Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. CIV 451604
Ruvolo, P.J.
The campus of a middle school is not an unlimited public forum for First Amendment purposes. Accordingly, a police officer does not violate the civil rights of a parent at the school, who is distributing leaflets on its campus without permission, by detaining the parent briefly at the request of the principal, and warning the parent that he will be arrested if he does not leave. The trial court therefore correctly granted summary judgment against such a parent in his suit for civil rights violations against the police officer and his employing municipality.
Facts and Procedural Background
Moberg is representing himself on appeal, as he did in the trial court. His appendix does not conform to the requirements of California Rules of Court, rule 8.124(b). Some statements of fact in his opening brief are supported by references to documents not properly identified and authenticated in his appendix. We have disregarded facts set forth in Moberg’s briefs that are not supported by documents in respondents’ appendix. We have also omitted facts, whether disputed or undisputed, that are not relevant to the issues presented by this appeal.
Appellant Eric Moberg (Moberg) has a son who was enrolled at Westborough Middle School (the School) before and during the fall of 2004. The School is operated by the South San Francisco Unified School District (the District), and is located within the boundaries of respondent City of South San Francisco (the City).
The relationship between Moberg and the School was not harmonious. Beginning sometime in or before May 2004, Moberg began to contact District employees and officials regarding issues he wanted to raise about the treatment of his son at the School, and about District policies. These issues were not resolved to Moberg’s satisfaction. On November 23 or 24, 2004, Moberg’s son was suspended for refusing to serve detention and refusing to dress for physical education class despite the availability of “loaner clothes.” Moberg appealed the suspension.
Sometime in late November 2004, Moberg entered the School campus without permission and began distributing flyers. The principal of the School, Beth Orofino (Orofino), asked him to leave the school grounds and conduct his activities on the public sidewalk, but Moberg ignored her. Orofino was subsequently advised by the District’s superintendent that if Moberg came onto the School’s campus to distribute information in the future, Orofino should ask him to leave, and call the police if he did not do so.
Less than two weeks later, on December 8, 2004, during the time period when parents were arriving at the School to pick up their children at the end of the school day, Moberg again entered the School’s parking lot. At the time, there were about 100 people in the parking lot; parents were driving in and out; and safety guards were present directing the traffic.
Moberg approached parents who were sitting in their cars waiting for their children, and began distributing flyers to them, and soliciting their signatures on a petition, both of which related to his issues with the District’s use of resources for detention supervision rather than enrichment activities. Orofino called the City’s police department and reported that Moberg was distributing flyers on the school premises, and that she wanted this activity to stop.
Respondent Kenneth Hancock (Hancock), a City police officer, arrived shortly thereafter in response to Orofino’s call. He first told Moberg to leave, but then evidently changed his mind and detained him for about five minutes while he waited for Orofino to arrive, spoke with her, and assessed the situation. Orofino told Hancock that Moberg’s son was not at the School that day, and that Moberg did not have permission to hand out flyers on the School premises.
Hancock then told Moberg that he had to stop distributing flyers on the campus, or he would be arrested for violating Penal Code section 626.7. Moberg responded that he was there not only to distribute flyers, but also to pick up his son. Hancock reminded Moberg that his son was not at school that day, and Moberg then left the area.
Moberg later sued Hancock, the City, and other defendants for various civil rights violations. In the ninth cause of action pleaded in Moberg’s second amended complaint, filed on June 5, 2006, Moberg alleged that Hancock’s and the City’s actions in detaining Moberg violated Moberg’s constitutional rights to liberty and free speech, giving rise to causes of action under federal civil rights law (42 U.S.C. § 1983) and Civil Code section 52.1, subdivision (b). Hancock’s demurrer to the ninth cause of action was overruled on September 5, 2006.
The other defendants named in Moberg’s second amended complaint are not parties to this appeal, and the causes of action other than the ninth are not at issue.
The demurrer to the ninth cause of action was sustained without leave to amend as to all other defendants, but the City nonetheless joined in Hancock’s motion for summary judgment. In its order granting summary judgment, the trial court interpreted its own prior order overruling the demurrer to the ninth cause of action to apply to the City as well as Hancock. The City has not challenged this interpretation on appeal, so we adopt it as well. This moots Moberg’s contention that the trial court erred in sustaining the demurrer to the ninth cause of action as to the City.
The City and Hancock moved for summary judgment, and on January 17, 2008, the trial court entered an order granting the motion. On March 17, 2008, the trial court entered an order denying Moberg’s motion for reconsideration. Judgment was entered in favor of the City and Hancock on May 5, 2008. This timely appeal followed.
Discussion
A. Standard of Review
In assessing the correctness of a trial court’s grant of summary judgment, we apply familiar principles of appellate review. “[I]n moving for summary judgment, a ‘defendant . . . has met’ his [or her] ‘burden of showing that a cause of action has no merit if’ he [or she] ‘has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
In resisting a defense motion for summary judgment, “[t]he plaintiff . . . may not rely upon the mere allegations or denials’ of his [or her] ‘pleadings to show that a triable issue of material fact exists but, instead,’ must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’ . . .” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) “It is also well established that a litigant may not avoid summary judgment by attempting to generate disputes of fact as to issues which are not material to the legal theories and claims in issue: ‘The presence of a factual dispute will not defeat a motion for summary judgment unless the fact in issue is a material one.’ [Citations.]” (Banks v. Dominican College (1995) 35 Cal.App.4th 1545, 1551.)
“On appeal after a summary judgment has been granted, we review de novo the trial court’s decision to grant summary judgment and are not bound by the trial court’s stated reasons. [Citations.]” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “Like the trial court, we view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom. [Citation.]” (Ibid.) We independently review the trial court’s decision to grant summary judgment, using the same three-step analysis as the trial court: (1) identifying the issues framed by the pleadings; (2) determining whether the defendant negated the plaintiff’s claims; and (3) deciding whether the plaintiff demonstrated the existence of a triable, material factual issue. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)
B. Elements of Moberg’s Ninth Cause of Action
Moberg’s ninth cause of action pleads that Hancock and the City violated Moberg’s rights to free speech, freedom of assembly, and liberty, and that these violations are made actionable by Civil Code section 52.1, subdivision (b) (section 52.1(b)), and 42 United States Code section 1983 (section 1983). In order to discern the elements of this cause of action, we must examine the statutes on which it is based.
Section 52.1(b) creates a private right of action for individuals “whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a)” of Civil Code section 52.1. Subdivision (a), in turn, provides for injunctive relief against “a person or persons, whether or not acting under color of law, [who] interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state . . . .” Thus, the elements of section 52.1(b) are that the defendant must have interfered, by threats, intimidation, or coercion, with the plaintiff’s exercise of rights secured by the federal and/or California constitutions and/or laws.
We note that subdivision (j) of Civil Code section 52.1 provides that “Speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), except upon a showing that the speech itself threatens violence . . . and the person . . . against whom the threat is directed reasonably fears that . . . violence will be committed . . . .” (See Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230, 1242 [liability under section 52.1(b) “is limited to violations of constitutional or statutory rights accomplished by ‘threats, intimidation, or coercion.’ ”].) However, Hancock and the City have not argued this subdivision bars Moberg’s ninth cause of action in the present case. We therefore do not address the issue of when, if ever, detention by a police officer, unaccompanied by the use of physical force, amounts to a threat, intimidation, or coercion actionable under Civil Code section 52.1, subdivision (j).
Similarly, section 1983 provides a private right of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . .” The elements of section 1983 are therefore the same as those of section 52.1(b), except that (1) section 1983 does not require that the act complained of be accomplished by threats, intimidation, or violence; (2) to be actionable under section 1983, the defendant’s actions must be undertaken under color of state law; and (3) for section 1983 to apply, the right interfered with must find its source in the federal Constitution or laws. (See West v. Atkins (1988) 487 U.S. 42, 48 [“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.”]; see also Venegas v. County of Los Angeles, supra, 153 Cal.App.4th at p. 1242 [section 52.1 differs from section 1983 in having no under color of law requirement and in being limited to rights violations accomplished by threats, intimidation, or coercion].)
For the purpose of this opinion, we will assume that Hancock was acting under color of California law in doing the acts on which the ninth cause of action was based. (See generally Yount v. City of Sacramento (2008) 43 Cal.4th 885, 898-899 [section 1983 cause of action against police officer who improperly used deadly force was not barred by plaintiff’s conviction for resisting arrest].) Hancock and the City do not argue otherwise.
Moberg alleges that the rights with which Hancock and the City interfered were his rights of free speech and assembly, and his right to liberty. Thus, in order to determine whether the undisputed facts establish a violation of section 1983 or section 52.1(b), we must examine the legal extent of those two rights. If the evidence does not show the existence of a triable issue of fact regarding an infringement of Moberg’s rights, as defined by applicable statutes and case law, then Hancock and the City succeeded in showing that an element of Moberg’s cause of action could not be proven at trial, and they were therefore entitled to summary judgment.
C. Freedom of Speech and Association
It is not disputed that Moberg was present at the School on December 8, 2004, for the purpose of disseminating his views on public policy issues, and seeking support for those views from other parents. Had Moberg been handing out his flyers and seeking signatures from other parents on a public sidewalk near the School, his activities would have fallen squarely under the protection of the First Amendment. (See, e.g., Planned Parenthood Golden Gate v. Garibaldi (2003) 107 Cal.App.4th 345, 354 [public streets and sidewalks are traditionally viewed as quintessential public forum for free speech].) The question presented by this case, therefore, is whether the fact that Moberg was doing so on the premises of the School makes a difference.
In arguing that he was entitled to distribute flyers on the School campus, Moberg relies on the fact that parents of students currently enrolled at a school are expressly excluded from the category of “outsiders” who are barred from entering public school grounds without permission under Penal Code sections 627 through 627.10 (the school access law). He also points out that section 627, subdivision (c) declares that it was not the intent of the Legislature, in enacting the school access law, to “infringe upon the legitimate exercise of constitutionally protected rights of freedom of speech and expression . . . .” Thus, Moberg argues, his presence on the School grounds for the purpose of engaging in free speech was not a violation of the school access law.
However, in detaining Moberg, and then directing him to leave the premises of the School at Orofino’s request, Hancock did not rely on the school access law. Rather, he relied on Penal Code section 626.7, which is part of a different chapter of the Penal Code establishing various crimes relating to schools and colleges (the school crimes law). (See Pen. Code, §§ 626-626.11.) Unlike the school access law, the school crimes law treats parents of students enrolled at a school no differently than any other person. Moreover, the last section of the school access law, Penal Code section 627.10, expressly permits persons who are not subject to prosecution under the school access law to be punished if their “presence or conduct on school grounds violates another provision of law.” Thus, the fact that Moberg may not have been violating the school access law did not preclude him from being barred from the School premises on other grounds.
The inclusion of parents within the scope of the school crimes law is underlined by the fact that Penal Code section 626.7, subdivision (d) provides an express exception for parents of students enrolled at a school who need to enter the campus to retrieve their child. If parents were exempted from the reach of the statute altogether, this exception would be unnecessary.
Penal Code section 626.7, the provision of the school crimes law invoked by Hancock, provides that “a person who is not a student, officer, or employee of a public school,” and who is not on the school campus by virtue of the person’s employment, may be directed by the principal to leave the school campus if “it reasonably appears to the [principal] that the person is committing any act likely to interfere with the peaceful conduct of the activities” of the school. (Pen. Code, § 626.7, subd. (a).) This statute does not require that the person actually be interfering with the peaceful conduct of school activities; it only requires that the school principal reasonably believe that the person’s behavior is likely to do so.
In the present case, the evidence introduced in support of the summary judgment motion included Orofino’s testimony that she believed Moberg’s presence in the school parking lot during the after-school pick-up period was likely to cause a safety problem. Given Moberg’s own deposition testimony about the crowded and busy conditions in the parking lot at that time, and the undisputed presence of middle school age children, Orofino’s perception in that regard can only be characterized as reasonable, even if no safety problem actually arose.
Moberg’s argument that there are disputed issues of material fact on this issue is discussed post.
It is true, as Moberg points out, that the school crimes law also provides that it “shall not be utilized to impinge upon the lawful exercise of constitutionally protected rights of freedom of speech or assembly.” (Pen. Code, § 626.7, subd. (b).) The key word in this provision, however, is “lawful.” As one court pointed out in construing the similar language in the school access law, “[t]hat a restriction on access to a . . . school campus shall not be construed to infringe on the legitimate exercise of constitutional rights merely begs the question as to the scope of those constitutional rights.” (Reeves v. Rocklin Unified School Dist. (2003) 109 Cal.App.4th 652, 660 (Reeves) [construing Pen. Code, § 627, subd. (c)].)
The Reeves court went on to note that “school campuses are not public forums” for First Amendment or California constitutional purposes. (Reeves, supra, 109 Cal.App.4th at pp. 661-664; see generally DiLoreto v. Downey Unified School Dist. Bd. Educ. (9th Cir. 1999) 196 F.3d 958, 964-966 (DiLoreto) [discussing factors determining whether public property is public forum or limited public forum for First Amendment purposes].) While Reeves arose from the denial of permission under the school access law, rather than an exclusion under the school crimes law, the First Amendment principles at issue are the same, and it is well established that school facilities are not public forums unless they have been opened for indiscriminate use by the general public. (Id. at p. 966, citing Hazelwood School District v. Kuhlmeier (1988) 484 U.S. 260, 267.)
The Reeves court also noted that “ ‘the First Amendment does not require school officials to wait until disruption actually occurs before they may act to curtail exercise of the right of free speech [and] that they have a duty to prevent the occurrence of disturbances.’ [Citation.] ‘Because of the state’s interest in education, the level of disturbance is relatively lower in a school than it might be on a street corner and the [c]ourt may consider all circumstances confronting the school administrators which might reasonably portend disruption.’ [Citation.]” (Reeves, supra, 109 Cal.App.4th at p. 665.) Similarly, in DiLoreto, supra, 196 F.3d 958, the court held that a school district’s concern that a proposed religious advertisement would cause disruption by engendering “controversy and expensive litigation” was a legitimate reason for declining to post the advertisement on a portion of the school premises, even though commercial advertising was permitted there. (Id. at p. 968.) Thus, contrary to Moberg’s contentions, the First Amendment did not preclude Orofino from requiring him to leave the School campus because of a concern that his activities could result in a possible safety problem, or disruption of school activities.
D. Liberty
Moberg repeatedly states in his briefs that Hancock “arrested” him on December 8, 2004. The undisputed facts, however, establish that what occurred was an investigatory detention, and not an arrest. The difference is important, for the reasons explained below.
Personal encounters between law enforcement officers and citizens are “seizures” for Fourth Amendment purposes on occasions “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . .” (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) However, a seizure, in this sense, does not necessarily constitute an arrest. “ ‘[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.’ [Citation.] ‘ “Although police officers may not arrest or search a suspect without probable cause and an exception to the warrant requirement, they may temporarily detain a suspect based only on a ‘reasonable suspicion’ that the suspect has committed or is about to commit a crime. [Citations.] Such detentions are permitted, notwithstanding the Fourth Amendment’s requirements of probable cause and a search warrant, because they are ‘limited intrusions’ that are ‘justified by special law enforcement interests.’ [Citations.]” [Citation.]’ [Citation.]” (In re H.M. (2008) 167 Cal.App.4th 136, 142.)
The test for whether a particular seizure is a detention or an arrest is “whether the ‘particular governmental invasion of a citizen’s personal security’ was reasonable ‘in all the circumstances.’ [Citation.]” (People v. Rivera (1992) 8 Cal.App.4th 1000, 1008, quoting Terry v. Ohio, supra, 392 U.S. at p. 19.) In this case, the undisputed evidence presented to the trial court demonstrates that as a matter of law, Moberg was only detained, and not arrested. Moberg does not contend that Hancock handcuffed or otherwise physically restrained him, or even issued him a citation. By Moberg’s own account, Hancock permitted him to leave at the end of five minutes. During those five minutes, Hancock engaged in a conversation with Orofino regarding the circumstances that had led her to call for police assistance in regard to Moberg’s activities at the School. This is a paradigm case of an investigatory detention.
Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033 (Gillan), on which Moberg relies, is not to the contrary. In that case, a teenage girl accused her former basketball coach of having sexually harassed and molested her. After investigating the girl’s accusations, the police requested that the coach submit to an interview, but he declined. The police then decided to arrest the coach, obtain his fingerprints and photograph so as to assist them in investigating further, and then release him. The coach’s principal informed him that the police wanted him to turn himself in at the police station, and he did so. He “was booked, fingerprinted, and photographed,” and held at the police station for an hour. He was then released with a document informing him that he had only been detained, and not arrested. (Id. at p. 1039.) No corroborating evidence or other victims were found, and the coach was never charged.
The coach then sued the city and police officials under section 52.1(b), contending that the girl’s accusations were not reasonably believable, and that he had been arrested without probable cause. On appeal from a verdict in the coach’s favor, the court upheld the jury’s finding that “the information provided by the accuser lacked sufficient indicia of reliability” (Gillan, supra, 147 Cal.App.4th at p. 1045), and concluded that the coach had been arrested without probable cause, in violation of his rights under section 52.1(b). (Id. at p. 1047.)
The appeal in Gillan, supra, 147 Cal.App.4th 1033,did not involve the issue whether the coach had been arrested, or only detained, and the court used the two terms interchangeably in its opinion. Examination of the facts and the holding reveals, however, that the court in fact disregarded the police’s self-serving characterization of their action as a mere detention, and treated it as an arrest. On the facts, it is clear that an hour’s confinement at a police station, complete with booking, photographing, and fingerprinting, is not a brief, investigatory stop involving only a limited intrusion on the person’s liberty, and therefore is an arrest rather than a detention under the applicable case law, as discussed ante.
In contending that the coach had only been detained, the police relied on Penal Code section 849.5. (See Gillan, supra, 147 Cal.App.4th at p. 1039, fn. 2.) This statute was evidently intended to protect those who are arrested, released by the police for lack of evidence, and never charged, from acquiring an arrest record as a result of their unfortunate brush with the law. (See Loder v. Municipal Court (1976) 17 Cal.3d 859, 869.) It does not, however, transform what is an arrest for constitutional purposes into a detention. This is made clear by the statement of legislative intent accompanying the statute’s enactment, which provides that “It is the intent of the Legislature that nothing in this act shall affect the civil remedy of any person for false arrest or imprisonment.” (Stats. 1975, ch. 1117, § 4, p. 2712.)
More importantly, the court in Gillan, supra, 147 Cal.App.4th at page 1047, held that the conduct of the police was actionable under section 52.1(b) because of the lack of probable cause to believe the accusations against the coach. That holding necessarily implies that the court viewed the coach’s experience as an arrest, because probable cause is not necessary to justify a detention. (In re Antonio B. (2008) 166 Cal.App.4th 435, 440.) Thus, Gillan does not stand for the proposition that a detention without probable cause is a violation of the detained person’s civil rights.
“ ‘[A]n officer who lacks probable cause to arrest can conduct a brief investigative detention when there is “ ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity.” ’ [Citation.]” (In re Antonio B., supra, 166 Cal.App.4th at p. 440.) An investigatory stop is justified if the officer has learned “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Terry v. Ohio, supra, 392 U.S. at p. 21, fn. omitted.)
As applied to the present case, the distinction between arrest and detention is particularly significant. Due to the special nature of schools under California law, and the fact that access to schools is expressly limited by statute, all visitors on school grounds may be detained, even if not suspected of any criminal activity, for the purpose of ascertaining who they are, why they are there, and whether or not they are subject to exclusion from the school grounds for any reason. (In re Joseph F. (2000) 85 Cal.App.4th 975, 984-986, 989.)
Here, again, the undisputed facts establish as a matter of law that when Hancock detained Moberg, he was in possession of objective, specific facts leading him to believe that Moberg was engaged in activities calling for further investigation. Hancock’s presence on the grounds of the School was in response to a call from its principal stating that Moberg was distributing flyers on the premises of the School, and that she did not want him to do so.
There is a factual dispute regarding the exact details of Orofino’s call to the police, which is discussed post. It is not disputed, however, that Orofino called the police, told them that Moberg was at the School distributing flyers, and indicated that she wanted the assistance of the police in requiring him to leave the School premises.
Moreover, Hancock’s interrogatory responses, submitted by Moberg as an exhibit in his opposition to the summary judgment motion, state that Hancock himself personally witnessed Moberg disrupting the flow of traffic on the occasion at issue. These facts, taken together, clearly justified Hancock in detaining Moberg while he spoke with Orofino about the situation.
E. Absence of Disputed Issues of Material Fact
In his briefs in this court, Moberg contends that the trial court erred in granting summary judgment because of the existence of a factual dispute as to whether Orofino told the City police, when she made the call to which Hancock responded, that Moberg was disrupting traffic. Moberg also relies on the existence of a factual dispute as to whether or not he was, in fact, disrupting traffic or causing a safety problem.
Hancock’s police report stated that Orofino had told the police that Moberg’s actions were disrupting the flow of traffic while parents were picking up their children after school. There is a factual conflict between this aspect of Hancock’s police report and Orofino’s responses to Moberg’s requests for admissions, in which she admitted that she had not complained to Hancock or anyone else that Moberg was disrupting traffic at the School. Also, in Orofino’s deposition testimony, she said she called the police because she was concerned that Moberg’s activities could cause a safety problem due to the presence of children and cars in the parking lot. Moberg submitted evidence to the trial court that his actions were not in fact disrupting traffic, interfering with any school activity, or causing a safety problem.
These factual disputes, however, are not material, and their existence therefore did not preclude the trial court from granting summary judgment. (See Banks v. Dominican College, supra, 35 Cal.App.4th at p. 1551.) In considering whether Orofino was legally justified in asking Moberg to leave the School premises (and in calling the police for assistance in doing so), it does not matter which of her possible motivations for doing so – that Moberg was disrupting traffic, or that his conduct was likely to cause a safety problem – was the actual reason. Nor does it matter whether Moberg was, in fact, disrupting traffic or causing a safety problem. As we have already explained, Orofino’s decision to expel Moberg from the parking lot was justified under Penal Code section 626.7 so long as she reasonably believed that Moberg’s activities were likely to disrupt the School’s activities, either by disrupting traffic or by causing a safety problem. Despite the conflicts in the evidence as to the specifics, there is no dispute that Orofino called the police for one or the other of these reasons, either of which is legitimate.
Similarly, as our earlier discussion of the applicable law makes clear, in order to detain Moberg for investigatory purposes, all Hancock needed was articulable facts to suspect that Moberg might be engaged in illegal activities. Thus, for the purpose of justifying Hancock’s detention of Moberg, it does not matter whether Moberg’s flyer distribution was, in fact, a violation of Penal Code section 626.7, or whether Moberg was actually disrupting traffic. It only matters that Hancock had a reasonable suspicion that either or both of these facts might be true, and our earlier discussion makes clear that he did. Accordingly, the factual dispute raised by Moberg in his opposition to the summary judgment motion was not material to the issues raised by the motion.
F. Hancock’s Liability
As the foregoing discussion demonstrates, the undisputed facts before the court on the summary judgment established, as a matter of law, that Hancock’s actions on December 8, 2004, did not infringe on any of the rights alleged as the basis for ninth cause of action, i.e., the rights to free speech and assembly, and the right to personal liberty. Both section 52.1(b) and section 1983 require such an infringement as an element of a cause of action under each respective section. Accordingly, summary judgment in favor of Hancock was appropriate on this basis. (See Venegas v. County of Los Angeles, supra, 153 Cal.App.4th at pp. 1239-1240 [holding that police officer’s initial detention of plaintiffs did not violate their federal constitutional rights, coupled with fact that plaintiffs had not alleged any violation of any separate and distinct state constitutional right, barred action against police officer under section 52.1(b) based on initial detention].)
We therefore need not reach the question whether Hancock was entitled to any form of immunity from Moberg’s ninth cause of action. (See, e.g., Picray v. Sealock (9th Cir. 1998) 138 F.3d 767, 771 [“A government official is qualifiedly immune from § 1983 liability unless his conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ”]; Venegas v. County of Los Angeles, supra, 153 Cal.App.4th at pp. 1242-1247 [although federal doctrine of qualified immunity does not apply in actions under section 52.1(b), government tort immunities established by California statutes may bar liability if factually applicable].)
G. Liability of the City
Moberg’s sole theory of liability against the City is that it is liable for the acts of Hancock, as an employee of the City’s police department. Because we have concluded that the trial court properly entered summary judgment in Hancock’s favor, it is clear that the City was also entitled to summary judgment.
We add, however, that even if Moberg had raised a triable issue of fact as to Hancock’s liability, this would not have precluded the entry of summary judgment in favor of the City as to Moberg’s ninth cause of action insofar as it pleaded a claim under section 1983. “Local governments are only liable under § 1983 for constitutional torts that amount to a custom or policy. [Citation.] Proof of random acts or isolated events does not satisfy the plaintiff’s burden to establish a custom or policy. [Citation.].” (Picray v. Sealock, supra, 138 F.3d 767, 772; see also Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 691.) Moberg’s briefs on appeal do not cite to any evidence raising a triable issue of fact in support of the proposition that Hancock’s actions in detaining Moberg stemmed either from an official City policy or from an established custom in the City or its police department. Moberg’s isolated experience, standing alone, could not support liability against the City under section 1983, even if he had been able to defeat the summary judgment motion as to Hancock.
F. Conclusion
For all of the foregoing reasons, we affirm the summary judgment in favor of both Hancock and the City. In so doing, we stress that the judgment does not prevent Moberg from exercising his First Amendment right to contact other parents of students at the School and urge their support for his views. (Cf. Reeves, supra, 109 Cal.App.4th at p. 665 [First Amendment does not demand unrestricted access to non-public forum merely because that forum is most efficient means for delivering message; nearby public intersection provided plaintiffs with alternative way of communicating message to students].) The judgment only prevents Moberg from recovering damages or injunctive relief resulting from the events on School premises on December 8, 2004. Accordingly, contrary to Moberg’s contention in his briefs on appeal and at oral argument, the judgment in this case does not operate as a prior restraint on free speech.
Disposition
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: Reardon, J., Sepulveda, J.