Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG04177538
Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Plaintiff Stancy Nesby (plaintiff) appeals from a summary judgment in this action against the City of Berkeley (the City) and four individual police officers in connection with three investigatory detentions and two arrests on warrants erroneously issued in her name. We affirm the judgment, as we conclude that the officers had a reasonable suspicion to detain plaintiff and had no duty to look beyond these facially valid warrants. Moreover, as plaintiff has not produced evidence of racial motivation or excessive force, summary judgment also was proper on her remaining causes of action.
FACTUAL BACKGROUND
The Warrants
In 1999, an impostor identified herself using plaintiff’s name and personal information, and no other alias, in connection with several felony drug arrests by the San Francisco Police Department (SFPD). The impostor sustained subsequent convictions on these charges. In 2001, when she violated her probation and absconded, two no-bail felony bench warrants were issued for her arrest in plaintiff’s name and disseminated in law enforcement databases statewide. (See Nesby v. City and County of San Francisco,notice of appeal filed September 27, 2006, A115620 [plaintiff’s related action arising out of SFPD’s booking of the impostor and the issuance of warrants in her name].) Each bench warrant was for the arrest of Stancy Nesby, a Black female, with a date of birth of May 12, 1976. On April 30, 2002, the San Francisco criminal court determined that plaintiff was not the subject of the warrants, but ordered that one of the bench warrants remain outstanding.
The September 3, 2003 Incident
On September 3, 2003, plaintiff was stopped by Berkeley police officer Dustin Morillas (Officer Morillas) while driving in the City of Berkeley. Officer Morillas noticed while on routine patrol that the registration tab was expired on the vehicle in front of him, which plaintiff was driving. Three weeks earlier, plaintiff had purchased a silver Dodge Intrepid on which the registration had expired. The auto dealership (the Dealer) had affixed a temporary identification sticker to the lower front windshield on the passenger side of the car and told her that this “temporary registration” would allow her to drive it until the formal registration process was completed. (See Veh. Code, § 4456, subds. (a)(1) & (2), (c) [purchaser may operate vehicle displaying report of sale without registration for six months from the date of sale or until she receives the registration, whichever is earlier].)
The DMV issued a new registration for plaintiff's car on October 16, 2003, after the Dealer submitted the appropriate fees.
There is no evidence that Officer Morillas saw the temporary identification sticker. Because the side and rear windows of the vehicle were tinted, he also could not see plaintiff or determine her race. He testified at deposition that he had dispatch run a license plate check, which revealed an expired registration and gave no indication that registration was in progress. Dispatch records confirm this. Officer Morillas initiated a traffic stop for possible violation of Vehicle Code section 4000, subdivision (a) [driving unregistered vehicle], or section 5204, subdivision (a) [failure to display current tabs on license plate].
Officer Morillas approached the driver’s door of the vehicle and told plaintiff that the registration tabs on her vehicle were expired. She was nervous and informed him right away of the outstanding warrants in her name, but claimed they were not for her arrest. Plaintiff claims she gave Officer Morillas a color mug shot profile of the impostor, which bore the official seal of SFPD, but that he ripped it up and remarked, “You Black folks are getting better and better every day at making up things like this.” Officer Morillas denies this.
Plaintiff claims that neither officer told her the reason he had pulled her over. Nonetheless, she admitted in the government claims she filed with the City that each officer told her when he approached her car that her registration had expired.
In Officer Morillas’s experience, it was not uncommon for suspects to attempt to avoid arrest by representing that a warrant has been cleared or that the warrant was for the arrest of someone else. Accordingly, he radioed police dispatch and requested a routine records check for a Black female named Stancy Nesby, with a date of birth of May 12, 1976. A minute or so later, dispatch responded and informed him that plaintiff had two active no-bail felony arrest warrants against her in connection with possession of cocaine for sale (Health & Saf. Code, § 11351.5). The dispatcher asked Officer Morillas how he had identified plaintiff, and he replied that he had done so using her driver’s license. He provided her height (5’5”), weight (130 lbs.), and driver’s license number to dispatch. Shortly thereafter, dispatch contacted him again and told him that SFPD had verbally confirmed the continuing validity of the warrants for the driver with this physical description. Based on the information Officer Morillas received from dispatch and his prior experience with suspects who lie about the validity of outstanding warrants against them, he believed there was probable cause to arrest plaintiff. He claims, further, that the mug shot would not have negated his belief in this regard.
The Automated Warrant System (AWS) reflected two outstanding warrants for the arrest of “Stancy Nesby,” a Black female, with a date of birth of May 12, 1976.
Officer Morillas handcuffed plaintiff without incident and placed her in the patrol car with no rough or forceful contact. He then waited with her for 10 minutes until her boyfriend arrived and took possession of her vehicle so that it would not be towed. Officer Morillas then transported plaintiff to the Berkeley police station for booking. He acknowledges that plaintiff told him “a couple times” during this incident that she was innocent. Plaintiff claims that he promised to contact San Francisco when they arrived at the station to obtain the impostor’s fingerprints.
At the station, Officer Morillas filled out an arrest form, but did not issue a citation in connection with the expired registration tabs because the outstanding warrants, which were a much more serious matter, had become the focus of the encounter. Plaintiff claims that while Officer Morillas was completing the paperwork, she reminded him of his promise and asked if he was going to tell other officers to fax her fingerprints to San Francisco to confirm her innocence, but that he told her to “shut up.” Officer Morillas acknowledges that he did not advise anyone at the station regarding plaintiff’s claims of innocence. Like others arrested on out-of-county warrants, plaintiff was transported to the Santa Rita jail, but was released at 1:18 a.m. the next morning.
Officer Morillas denies that any of his decisions were based on an improper or discriminatory purpose.
The September 16, 2003 Incident
Almost two weeks later, Berkeley police officer Michael Parsons (Officer Parsons) pulled plaintiff over as she was driving with a friend in Berkeley. At a recent police briefing, Officer Parsons had been instructed to be on the lookout for a silver Dodge Intrepid that was driven by a Black male and involved in illegal drug activity. This triggered his attention to plaintiff's car when he was on routine patrol late the night of September 16, 2003. From his position behind her car, he saw that the registration tab on the vehicle’s license plate was expired. He could not see plaintiff or determine her race or gender. He called in the license plate number to police dispatch, which ran a DMV records check and determined that the car's registration had expired on May 18, 2003. It gave no indication that registration was in progress. The dispatcher provided this information to Officer Parsons.
Since Officer Parsons did not yet know whether the vehicle simply had an expired registration or presented a more serious matter, he called in a code indicating that he was making a traffic stop of a suspicious vehicle and automatically requesting backup. After initiating the stop, Officer Parsons approached plaintiff's car and told her that her registration was expired. (See ante, fn. 2.) Shortly after the traffic stop began, another Berkeley police officer arrived at the scene to provide backup (Officer Brown).
Afraid of another arrest on the warrants, plaintiff became highly emotional, showed Officer Parsons some related paperwork, and explained that she had outstanding warrants in her name based on the conduct of the impostor. Officer Parsons confirmed that she had warrants in her name. At some point during the stop, a man walked up and identified himself as plaintiff’s brother. He told Officer Parsons that there were warrants in plaintiff’s name, but that they were for the arrest of another woman who had stolen her identity. Given plaintiff’s emotional demeanor and her brother’s matching story, Officer Parsons decided not to pursue the warrants any further and did not take plaintiff into custody or cite her for any violation of the Vehicle Code. Officer Parsons did not have any physical contact with plaintiff during this encounter and did not say or do anything that could be considered a threat of violence. Plaintiff remained in her vehicle the entire time, and Officer Parsons did not search it. The traffic stop lasted between 15 and 25 minutes.
Plaintiff remembers showing documents to the officers, but does not recall specifically what she gave them. She believes she may have shown them her fingerprints or jail documents from a prior arrest.
Plaintiff claims that Officer Parsons initially insisted upon her arrest and only released her after Officer Brown intervened. We do not consider this assertion, however, as plaintiff did not produce evidence below to dispute the City’s fact in this regard. We also do not address her claim that Officer Parsons’s “conduct scared, frightened and intimidated” her as she did not dispute below the City’s assertion that his conduct did not reflect a threat of violence, and her own testimony confirms that he did not do anything improper.
The September 18, 2004 Incident
Plaintiff’s final encounter with Berkeley police took place a year later, on September 18, 2004. At approximately 12 noon that day, Officer Ethell Wilson (Officer Wilson) and Sergeant Thomas Curtin (Sergeant Curtin) responded to a radio broadcast that a Wells Fargo branch located inside Andronico’s supermarket had been robbed by an armed suspect. The suspect, a Black male, had exited on the Addison Street side of the building two minutes earlier. Sergeant Curtin arrived at the Addison Street location within 90 seconds of the broadcast and immediately noticed a blue Ford Mustang across the street from the parking lot where the robber had reportedly fled. The Mustang was partially blocking a private driveway and appeared to have been parked in a hurried fashion. The engine was running, but the driver's seat was empty; plaintiff, the car's sole occupant, was sitting in the passenger seat.
Because of the timing of the robbery and the proximity of the vehicle to the suspect’s path of flight, Sergeant Curtin believed that the idling Mustang could be a get-away car and might be related to the robbery. He directed Officer Wilson, who had arrived on the scene immediately after he did, to "contact, identify, and standby" with the passenger in the Mustang. Sergeant Curtin then turned to other tasks in connection with the robbery.
Officer Wilson approached the Mustang and asked plaintiff where the driver was. Plaintiff said she did not know. She kept her window rolled up and spoke to Officer Wilson through a crack at the top of the window, even after a large number of police officers arrived at the scene. She appeared very nervous and became more agitated the longer the encounter continued. When Officer Wilson asked her for the driver’s name, she told him it was Roger. Officer Wilson ran a license plate check on the Mustang and determined that the registered owner’s name was Kenneth White. Based on the timing of the robbery and the arrival of officers on the scene, the idling Mustang’s proximity to the location of the robbery and the suspect’s path of escape, the absence of a driver, the discrepancy between the names of the driver and the registered owner, and plaintiff’s reluctance to provide information, Officer Wilson believed a reasonable suspicion existed that plaintiff might be involved in the robbery or protecting the robber.
Plaintiff claims that several officers frantically surrounded the Mustang, yelled at her, and demanded answers to questions in a rapid, belligerent manner. She does not dispute, however, that she was hesitant to respond and did so reluctantly, as her attorney had advised her not to answer the officers’ questions.
Officer Wilson asked plaintiff’s name, and she told him “Stancy Nesby.” When she told Officer Wilson about the outstanding warrants in her name, he requested a records check from dispatch for "Stancy Nesby" with a date of birth of May 12, 1976. The dispatcher quickly responded that plaintiff had two outstanding no-bail arrest warrants out of San Francisco for felony possession of cocaine for sale (Health & Saf. Code, § 11351.5). (See ante, fn. 3.) Although plaintiff claimed that the warrants were not for her arrest, in Officer Wilson’s experience, it was common for a suspect to deny that she was the true subject of a warrant.
Sergeant Curtin returned to plaintiff’s location, and Officer Wilson told him about the outstanding warrants. Sergeant Curtin was aware that plaintiff claimed she was not the subject of the warrants, but also had experience with suspects who tried to avoid arrest by contending that warrants were for the arrest of other individuals. Based on the existence of two warrants in the AWS database, and plaintiff’s “highly unusual name,” he believed that probable cause existed and directed Officer Wilson to arrest her on the warrants.
Plaintiff referred during the stop to a newspaper article in her car that discussed the identity theft and her suit against SFPD. Sergeant Curtin retrieved the article from the Mustang, examined it, and gave it to Officer Wilson, directing him to investigate at the police station whether plaintiff was sought under the warrants. Since plaintiff had complained about her hand during the arrest, Sergeant Curtin also instructed Officer Wilson to have paramedics examine her and provide medical attention.
When Officer Wilson arrived at the police station with plaintiff, he learned from dispatch that SFPD wanted Berkeley police to obtain her fingerprints and fax them to SFPD for comparison with those of the impostor. Although delays resulted from problems transmitting plaintiff’s fingerprints, SFPD informed Berkeley police three hours later that she was not sought under the warrants. Officer Wilson immediately released her without booking her.
PROCEDURAL HISTORY
On September 28, 2004, plaintiff filed suit against the City, Officer Morillas, and unidentified employees and agents of the City (Does 1 through 100) based on the two incidents in September 2003. She alleged seven causes of action: unreasonable search and seizure (Cal. Const., art. 1, § 13) (first cause of action), violation of her due process and equal protection rights (Cal. Const., art. 1, § 7(a)) (second cause of action), interference with her civil rights (Civ. Code, § 52.1) (third cause of action), violence on account of her race or color (Civ. Code, § 51.7) (fourth cause of action), false imprisonment (fifth cause of action), intentional infliction of emotional distress (IIED) (sixth cause of action), and negligence/negligent infliction of emotional distress, including allegations of negligent hiring, training, and supervision (seventh cause of action). She later filed a First Amended Complaint (FAC) that contained the same causes of action and substantially similar allegations, but added allegations relating to her encounter with Berkeley police on September 18, 2004, and substituted Officer Parsons, Officer Wilson, and Sergeant Curtin for Does 1 through 3.
The City answered the FAC in December 2004, and a year later, on December 14, 2005, filed a motion for summary judgment, along with a statement of 68 undisputed facts and supporting evidence. Additionally, the City filed a document identifying the “Issues to Be Summarily Adjudicated,” which set out 25 issues for the trial court’s determination and identified the facts material to each. In support of its motion, the City attached declarations from the officer defendants, the supervising public safety dispatcher for the Berkeley Police Department, the police officer providing backup for Officer Parsons on September 16, 2003, and the City’s counsel, with attached exhibits. The City also requested judicial notice of the bench warrants issued in plaintiff’s name in September and October 2001, and two minute orders from proceedings on April 30, 2002, in which the San Francisco criminal court ordered that the October 19, 2001 warrant remain outstanding after determining plaintiff’s innocence. (See Nesby v. City and County of San Francisco, supra, A115620.) Shortly thereafter, the City filed an amended statement of undisputed facts that combined the same facts and evidence with the issues to be summarily adjudicated. The City later filed supplemental declarations from its counsel and the dispatcher, with attached exhibits, and a declaration from the Dealer’s business manager.
Plaintiff opposed the motion, responding to the City’s facts and asserting 28 additional facts with supporting evidence. In opposition to the motion, she attached her own declaration and declarations from a police practices expert and two of her attorneys, with attached exhibits. The City filed objections to plaintiff’s evidence.
On August 24, 2006, the trial court granted the City’s request for judicial notice of the warrants and the April 30, 2002 minute orders, sustained 38 of the City’s evidentiary objections, and granted summary judgment. The trial court concluded that all three detentions were lawful and that the officers had no duty to investigate plaintiff’s claim of mistaken identity once probable cause existed for her arrest. The trial court also determined that immunity (Civ. Code, § 43.55, subd. (a); Pen. Code, § 847, subd. (b)) barred liability for plaintiff’s arrests, as the warrants were facially valid and the officers were not required to “search for facts not apparent on the face of the paperwork.”
Plaintiff does not challenge these evidentiary rulings on appeal, and we do not consider the evidence excluded by the trial court. (See Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 612 (Artiglio); Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1181.)
Concluding that the officers were entitled to judgment as a matter of law as to plaintiff’s false imprisonment (fifth) cause of action, the trial court determined that her constitutional (first and second) causes of action and her third cause of action for interference with civil rights (Civ. Code, § 52.1) also failed. The trial court further concluded that plaintiff’s fourth cause of action (Civ. Code, § 51.7) failed as well “for lack of evidence that any officer was motivated to act on the basis of race.” Finally, the trial court held that prosecutorial immunity (Gov. Code, § 821.6) barred plaintiff's sixth and seventh causes of action (IIED/negligence). As no triable fact existed as to the individual officers’ liability, the trial court held that the City was entitled to summary judgment as well. In a footnote, the trial court also rejected plaintiff’s assertion, based on an alleged promise from Officer Morillas, that the officer owed her a “special duty” to obtain the impostor’s fingerprints from SFPD when he arrived at the station. The trial court concluded that there was no evidence that plaintiff detrimentally relied on the alleged promise and that, in any case, Officer Morillas was immune from liability (Gov. Code, §§ 820.2; 821.6) because the promise related to “a discretionary, investigative decision.”
The trial court entered judgment on October 18, 2006, and plaintiff filed a timely notice of appeal from the judgment.
DISCUSSION
We review the judgment de novo, and though we apply the same general principles applicable at the trial court level, we determine independently the construction and effect of facts presented below as a matter of law. (See Saldana v. Globe–Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511–1515; Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355-356.) Summary judgment is proper if the papers submitted in connection with the motion show that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We first identify the issues framed by the pleadings, then consider whether the City has established facts negating plaintiff’s claims and justifying a judgment in its favor. (See Hamburg v. Wal–Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503.) If we conclude that the City has made a prima facie showing in this regard, we determine whether plaintiff has demonstrated the existence of a triable issue of fact. (See ibid.)
On appeal, plaintiff challenges summary judgment as to her third (interference with civil rights (Civ. Code, § 52.1)), fourth (racial violence (Civ. Code, § 51.7)), fifth (false imprisonment), sixth (IIED), and seventh (negligence) causes of action, all of which seek to hold the City vicariously liable for the acts and omissions of its officers in connection with her detentions and arrests on the warrants. A public entity may be held vicariously liable for injury caused by an employee’s conduct within the scope of employment if the employee could be held liable. (Gov. Code, § 815.2, subd. (a).) Accordingly, we consider the liability of the officers, who may be held liable to the same extent as private persons under general tort principles. (See Gov. Code, § 820 [public employee liability]; de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 249 (de Villers); Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 715-716.)
On appeal, plaintiff does not assert error as to her independent constitutional (first and second) causes of action.
I. The Detentions
Plaintiff contends that in each of these incidents, she was detained without reasonable basis and on account of her race. Her third and fourth causes of action for interference with civil rights (Civ. Code, § 52.1) and racial violence (Civ. Code, § 51.7) turn in part or altogether on these contentions. We conclude that the City was entitled to judgment as a matter of law to the extent plaintiff's causes of action arise from these detentions, as the undisputed facts show that they were lawful, and plaintiff has not produced any evidence demonstrating that they were motivated by race.
Plaintiff contended below that she was stopped for "driving while Black" and “for simply being Black.”
A. Third Cause of Action (Civ. Code, § 52.1)
Civil Code section 52.1 provides an action for damages for interference by threats, intimidation, or coercion with the exercise and enjoyment of statutory or constitutional rights. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 843.) In the FAC, plaintiff relies solely on the equal protection clause to provide the predicate constitutional violation under section 52.1. A motion for summary judgment is directed to issues framed by the pleadings. (See Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648 (Oakland Raiders) [“[T]he pleadings set the boundaries of the issues to be resolved at summary judgment”].)
The City’s motion for summary judgment did not address plaintiff’s section 52.1 cause of action as it related to the equal protection clause. Nonetheless, the City addressed race in connection with Civil Code section 51.7 and correctly contended that plaintiff did not plead factual allegations in the FAC showing racial discrimination.
In this instance, however, we consider the validity of plaintiff’s detentions nonetheless, as the FAC asserts a separate cause of action for unreasonable search and seizure (first cause of action), and the parties addressed the lawfulness of the detentions below. Plaintiff did not contend below and does not assert on appeal that the City did not meet its initial burden in this regard.
The California Constitution and the Fourth Amendment both proscribe seizures of persons that are unreasonable. (People v. Britton (2001) 91 Cal.App.4th 1112, 1118; United States v. Cortez (1981) 449 U.S. 411, 417 (Cortez).) In determining the reasonableness of a detention, we consider: whether it was justified at its inception and whether it was reasonably related in scope to the circumstances justifying the initial interference. (People v. Bell (1996) 43 Cal.App.4th 754, 760-61; People v. Brown (1998) 62 Cal.App.4th 493, 496.) A police officer may stop and briefly detain a person for investigative purposes if he has a reasonable suspicion of criminal activity. (United States v. Sokolow (1989) 490 U.S. 1, 7 (Sokolow), citing Terry v. Ohio (1968) 392 U.S. 1, 30.) A temporary detention does not require probable cause to arrest. (In re Tony C. (1978) 21 Cal.3d 888, 892, superseded by statute on other grounds as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733.) A routine traffic stop is treated as an investigatory detention. (Whren v. United States (1996) 517 U.S. 806, 809-810 (Whren); People v. Bell, supra, 43 Cal.App.4th at p. 760.) A traffic stop is justified at its inception if the officer has a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Bell, supra, 43 Cal.App.4th at p. 761.) The officer’s suspicion must be supported by “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; accord, People v. Britton, supra, 91 Cal.App.4th at p. 1118.)
The September 2003 Traffic Stops
The undisputed facts establish that Officer Morillas and Officer Parsons each stopped plaintiff after noticing that the registration tab on her car’s license plate was expired, suggesting a possible violation of Vehicle Code section 4000, subdivision (a) [driving unregistered vehicle] or section 5204, subdivision (a) [failure to display current month and year on license plate tabs]. Consequently, both September 2003 traffic stops were justified at the inception, based on the officers’ reasonable suspicions that plaintiff had violated the Vehicle Code.
We reject plaintiff’s attempt to negate the lawfulness of these stops by demonstrating that she was, in fact, legally operating the vehicle. (See Veh. Code, § 4456, subd. (c).) The question is not whether she actually violated the Vehicle Code, but whether the officers reasonably suspected that she had done so. (See People v. Bell, supra, 43 Cal.App.4th at p. 761.) Plaintiff’s reliance on People v. Nabong (2004)115 Cal.App.4th Supp. 1 is misplaced. In that case, the officer stopped the vehicle because he saw a temporary registration in the rear window and believed that nearly half the cars displaying purported temporary registrations did not have valid stickers. (See id. at p. 4.) He did not have a particularized belief that the car was not validly registered. (Ibid.) Here, the undisputed evidence shows that the temporary identification was located on the lower front windshield on the passenger side of plaintiff’s car. There is no indication that either officer saw this sticker or was even in a position to see it before initiating the traffic stop. Indeed, each officer confirmed with a pre-stop license plate check that the registration was expired, and neither license check gave any indication that registration was in progress.
Accordingly, the authority on which plaintiff relies in asserting that a jury question exists where “the evidence is disputed as to whether or not an officer saw evidence of a temporary registration . . .” does not apply. (See U.S. v. Wilson (4th Cir. 2000) 205 F.3d 720, 724.) As there also is no indication that either officer made a “good faith mistake of law,” People v. White (2003) 107 Cal.App.4th 636, 643 is equally inapposite.
Plaintiff also attempts to raise a factual issue by challenging the officers’ motives for the initial stop, claiming that Officer Morillas stopped her on the outstanding warrants and that Officer Parsons stopped her because he was on the lookout for another Dodge Intrepid used in illegal drug activity. We reject her characterization of the footnoted
exchange with Officer Morillas at his deposition. The evidence is uncontroverted that Officer Morillas had dispatch run plaintiff’s license plate before he stopped her and learned that her registration was expired and that he did not do a warrant check or know about the warrants before he initiated the stop.
Plaintiff relies on the following examination at Officer Morillas’s deposition to establish the alternate purpose she asserts:
We also disagree with plaintiff’s interpretation of Officer Parsons’s deposition testimony, which indicates only that his earlier briefing initially called his attention to her vehicle, not that he stopped her for this reason. Although he called in the stop as a “suspicious” vehicle, this is not inconsistent with his testimony that he believed that plaintiff’s registration tab was expired. He was aware that a Dodge Intrepid was involved in potentially dangerous activity and was not required to predict before initiating the stop the course it would take. In any case, a traffic stop based on a reasonable suspicion of a Vehicle Code violation is lawful, even if the officer’s actual motive is to investigate an unrelated crime. (Whren, supra, 517 U.S. at p. 813.)
We reject plaintiff’s contention that neither officer told her the reason he pulled her over. (See ante, fn. 2.)
The September 2004 Incident
We turn now to the lawfulness of plaintiff’s encounter with Sergeant Curtin and Officer Wilson in September 2004. Assuming that this incident constituted a detention, we hold that it was constitutionally valid. An officer may lawfully conduct an investigatory detention if specific and articulable facts, along with their related inferences, warrant such an intrusion. (People v. Britton, supra, 91 Cal.App.4th at p. 1118.) As explained above, a temporary detention for questioning or another limited investigative purpose is lawful if officers have a reasonable suspicion of criminal activity. (In re Tony C., supra, 21 Cal.3d at p. 894.) “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Cortez, supra, 449 U.S. at p. 417, fn. omitted.) We consider the totality of the circumstances based on the information available to the officer and determine whether the whole picture raises a particularized and objectively reasonable suspicion of wrongdoing. (See id. at p. 418; Beck v. Ohio (1964) 379 U.S. 89, 91; Sokolow, supra, 490 U.S. at p. 9 [if, when "taken together[,] they amount to reasonable suspicion"].) The reasonable suspicion standard requires “considerably less” than proof of wrongdoing by a preponderance of the evidence and is less demanding than that for probable cause. (In re Tony C., supra, 21 Cal.3d at pp. 891, 907-908 [arrest requires probable cause to believe a specific crime has been committed; “[a] detention requires a lesser showing of probable cause to believe nonspecific criminal activity is afoot (i.e., unusual activity related to crime),” italics omitted]; Sokolow, supra, 490 U.S. at p. 7.)
We conclude based on a number of factors that the circumstances gave rise to a reasonable suspicion of criminal activity. Plaintiff was sitting in a car 17 yards away from a parking lot through which an armed robber had escaped only two minutes earlier. The officers noticed the car because it was idling, had no driver, and was parked askew, apparently in a hurried fashion. Plaintiff’s demeanor and behavior when officers approached her heightened Officer Wilson’s suspicions that she was personally involved in the robbery or protecting the robber. Instead of rolling her window down when Officer Wilson approached, she spoke to him nervously through a crack at the top of her window. She became increasingly nervous as the encounter continued, and she admits that she was reluctant to provide information to the officer. We then consider these circumstances from the perspective of the officer, who did not know plaintiff’s previous experience with police during this period and reasonably believed that her actions and attitude reflected guilt or fear of apprehension. (See Beck v. Ohio, supra, 379 U.S. at p. 91.) Taken together with the discrepancy between the names of the driver and the vehicle’s owner, these factors create a reasonable suspicion that the Mustang might have some connection to the robbery and justify a reasonable belief that further investigation was warranted.
The trial court correctly opted to disregard plaintiff’s expert witness on the issue of the reasonableness of this police detention. When the facts are undisputed, the reasonableness of a detention is a question of law for the court. (People v. Benites (1992) 9 Cal.App.4th 309, 320; see People v. Overten (1994) 28 Cal.App.4th 1497, 1504.) There is no dispute as to the circumstances the officers faced. Thus, to the extent plaintiff’s expert opines as to the reasonableness of the officers’ suspicion, he invades the province of the court.
B. Racial Violence (Civ. Code, § 51.7) (Fourth Cause of Action)
We reject plaintiff’s contention that race was a substantial factor in these detentions. We note first that the FAC contains no factual allegation implicating race in these detentions; it simply tracks the language of section 51.7 and asserts in support of plaintiff’s constitutional causes of action the conclusionary allegation that she was detained solely on the basis of her race. Plaintiff also has not produced any evidence of violence or threat of violence on account of her race in connection with her detentions. Even assuming a factual issue exists as to whether Officer Morillas made a racial remark and ripped up the mug shot profile after he stopped plaintiff, the undisputed evidence shows that race played no role in his decision to initiate the stop. This is true with regard to Officer Parsons as well. Both the first and second detentions occurred at night, the windows of plaintiff’s car were tinted, and neither officer was able to determine the driver’s race before he approached the vehicle. To constitute a valid cause of action under Civil Code section 51.7, plaintiff must establish intentional discrimination, i.e., the police acted as they did in stopping her car because of an intentional racial bias towards her, a mental state absent from her presentation here. (See Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880-881, relying on CACI No. 3023 [to establish a violation of the Ralph Act (Civ. Code, § 51.7), a plaintiff must show “[t]hat a motivating reason for [the defendant’s] conduct was [his/her] perception of [the plaintiff’s] [race or color]”].) The police stops here arose because of improper auto registration tags.
As plaintiff did not contend below that either arrest or the officers’ use of force was racially motivated, we consider only her detentions in evaluating her fourth cause of action for racial violence (Civ. Code, § 51.7).
With regard to the third detention, plaintiff asserts that the officers detained her because “they thought that [she], a Black woman[,] would likely be with a Black man.” Even if the disputed circumstances of this detention—having officers surrounding the car in which she was sitting and using a forceful tone of voice—constituted a threat of violence under section 51.7, plaintiff fails to provide any authority establishing that this alleged motivation satisfies the statute's requirement that the threat occur “on account of race.” Moreover, she fails to cite to any evidence that the race of the suspect played any role in the officers’ decision to detain her.
Plaintiff also asserts in support of this cause of action that “[t]he warrants at issue, which lacked in particularity, generally called for the arrest of a ‘Black’ female.” It is undisputed that the officers did not discover the warrants until after the initial detention. Accordingly, this contention relates only to the arrests, which plaintiff did not raise below in support of her section 51.7 cause of action, and we disregard it. (See Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131 (Gonzalez); Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 219-225.) We also do not consider plaintiff’s speculation for the first time in her reply brief that the officers detained her after learning from the warrants that she was Black. (See REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)
II. The Arrests
Plaintiff's third (Civ. Code, § 52.1) and fifth (false imprisonment) causes of action arise from her arrests, which she contends were unreasonable and on invalid warrants.
A. Third Cause of Action (Civ. Code, §§ 52.1)
On appeal, plaintiff focuses solely on the interference “by threats, intimidation, or coercion” element of section 52.1 and fails to establish a predicate constitutional violation in connection with her arrests. She simply claims she provided evidence below that Officer Morillas lacked probable cause for her September 3, 2003 arrest, and concludes generally that “[a] triable issue of fact existed as to whether Respondents had . . . probable cause to arrest her as to these incidents.” She provides no factual analysis of probable cause deficiencies or authority discussing unreasonable search and seizure in connection with the arrest. She has not met her burden on appeal to show error in this regard.
To the extent plaintiff relies on the Fourth Amendment’s requirement of reasonable particularity in asserting her arrests on the warrants as unreasonable seizures, we conclude nonetheless that she has failed to raise a triable issue as to a constitutional violation. She claims that the warrants were deficient in that they identified the subject as “Stancy Nesby” and contained only a date of birth, race, and gender, but did not include any physical description of the subject, such as height, weight, eye color, or hair length, or other identifying information, such as a driver’s license number. We are not persuaded, however, by the authority with which she supports this assertion and therefore conclude that the warrants were constitutionally valid.
Plaintiff contends the warrants were deficient because they “did not contain any physical description of Ms. Nesby . . . [and] provided an address that [she] has never lived at . . . .” We note that the identifying information in the warrant relates to the person sought thereunder, not to plaintiff.
See discussion of the arrest warrants, post, pp. 22-25.
An arrest of the wrong person does not violate the Fourth Amendment if the police have probable cause to arrest the subject of the warrant and reasonably mistake the arrestee for the person sought. (Hill v. California (1971) 401 U.S. 797, 802 (Hill).) Plaintiff does not challenge probable cause for the impostor’s arrest under the warrants. She also has failed to show that the officers acted unreasonably in arresting her. The touchstone of reasonableness under the Fourth Amendment is sufficient probability, not certainty. (Illinois v. Rodriguez (1990) 497 U.S. 177, 185-186 [does not require that police officers executing warrants always be correct, but that they always be reasonable]; Maryland v. Garrison (1987) 480 U.S. 79, 87-88 [officer’s reasonable misidentification of a person does not invalidate a valid arrest].) Officer Morillas investigated the outstanding warrants with a records check using plaintiff's name, date of birth, race, and gender and then provided her height, weight, and driver’s license number to dispatch, which confirmed that SFPD had verbally verified the warrants for a suspect who met this particular description. Officer Wilson also requested a records check for plaintiff's name and date of birth. Officers in the field may reasonably rely on information they obtain from official sources. (People v. Estrada (1965) 234 Cal.App.2d 136, 152; see United States v. Hensley (1985) 469 U.S. 221, 231, citing United States v. Robinson (9th Cir. 1976) 536 F.2d 1298, 1299.)
Plaintiff relies on Powe v. City of Chicago (7th Cir. 1981) 664 F.2d 639, 645 (Powe), asserting the heightened obligation of law enforcement to describe a warrant subject when it does not provide his correct legal name. However, in Powe, the authorities were not certain of the suspect’s true name, and the warrant listed several names. (See id. at p. 647, 642-643.) When uncertainty is present, more description may be needed. Still, the Court noted: “We do not hold that every arrest is necessarily invalid whenever it incorrectly names the intended arrestee and contains no other description of him.” (See id. at p. 647.) As another federal case held when the wrong person was named in an arrest warrant: “[W]here there is a facially valid warrant or probable cause for arrest, . . . the only question is whether it was reasonable for the arresting officers to believe that the person arrested was the one sought.” (See Gero v. Henault (1st Cir. 1984) 740 F.2d 78, 84-85.) In this instance, the warrants did not contain a fictitious name, only named the subject incorrectly.
Given plaintiff's unusual name, her date of birth matching the one in the warrants, and the officers' efforts in this regard, we conclude that the officers' mistaken beliefs that she was the subject of the warrants were reasonable. As the Supreme Court has noted, “[W]e find no reason to disturb . . . the conclusion that ‘[w]hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest.’ ” (See Hill, supra, 401 U.S. at p. 802). The reasonableness of police conduct here is measured by the circumstances existing at the time of the officers’ actions and not from a standard of hindsight.
In so holding, we conclude that the officers reasonably declined to accept plaintiff’s innocence on her say-so alone or to recognize without question the validity of the mug shot profile and the truth of the information in the newspaper article. Indeed, it would have been unreasonable for them to do so. Nor did these factors require the officers to investigate further. Once probable cause has been established, an officer is not required to explore an arrestee’s claim of innocence. (Baker v. McCollan (1979) 443 U.S. 137, 145-146 [“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 . . . .”].)
B. False Imprisonment (Fifth Cause of Action)
Plaintiff's fifth cause of action for false imprisonment fails for similar reasons. False imprisonment is defined as “the unlawful violation of the personal liberty of another.” (Pen. Code, § 236.) To establish civil liability in this regard, plaintiff must establish that the officers engaged in: nonconsensual, intentional confinement for an appreciable length of time, without lawful privilege. (See Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) False arrest is one way of committing a false imprisonment. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752, fn. 3); Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 728, 735 (Moore).) A lawful arrest is privileged and not “false” and, therefore, not actionable. (Lopez v. City of Oxnard (1989)207 Cal.App.3d 1, 10 (Lopez); 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000), Crimes Against the Person, § 83, pp. 699-700; see Pen. Code, § 847, subd. (b) [precluding liability for lawful arrests when peace officers act within the scope of their authority].)
On appeal, it is not clear whether plaintiff contends that her detentions constituted false imprisonment, as she discusses their lawfulness only in terms of the Fourth Amendment and addresses false imprisonment separately in connection with the arrests. Nonetheless, as she relied solely on her arrests below to support her fifth cause of action, we consider her detentions only in connection with her third and fourth causes of action for interference with civil rights and racial violence.
Validity of the Warrants
Plaintiff disputes the lawfulness of her arrest, claiming the warrants were invalid. For purposes of the privilege, a warrant supports a lawful arrest if it is valid on its face. (See Muller v. Reagh (1963) 215 Cal.App.2d 831, 836-837 (Muller); Garcia v. City of Merced (E.D.Cal., Jan. 10, 2008, No. 1: 07-CV-00867-OWW-DLB) 2008 U.S. Dist. Lexis 2135.) Process is facially valid if it proceeds from a court having jurisdiction of the subject matter and contains nothing which ought reasonably to apprise the officer that it was issued without authority. (Muller, supra, 215 Cal.App.2d at pp. 837-838; Vallindras v. Massachusetts etc. Ins. Co. (1954) 42 Cal.2d 149, 154 (Vallindras) [“ ‘[u]nless there is a clear absence of jurisdiction’ ”].) If a warrant appears to be valid to an ordinarily intelligent and informed layman, and the issuing court has subject matter jurisdiction, the officer may not be held liable. (Lopez, supra, 207 Cal.App.3d at p. 10.) We conclude that the warrants in this case were facially valid. (See Evid. Code, § 452, subd. (d).)
In so holding, we note that in plaintiff’s federal action against the City of Oakland in connection with her detention on the San Francisco warrants (Nesby v. City of Oakland (N.D.Cal., Mar. 19, 2007, No. C 05-3555JL) 2007 U.S.Dist. Lexis 22574), the district court determined that the warrants were facially valid and met the particularity requirements of Penal Code section 850 and the Fourth Amendment. (See id. at pp. 38-42.) That federal case is now final. If enforcement of a facially valid warrant in this case and in the final federal litigation, by itself, is a predicate for certain tortious conduct, then issue or claim preclusion may apply based on the federal proceedings. (See City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077, 1084; Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 651.) The primary rights are equal or similar.
Plaintiff contends, however, that the warrants were defective under Penal Code section 850, subdivision (b) (section 850(b)), as they did not include a particularized description of the impostor, describing her only as a Black female and omitting her height, eye color, weight, and hairstyle. Section 850(b) provides that telegraphic warrants and abstracts of original warrants “shall contain the following information: the warrant number, the charge, the court or agency of issuance, the subject’s name, address and description, the bail, [and] the name of the issuing magistrate or authority . . . .” This provision does not purport to require law enforcement officers to describe the subject with particularity or to guarantee the accuracy of the information included in the abstract, as plaintiff suggests. Indeed, it requires only a “description” of the subject, which the warrants in this case provided. (See ibid.)
Plaintiff also claims that the court in Lopez, supra, 207 Cal.App.3d 1 “identified at least [five] requirements for a valid warrant: (1) accurate physical description, (2) proper name, (3) correct address, (4) accurate telephone number[,] and (5) correct driver’s license number.” We disagree. In discussing the reasonableness of the precaution taken by the officers, the Lopez court mentioned that the warrant accurately described the plaintiff and included this particular information. (Id. at p. 8.) It did not purport to hold, however, that a warrant is facially invalid unless it contains all of this information. (See ibid.) Indeed, the validity of the warrant was not at issue in Lopez. (Ibid.)
We note, in addition, that Lopez was decided before the Legislature amended Civil Code section 43.55 in 2005 to define “regular upon its face” in a manner that includes the bench warrants and electronic abstracts in this case. (See post, pp. 25-26.)
We also are not persuaded by plaintiff’s contention that the warrants were facially invalid because the subject was not correctly named or described with particularity. The authority on which she relies in this regard addresses the constitutionality of an arrest under the Fourth Amendment. A different standard governs the validity of warrants for purposes of civil liability. (See Vallindras, supra, 42 Cal.2d at p. 155[holding it proper to recognize one standard for habeas corpus relief and another for civil damages from a law enforcement officer].) Moreover, as established above, plaintiff has not shown the warrants in this case violated the Fourth Amendment. (See ante, pp. 19-22.)
Plaintiff contends that the officers were “required to confirm the absence of a patent irregularity.” An officer has no duty, however, to search for facts not apparent on the face of the warrant. (Lopez, supra, 207 Cal.App.3d at p. 10.) Moreover, in Allison v. County of Ventura (1977) 68 Cal.App.3d 689 (Allison), the authority on which plaintiff relies in this regard, the court noted the unusual nature of the warrants, as they arose in a civil action. (See id. at pp. 701-703.) The court concluded that the officers should have determined that the warrants did not contain the information required by the statute authorizing their issuance. (See id. at pp. 701-704.) Even assuming that Penal Code section 850 is analogous to such statutes, it requires only a “description,” which the warrants provide. On their face, they also do not provide any indication that “Stancy Nesby” is not their true subject. Plaintiff’s own authority acknowledges that “[a]n arrest warrant that correctly names the person to be arrested generally satisfies the [F]ourth [A]mendment's particularity requirement, and no other description of the arrestee need be included in the warrant.” (See Powe, supra, 664 F.2d at p. 645.)
Immunity
In any case, we conclude that the officers are immune from liability under Civil Code section 43.55. Civil Code section 43.55 precludes liability for an arrest on a warrant that is “regular upon its face” if the officer acts without malice and with the reasonable belief that the person arrested is the one to whom the warrant refers. (Civ. Code, § 43.55, subd. (a); see Rest.2d, Torts, § 125, com. (f), pp. 223-224 [the arresting officer may reasonably rely on the name stated in the warrant “unless he knows or is convinced beyond a reasonable doubt that a mistake has been made. [He is] privileged to arrest the person to whom the name applies with complete accuracy . . . .”].) The warrants on which the arresting officers relied were regular on their face. Under subdivision (b) of Civil Code section 43.55, a “warrant 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.” (See id. at subd. (b).)
In evaluating reasonableness, the Restatement Second emphasizes the officer’s duty to serve a warrant. (See Rest.2d, Torts, § 125, com. (f), pp. 223-224.) California also imposes such a duty on peace officers. (See Pen. Code, § 142; Code Civ. Proc., § 262.1 .)
We turn, therefore, to whether plaintiff has raised a triable issue of fact as to the reasonableness of each officer’s belief that “the person arrested is the one referred to in the warrant.” (Civ. Code, § 43.55, subd. (a).) Plaintiff overstates the holding in Bell v. State of California (1998) 63 Cal.App.4th 919 (Bell) in asserting that “[l]aw enforcement officers are liable for false arrest, and not entitled to immunity, in circumstances where they unreasonably enforce warrants and arrest innocent citizens.” The issue here is not whether the officers acted reasonably, as plaintiff asserts, but whether they used “reasonable judgment in making a proper identification of the party to be arrested.” (See Allison, supra, 68 Cal.App.3d at pp. 698-699 [rejecting argument that the reasonableness component extended beyond determination of identity].) Plaintiff correctly asserts, however, that “[a] police officer must use reasonable prudence and diligence to determine whether a party being arrested is the one described in the warrant [and] may not refuse to act upon information . . . [that] discloses the warrant is being served on the wrong person.” (See Lopez, supra, 207 Cal.App.3d at p. 7.) We must consider this obligation, however, in light of the circumstances under which law enforcement officers must operate and their corresponding duty to execute all process that is regular on its face. (See id. at pp. 7-8 [the need for swift response and “on-the-spot evaluations” in chaotic conditions]; Code Civ. Proc., § 262.1; Vallindras, supra, 42 Cal.2d at p. 154; Allison, supra, 68 Cal.App.3d at p. 697.) In applying this standard, we do not force police officers to choose between liability for false arrest and charges of dereliction of duty or criminal liability for failing to execute regular process. (Lopez, supra, 207 Cal.App.3d at pp. 7-8; see Pen. Code, § 142.)
Penal Code section 847, subdivision (b) provides similar immunity to officers for lawful arrests or those they reasonably believe to be lawful.
In making this determination, we note, significantly, that plaintiff is not claiming that the officers arrested a person not named in the warrants. Indeed, she is the person to whom the warrants specifically refer. She contends, rather, that the officers failed to act with reasonable diligence in determining whether she was the true subject of the warrants, and asserts that they were required to investigate her claims that the warrants issued in her unique name were, in fact, for the arrest of someone else. In other words, she faults the officers for not ignoring what the criminal court's order said and acting instead on what she claimed it meant. Specifically, she contends that Officer Morillas should have conducted “further diligence” into the mug shot profile she showed him before her arrest and refused to enforce the warrants after she showed him a picture of the impostor that did not resemble her. She further contends that Sergeant Curtin and Officer Wilson should have spoken with her attorney before her arrest and released her after discovering a newspaper article detailing the theft of her identity, the erroneous issuance of bench warrants in her name, and her prior arrests on the warrants. Once again, we disagree.
The trial court excluded from evidence the majority of the photographs to which plaintiff refers in contending that she “looks nothing like the impostor identified in the SFPD [mug shot profile].” The remaining photographs she cites are of herself and are of poor quality. Accordingly, we are unable to discern whether a physical resemblance exists and do not reach this issue.
Candidly, plaintiff was not asking the officers to look further into whether she was the person named in the warrants, but to make an in-the-field determination that a criminal court had improperly issued these warrants. When a warrant is regular on its face, arresting officers simply have no duty to look beyond the warrant itself to the procedure by which it was issued or to the propriety of its issuance. (Lopez, supra, 207 Cal.App.3d at p. 7.) Indeed, officers must execute such process despite defects in the earlier proceedings. (Code Civ. Proc., § 262.1; Vallindras, supra, 42 Cal.2d at p. 154; Allison, supra, 68 Cal.App.3d at pp. 697, 700 [officers not required, as a condition of the plaintiff’s arrest, to call attorney whose name and phone number were noted on the warrant, as this was “merely a tool to assist the officer in carrying out the direction of the court”].)
Accordingly, we reject plaintiff’s argument that the officers had the obligation to obtain additional information in the field, including the impostor's physical description, noting, in any case, that additional investigation would not have resulted in a different outcome. The impostor used plaintiff’s information, and their physical differences were not sufficiently determinative to confirm plaintiff’s innocence definitively without the need for fingerprint analysis.
In Nguyen v. County of Orange (C.D.Cal., March 3, 2000, No. CV98-5286NM) 2000 U.S.Dist. Lexis 19616, 3-4, 21 [nonpub. opn.], Judge (now Justice) Manella upheld an arrest of the wrong person on a facially valid warrant notwithstanding discrepancies between the plaintiff and the physical description in the warrant where the names, dates of birth, and physical descriptions were similar. (See Castro v. City of Hanford (E.D.Cal. 2008) 546 F.Supp.2d 822, 828 [“[P]ersonnel were entitled to rely on process and orders apparently valid on their face and were not required to look behind a valid arrest warrant to investigate the validity of a ‘piece of paper’ handed to them by plaintiff”]; Lopez, supra, 207 Cal.App.3d at 10-11.)
We also reject plaintiff’s assertion, in reliance on Bell, supra, 63 Cal.App.4th at pp. 928-929, that “[e]nforcing a warrant where law enforcement has a picture of the wanted person which does not match the person in front of them is not reasonable.” Bell is distinguishable. In that case, the officers already had a picture of the arrestee; they did not simply accept a document from the suspect at face value. (See id. at p. 928; see also ante, fn. 24.) He also was not the subject named in the arrest warrant, and the officers did not accept his offer to show them his driver’s license. (Bell, supra, 63 Cal.App.4th at p. 928.) The court found substantial evidence that the officers had not acted in good faith and concluded that they had identified the plaintiff in a careless manner, as they had no basis other than his race and demeanor for concluding that he was the person sought. (Ibid.) Here, there is no evidence that the officers acted in bad faith, and the undisputed facts confirm as a matter of law that the officers had a reasonable belief that the warrants called for plaintiff’s arrest.
The authority plaintiff cites for the first time in her reply brief does not call for a different result. We conclude, for the reasons set out by the court in Lopez, supra, 207 Cal.App.3d at pp. 8-9 that Robinson v. City and County of San Francisco (1974) 41 Cal.App.3d 334, and Smith v. Madruga (1961)193 Cal.App.2d 543, are inapposite in these circumstances.
III. Excessive Force (Third Cause of Action (Civ. Code, §§ 52.1))
We reject plaintiff’s attempt to raise a triable issue of fact under Civil Code section 52.1, contending that Officer Wilson and Sergeant Curtin used excessive force, in violation of her right to be free from unreasonable seizure. Relying on Penal Code section 835a, which allows officers who have reasonable cause to believe that an arrestee has committed a public offense to use “reasonable force” to effect the arrest or overcome resistance, the City contends that plaintiff failed to dispute below that she resisted arrest and that the officers used only minimal force.
The City did not contend below that plaintiff could not show the officers used excessive force to effect her second arrest. Instead, it correctly pointed out that the FAC contained only conclusory allegations in this regard and relied on arguments relating to the statutory requirements of section 52.1. The City’s undisputed material facts assert only that Sergeant Curtin directed Officer Wilson to arrest plaintiff, but do not include any facts relating to the conduct of the arrest itself. Still, the City produced the following evidence: The officers told plaintiff she was under arrest, but she was not compliant, and became “verbally and physically agitated” and “physically combative,” to avoid being handcuffed. She continued to resist arrest despite the officers’ verbal commands that she stop resisting, and they finally brought her hands behind her back and placed her in handcuffs. The officers used only the force necessary to overcome plaintiff's resistance and effect her arrest.
In the FAC, plaintiff alleges generally that Officer Wilson and Sergeant Curtin “used unreasonable and excessive force and caused her physical injury.”
Plaintiff did not take issue below with the City’s failure to assert undisputed facts in connection with excessive force and does not do so on appeal. Instead, she produced evidence and argument in response to the merits of the cause of action. Accordingly, we do so as well, concluding that she has waived this argument by not raising it below. (See Gonzalez, supra, 122 Cal.App.4th at p. 1131; Baugh v. Garl (2006) 137 Cal.App.4th 737, 746.) We conclude that the City met its burden of production by challenging plaintiff’s ability to assert a cause of action for excessive force under Civil Code section 52.1. We further conclude that plaintiff has not met her burden in opposing summary judgment or on appeal to show a triable issue of fact on this issue.
On appeal, plaintiff supports her excessive force cause of action under Civil Code section 52.1 with citations to her own declaration and to medical records the trial court excluded, as not properly authenticated. Moreover, her argument amounts to little more than a claim that she sustained an injury during the arrest. She asserts that the officers “ripped” her out of her vehicle, “forced” her hands behind her back, “jacked her arms up towards her back,” and “broke” her finger. She contends further that she was “subjected to such force that [officers] broke and permanently disfigured her finger” and cites to evidence that the officers increased the pressure of their hold even after she screamed in pain and told them that her finger was injured and that they were hurting her. Nonetheless, plaintiff does not deny that she was noncompliant, agitated, and physically combative or that the officers used only the force necessary to handcuff her. She therefore has failed to create a triable issue of fact as to the reasonableness of the force used by the officers.
IV. Negligence (Seventh Cause of Action)
In the FAC, plaintiff’s seventh cause of action asserts a breach of the duty of ordinary care and negligent hiring, training, and supervision. The City disputed below the existence of a duty of care, citing Lopez and contending that the officers had no duty to investigate a facially valid warrant. If true, this assertion precludes both ordinary negligence and negligent hiring, training, and supervision. (See Artiglio, supra, 18 Cal.4th at p. 614; Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1342 [no liability absent a causal connection between negligent hiring and harm].) The City met its burden as the moving party to negate essential elements of these causes of action.
In any case, the FAC contains no factual allegations of negligence by any employee responsible for hiring, supervising, and training the officers involved in plaintiff’s detentions and arrests, and the City itself may not be held directly liable in this regard. (See Gov. Code, § 815; Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183; de Villers, supra, 156 Cal.App.4th at pp. 251-257.)
In response, plaintiff asserted the existence of a special relationship created by an alleged promise of Officer Morillas to contact SFPD officials when he arrived at the station and to compare her fingerprints with those of the impostor. The trial court rejected this argument, and we do so as well.
The existence of a duty is an essential element of a negligence cause of action and the issue on which plaintiff’s seventh cause of action turns. (See Artiglio, supra, 18 Cal.4th at p. 614.) This is a question of law for the court. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750.) Those who have not created a risk of harm generally have no duty to take affirmative action to assist or protect another. (Williams v. State of California (1983) 34 Cal.3d 18, 23 (Williams).) Like private citizens, public employees generally have no duty to come to the aid of others. (Ibid.; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129 (Zelig); Walker v. County of Los Angeles (1987) 192 Cal.App.3d 1393, 1398 (Walker).) Thus, although law enforcement officers owe duties to the public as a whole, they take on no greater obligation to individual citizens. (See Williams, supra, 34 Cal.3d at p. 24, fn. 3.)
A duty of protection or assistance may arise from a special relationship created by an employee’s words or conduct. (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 704 (M.B.); Minch v. Department of the California Highway Patrol (2006) 140 Cal.App.4th 895, 905 (Minch).) Courts apply this doctrine narrowly to “a limited class of unusual cases.” (Minch, supra, 140 Cal.App.4th at p. 905.) To establish such a relationship, plaintiff must demonstrate that an employee assumed a duty to her greater than that generally owed to members of the public. (See Walker, supra, 192 Cal.App.3d at p. 1398.) An officer may assume such a special duty by implied and express promises to provide a particular level of protection. (See Zelig, supra, 27 Cal.4th at p. 1129; Walker, supra, 192 Cal.App.3d at p. 1399; Adams v. City of Fremont (1998) 68 Cal.App.4th 243. 281-282 (dis. opn. of Klein, J.).)
To establish a special duty on this basis, however, plaintiff must show detrimental reliance, specifically that she worsened her position in reliance on Officer Morillas's alleged promise. (See M.B, supra, 233 Cal.App.3d at p. 705, fn. 2 [rejecting liability where the police have not induced reliance on a specific promise of protection and concluding that the risk of harm as the result of the employee’s acts must be something more than that to which the plaintiff was already exposed].) Plaintiff has not produced evidence of reliance and has therefore failed to create a triable issue of fact in this regard.
Plaintiff contends that “a promise and consequent reliance are not indispensable elements in every special relationship case,” but immediately contradicts her own argument, noting that such a relationship may arise “for instance, when a citizen in a situation of dependency detrimentally relies on a police officer for protection.” Indeed, reliance is required in this context as well. (See Minch, supra, 140 Cal.App.4th at pp. 902-903 [special relationship cannot arise solely from dependency.) In any case, plaintiff did not present this argument below or produce evidence or analysis establishing such dependency. Accordingly, we conclude that the defendants are entitled to judgment as a matter of law on plaintiff’s seventh cause of action.
Plaintiff cites Williams, supra, 34 Cal.3d 18 in contending that an “express promise and reliance thereon are not indispensable elements of a special relationship.” The court in Williams went on to state, however: "Such a relationship has also been found when the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection." (See id. at pp. 25, 28, fn. 9, italics omitted [disapproving Clemente v. State of California (1980) 101 Cal.App.3d 374, 379-380 on this ground].)
V. IIED (Sixth Cause of Action)
On appeal, plaintiff contends that the officers’ “improper enforcement of the warrants” and “excessive force” amounted to IIED. Below, she supported this cause of action by reference to the officers’ alleged intimidation and threats and their arrests despite evidence of her innocence. The City claims that it is entitled to judgment as a matter of law on this cause of action because its officers had no duty to investigate facially valid warrants, and plaintiff has not produced evidence otherwise establishing a triable issue of fact in this regard. We agree.
Although neither party expressly addresses the elements of this cause of action, we note that plaintiff must show conduct that is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) We have concluded above that plaintiff’s detentions and arrests were lawful, that the officers had no duty to investigate her claims of innocence, and that she has failed to produce evidence to create a triable issue of fact regarding the reasonableness of the force used by officers Wilson and Curtin. Accordingly, plaintiff has not produced evidence of extreme and outrageous conduct to show that she can satisfy this essential element.
DISPOSITION
The judgment is affirmed, with costs to defendants.
We concur: SIMONS, ACTING P. J., NEEDHAM, J.
“Q. . . . Sir, do you recall . . . why you pulled her over?
“A. Yes.
“Q. . . . First off, do you recall the date of the arrest?
“A. No.
“Q. . . . Do you recall what month it was in?
“A. Maybe September. I don’t remember.
“Q. . . . Do you recall the year?
“A. It was ’03?
“Q. Yeah. You’re correct on that. All right. Why do you recall
you pulled over Ms. Nesby?
“A. Just the reason why I’m here. It got brought up.
“Q. . . . What got brought up, sir?
“A. That she was arrested, and someone else—it turned out someone else had used her name.”
We conclude that this colloquy does not permit a reasonable inference that Officer Morillas stopped plaintiff because of the outstanding warrants. This discussion suggests the reason for the officer’s recall of the stop, not why he initiated it.