonably be construed as substantial compliance with the tort claims filing requirement because it only requested a hearing and “d[id] not even purport to request monetary relief.” (Id. at pp. 671–672.) It “failed to put the city on notice that there was in fact any claim to settle.” (Id. at p. 672.)
Other cases have similarly concluded that complaints that fail to indicate that monetary relief is being sought do not constitute “substantial compliance” with the Act’s claim filing requirements. For example, in Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071 (Loehr), two years after Loehr’s discharge as superintendent and chief executive officer of the Ventura County Community College District, he filed an action seeking both damages and reinstatement. (Id. at p. 1076.) The Court of Appeal concluded that a letter Loehr had sent to the Board of Trustees of the college district demanding reinstatement did not constitute substantial compliance. (Id. at p. 1083.) Substantial compliance requires “the court [to] ask whether sufficient information is disclosed on the face of the filed claim ‘to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit.’” (Ibid.) The letter was “merely a demand that the Board reinstate plaintiff as superintendent of the district or face possible legal action. The only mention of damages appears as a passing reference to the availability of such relief under the federal Civil Rights Act. Nowhere in the letter is there a claim for money damages, nor, for that matter is there even an estimate of the amount of any prospective injury, damage or loss.” (Loehr, supra, at p. 1083.)
Similarly, in Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1118, the trial court granted the public hospital defendant’s motion for summary judgment on the ground that the plaintiff failed to present a claim for damages prior to initiating suit as required under the Act. The plaintiff argued that “Patient Problem/Complaint Form” and a “‘supplemental note’” complaining about the quality of his care constituted substantial compliance with the Act. The Court of Appeal found that as a matter of law the documents did not substantially comply with the Act because they were not transmitted to the statutorily designated agent and did not indicate that a monetary claim was being asserted. (Id. at pp. 1116–1117.) It stated: “Arguably, had plaintiff’s letters been sent to the appropriate agency for the handling of claims (and, had they been transmitted to the persons designated by the statute, they presumably would have been) the information supplied would have enabled the agency to make an adequate investigation. However, absent such transmission and absent any indication that the correspondence was intended as a claim for money damages, no opportunity to investigate or settle was provided.” (Id. at p. 1118.)
Analogously, here, the complaint form submitted by Meloncon to the Department did not substantially comply with the filing requirements of the Act. First, the form was not presented to the clerk, secretary or auditor of the City, as required. (§ 915.) Had that been done, the City would have had the necessary information to make an adequate investigation. Rather, it was sent to the Department, which was not involved in handling tort claims, though it did investigate complaints of police misconduct through its Citizen Police Complaint Commission.
Second, the complaint that Meloncon filed with the Department complained about the police conduct which caused him injury, but failed to state anywhere that it was seeking damages for his injuries, and to therefore put the Department on notice that the strength of his case needed to be assessed and consideration given to settling it in order to avoid litigation. Had that been clear, the Department might have transmitted the complaint form to the agency responsible for handling such claims. As stated in Tyus, and equally applicable here: “The trial court could properly find that the board of police commissioners and the mayor reasonably treated appellant’s complaint as a citizen’s complaint of police misconduct rather than a claim for monetary damages. They were under no duty to advise appellant of the claims statutes or to consult an attorney.... Their statements [in the letter responding to the complaint] would not reasonably lead appellant to believe that they were acting upon a claim for monetary relief.” (Tyus, supra, 74 Cal.App.3d at pp. 672–673.)
Finally, the complaint form indicated that it was for a “Citizen” commission, which should have put Allard, an attorney charged with knowing the law on behalf of her client, on notice that that commission could not make decisions on how much to settle claims against the City. Based on the foregoing, we conclude that Meloncon’s filing with the Department was insufficient as a matter of law to satisfy the Act’s claim filing requirements.
D. Estoppel
In an effort to sidestep the deficiencies in his claim filing, Meloncon argues that even if he failed to substantially comply with the Act’s filing requirements, defendants should be estopped to assert his failure to timely file a proper claim. We disagree.
“It is well settled that a public entity may be estopped from asserting the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act.” (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445.) This rule has generally been applied in the context of a plaintiff’s failure to file a claim against a public entity in accordance with the claim filing statutes. (See Christopher P. v. Mojave Unified School Dist. (1993) 19 Cal.App.4th 165, 170.) Though the claim filing requirement is mandatory and a condition precedent to a cause of action, the time requirement is procedural in nature and may be excused by estoppel. (Farrell v. County of Placer (1944) 23 Cal.2d 624, 630–631.) Equitable estoppel will run against the government where justice and right require it. (Id. at pp. 627–628.)
Estoppel requires a showing that (1) a person’s misrepresentation of an existing fact, acts or omissions of facts cause a complainant to refrain from filing a claim, and (2) reliance on the actions or statements of the person against whom estoppel is asserted was reasonable. (Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 186.) Estoppel is based on the theory that a party who by his declarations or conduct misleads another to his prejudice should be estopped from obtaining the benefits of his misconduct. (Cotta v. City and County of San Francisco (2007) 157 Cal.App.4th 1550, 1567.) An estoppel can arise though there was no designed fraud on the part of the person sought to be estopped. (Benner v. Industrial Acc. Com. (1945) 26 Cal.2d 346, 349.) Misleading statements by a public officer about the need for or advisability of filing a claim (John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at p. 445) or inducing delay (Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432, 440) are circumstances that can give rise to an estoppel.
There is no evidence here that the Department made any misstatements to Allard that induced her into filing a defective claim with the incorrect agency on Meloncon’s behalf. Allard’s declaration in opposition to the motion for summary judgment states that she placed a call to the Department and explained that she wanted to “lodge a claim against the... Department for a client whose arm had been chewed on by a police-pursuit dog” and wanted a claim form, which was then faxed to her. Allard’s supplemental declaration in support of the motion states that when she brought the complaint form to the police station, she asked whether there was another form for making a claim. Neither declaration specifies the type of claim she wanted to file, does not say that she told the person that she wanted to file a monetary claim, does not say that the person indicated any understanding that a monetary claim was going to be filed, and does not indicate that the Department was informed that counsel wanted a form to submit a monetary claim.
The telephone call Allard claims to have received from a person from the City asking to interview Meloncon and inquiring as to the amount of his damages occurred after the six months to file a governmental claim form had already expired. It can therefore have no impact on whether there was any basis for an estoppel.
The complaint form faxed to Allard states on its face that it is to the “Citizen Police Complaint Commission, ” not that it is a claim form under the Act. Nowhere does it request the amount of damages sought. It merely asks for a description of the incident. Furthermore, the form was filed by Allard, an attorney responsible to her client to determine the correct legal procedure for doing so. Given the content sought by the complaint form and the Act’s requirements, it was unreasonable for counsel to assume it was the correct form and to rely on it, and on the purported statement of an unidentified employee answering the phone at the Department, especially when the evidence does not indicate that Allard ever specified to the person with whom she spoke what kind of claim was being filed.
The principal cases on which Meloncon relies in support of his claim of estoppel provide him no support. Ard v. County of Contra Costa (2001) 93 Cal.App.4th 339, unlike the procedural posture of the matter before us, involved an appeal from the granting of a demurrer without leave to amend. The Court of Appeal simply held that the plaintiff’s estoppel argument presented a “potentially valid defense” against the limitations bar that warranted leave to amend the complaint to allege that defense. (Id. at pp. 347–348.) It did not decide the merits of the estoppel argument. Here, the summary judgment motion was designed to pierce the pleading and decide if the evidence raised a triable issue of fact.
In Boas v. County of San Diego (1980) 113 Cal.App.3d 355 (Boas), also relied on by Meloncon, the trial court denied the petition for relief by parents from their failure to file a timely claim against the county for wrongful death of their daughter. The parents had been in doubt regarding the ownership of the property on which the death occurred and contacted a county supervisor’s office. The office promised an investigation and told the parents to forego any other action pending the county’s investigative report. (Id. at p. 357.) The supervisor later sent a letter implying that the county did not own the property. (Ibid.) The plaintiffs then contacted legal counsel who determined that the county did own the accident site and filed an application to present a late claim. The Court of Appeal reversed the trial court’s finding that the failure to present a timely claim was the result of inexcusable neglect. It held that the plaintiffs had reasonably relied on the assurances received from county representatives. (Ibid.)
Boas is inapposite. There, unlike the matter before us, authorized government representatives made express, inaccurate statements and recommendations to lay people to forego action pending the county’s investigation, which induced the plaintiffs to defer filing a claim under the Act and gave rise to an estoppel. The record here is barren of any indication of statements by any government representative inducing the improper filing. Further, the statements were made to an attorney acting on behalf of her client, who was charged with finding the proper legal procedure, not relying on the phone advice of an agency clerk.
E. Waiver
Meloncon also argues that “[t]he doctrine of waiver likewise bars defendants claiming lack of compliance with the tort claims act.” The only case he cites in support of this argument, Lawrence v. State of California (1985) 171 Cal.App.3d 242, does not support waiver, or even discuss it. Moreover, waiver is the relinquishment of a known right. (In re Sheena K. (2007) 40 Cal.4th 875, 880–881 & fn.1.) Meloncon fails to explain how the City knowingly waived its claim that he did not file timely under the Act. Finally, even if the waiver concept is applicable in this context, the reasons for rejecting the estoppel claim, discussed in part IIID, ante, are equally applicable here.
Given our conclusions that Meloncon failed to substantially comply with the filing requirements of the Act and that the doctrines of estoppel and waiver are inapplicable, we need not reach defendants’ contention that a public entity and its employees cannot be liable for any misrepresentations, acts or omissions by the employees, whether the misrepresentation be negligent or intentional.
IV. There is a triable issue of fact with regard to the federal civil rights cause of action
A. Background facts
Meloncon’s first amended complaint alleges a cause of action for violation of Meloncon’s federal civil rights because his arresting officer’s allegedly used excessive force by “allow[ing] the dog [used in appellant’s apprehension] to gnaw and chew plaintiff’s arm for several minutes, and continued to allow such after plaintiff repeatedly requested said defendants to remove the dog.”
In their motion for summary judgment, defendants argued that Meloncon failed to plead the federal civil rights cause of action with particularity (which contention was denied in connection with an earlier demurer), the police officers were entitled to a qualified immunity and the City had no liability under Monell, which provides that the City could only be sued if there was an official policy statement, ordinance or regulation, officially adopted and promulgated by that body’s officers that led to Meloncon’s injuries.
With respect to the federal civil rights cause of action, defendants’ separate statement simply states that Officers Valenzuela and Fox identified themselves and requested that anyone hiding in the yard surrender before a police dog was released, receiving no response a police dog was released “who ultimately located Plaintiff hiding in the yard under a piece of plywood[, ] [¶] Plaintiff was subsequently arrested and booked for residential burglary, and [¶] Plaintiff thereafter plead nolo contendere to a charge of residential burglary and was sentenced to 4 years in prison.” The separate statement also stated, without reference to any supporting evidence, that the fourth cause of action “is barred as to Defendant City because the City has no Monell liability, ” because the police officers have qualified immunity and because the cause of action lacks particularity as to the individual defendants.
The declarations filed in support of defendants’ motion for summary judgment add nothing additional to that contained in the separate statement, except that Valenzuela’s declaration attaches a copy of his report which sets forth the incident in somewhat greater detail.
B. Contention
Meloncon contends that defendants’ separate statement and undisputed facts did not state that they used reasonable, and not excessive, force. He argues that “[t]herefore excessive force or the reasonableness of the force used was not legally in issue at the summary judgment motion.” “The trial court lacked jurisdiction to rule that there was ‘no evidence’ showing ‘excessive force’ when movant-defendants failed to raise such an issue in their separate statement; further, such ruling was infirm in impliedly placing the burden of proof on plaintiff, the opposing party, as to the issue of excessive force.” This contention has merit.
C. The burden on summary judgment
“Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit....” (Code Civ. Proc., § 437c, subd. (a).) A cause of action has no merit if “[o]ne or more of the elements of the cause of action cannot be separately established....” (Code Civ. Proc., § 437c, subd. (o)(1).) The moving party has the initial burden to establish that the cause of action “‘“has no merit if that party has shown that one or more elements of the cause of action... cannot be established.”’” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 410.) To be entitled to summary judgment, a defendant must conclusively “‘negate an essential element of the plaintiff’s cause of action.’” (Id. at p. 411.) Only if the defendant meets this burden does the burden then shift to the plaintiff to show that a triable issue of one or more facts exists as to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 160, 169.) A summary judgment may not be granted when the moving party has failed to refute a tenable pleaded theory. (Id. at pp. 161–162.)
D. Defendants failed to meet their burden
Defendants failed to establish that Meloncon’s federal civil rights cause of action has no merit. That cause of action is based upon the allegation that Valenzuela and Fox used excessive force in failing to withdraw the police dog when Meloncon was subdued, rather allowing the dog to continue its ferocious attack. However, there was no evidence presented by defendants in support of the motion that the force that they used was not excessive. While Valenzuela’s declaration and attached report purport to describe how the dog was released and removed from Meloncon, nowhere do they say that he did not use excessive force, did not allow the dog to continue the attack on Meloncon beyond that which was necessary to apprehend him or how quickly he disengaged the dog from Meloncon. There is no statement regarding the time between the release of the dog and disengaging it or that the dog was immediately stopped. Hence, defendants failed to negate that key element of the federal civil rights cause of action.
While defendants claim that the federal civil rights cause of action against the City was barred because there was no custom, regulation or other official act of the City regarding the use of canine units, as required by Monell in order to hold the City liable, they provide no evidence that such a custom, regulation or official act did not exist and therefore fail to meet their burden. Defendants fail to argue on this appeal that the summary judgment was properly granted based upon a qualified privilege of the officers and its claim of lack of particularity of pleading was heard and denied on demurrer, and in any event would permit amendment. While the amended complaint is not a model of clarity on the federal civil rights cause of action, reasonably construed it alleges that defendants failed to promptly stop the police dog from its attack on Meloncon, thereby using excessive force.
Because defendants did not establish that they did not use excessive force or that Monell was applicable, the burden was not shifted to Meloncon on those issues. He had no obligation to present any evidence with regard to them. As a result, summary adjudication on the federal civil rights cause of action should have been denied. It follows that because a judgment could not be ordered on all of the causes of action, summary judgment was improperly granted.
DISPOSITION
The judgment is reversed with directions to vacate the order granting summary judgment and to enter a new order denying summary judgment and granting summary adjudication on all causes of action except the fourth cause of action for violation of federal civil rights. Each party is to bear its own costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.