Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC327925
Frank Y. Jackson, Judge. Affirmed in part and reversed in part.
Law Offices of Dale K. Galipo and Dale K. Galipo for Plaintiff and Appellant.
Raymond G. Fortner, Jr., County Counsel, Roger Granbo, Ali Reza Sabouri and Adrian Gragas, Deputy County Counsel, for Defendants and Respondents.
ARMSTRONG, J.
Genoa Peak appeals from the judgment entered in favor of respondents County of Los Angeles and County employees Daniel Inez and Shawn Horning, on her complaint against them. We affirm in part and reverse in part.
Facts
This case arises from plaintiff's January 26, 2004 arrest by Inez and Horning, both Los Angeles County Sheriff's Deputies, after a traffic stop. The arrest was for a violation of Penal Code section 148, subdivision (a), resisting arrest, and plaintiff's contention is that the stop and arrest were without probable cause and were accompanied by the use of excessive force. She made a claim on the County of Los Angeles, which rejected it as untimely. She did not seek leave to present a late claim, but instead filed a complaint for negligence, battery, intentional infliction of emotional distress, false arrest and false imprisonment, and violation of her civil rights under 42 United States Code section 1983 (hereinafter "section 1983"). She sought punitive damages against the individual defendants.
Defendants demurred to all causes of action except the civil rights cause of action (that is, to all the state law claims) on the ground that plaintiff had failed to comply with the claim filing requirements of the Tort Claims Act. The court sustained the demurrer without leave to amend. Defendants then moved for summary judgment or summary adjudication on the section 1983 claim and on the claim for punitive damages. As to the 1983 claim, they contended that on the undisputed facts, plaintiff could not establish a claim against the County because she had not established grounds for liability under Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 [98 S.Ct. 2018, 56 L.Ed.2d 611], and could not establish a claim against the individual defendants because they were entitled to qualified immunity under Saucier v. Katz (2001) 533 U.S. 194, 201 [121 S.Ct. 2151, 150 L.Ed.2d 272]. On the claim for punitive damages, defendants contended that the undisputed facts showed no fraud, malice, or oppression. The court granted the motion and entered judgment in favor of all defendants.
On this appeal, plaintiff contends that the court erred in sustaining the demurrer. She challenges only one aspect of the court's ruling on summary judgment, contending that there is a triable issue of fact on whether the individual defendants were entitled to qualified immunity.
Discussion
The Demurrer
Under the California Tort Claims Act, no suit can be filed against a public entity unless a claim has previously been presented to that entity. On a tort action for personal injury such as this one, the claim must be presented by mailing or delivery within six months of the accrual of the cause of action. (Gov. Code, §§ 911.2, 915.) Where a case is subject to the Tort Claims Act, "failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)
This complaint alleged that "plaintiff has complied with applicable claims statutes." However, with their demurrer, defendants submitted the declaration of counsel to the effect that the County received plaintiff's claim on July 29, 2004, that the envelope containing the claim was postmarked July 27, 2004, and that the proof of service showed a July 26 service date, but did not indicate a method of service. Thus, on August 5, 2004, the County informed plaintiff that her claim was untimely in that it had not been presented within six months after the incident. She was advised that she could apply for leave to present a late claim (Gov. Code, § 911.4), but did not do so. The County's August 5 notice to plaintiff was attached to the declaration, as was plaintiff's claim, the proof of service, signed by Sandra Rivera, and a copy of the outside of an envelope addressed to the County, with plaintiff's counsel's office as the return address, postmarked July 27, 2004.
In opposition to the demurrer, plaintiff did not object to the court's consideration of factual matters outside the complaint, but instead presented facts of her own. Plaintiff's counsel declared that he signed the claim on July 26, 2004, and that on that date "my office placed in the mail the claim form." Counsel also declared that "For purposes of continuing the date of mailing, my office maintained a copy of the envelope in which the claim was mailed. [¶] Attached hereto as Exhibit "1" is a true and correct copy of the envelope in which the claim was mailed, bearing the date of July 26, 2004." The exhibit, a copy of an envelope addressed to the County, with plaintiff's counsel's office as the return address, does show that postmark. There was no declaration from Rivera, who signed the proof of service.
With their reply, defendants submitted a new declaration of counsel, that exhibit 1 to plaintiff's pleading was not a true and correct copy of the envelope in which her claim was presented, and that the true postmark date was July 27, 2004.
Analysis
Plaintiff points out the complaint alleged compliance with the notice requirements of the Tort Claims Act, and contends that the trial court erred when it considered facts outside the complaint. It is of course well established that for purposes of demurrer, the allegations of the complaint are taken as true, and that courts will not look to facts outside the complaint absent a request for judicial notice. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, when plaintiff failed to object to defendants' presentation of facts, and presented facts of her own, she consented to the court's consideration of such facts and waived this contention of error.
Plaintiff also contends that demurrer should not have been sustained because the facts were disputed, arguing that the trial court improperly accepted defendants' evidence and rejected hers. We see no error.
The envelope submitted by plaintiff bears the date of July 26, but that date was placed on the envelope by counsel's office meter. There is, moreover, no evidence of the date the envelope was actually placed in the mail. The proof of service is invalid because it does not indicate a method of service. Counsel declared that on July 26, "my office placed in the mail the claim form," but given that counsel did not mail the letter himself, and there is no declaration from the person who signed the proof of service, we cannot say that the statement is meaningful. Offices do not mail letters, people do. Thus, plaintiff submitted no evidence of the date of mailing. In contrast, the County's exhibit bears a postmark of July 27. Plaintiff suggests that the envelope the County received actually has both dates, and that the post office erroneously placed a second postmark on the envelope his office mailed. A comparison of the two exhibits establishes that this cannot be so.
Plaintiff also argues that we should reverse even if the claim was untimely, because the County was not prejudiced by a day's delay. However, "Compliance with the claims statutes is mandatory [citations]; and failure to file a claim is fatal to the cause of action. [Citation.]" (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.)
The Summary Judgment
Facts
Defendants proffered the declarations of Deputies Inez and Horning, and undisputed facts based on those declarations. Plaintiff proffered her declaration and excerpts from her deposition and those of the deputies, and on that basis disputed many of defendants' facts, and offered undisputed facts of her own.
Defendants' evidence
The deputies saw plaintiff's car fail to make a complete stop at a red light before making a turn. They activated their forward facing red light to make a traffic stop. Plaintiff did not stop, but drove another hundred yards and turned into a parking lot. They activated their rotating lights and siren, but plaintiff drove for another hundred yards before she stopped. Then she got out of the car without being asked, moved directly up to Deputy Horning, and yelled "Why did you stop me?" She was wearing a bulky jacket. She was holding a thick wallet, approximately six inches by four inches by three inches.
Based on the time it took plaintiff to stop her car, the bulky jacket, the fact that she stepped out of the car without being asked, and her rapid approach while yelling, Deputy Horning was concerned for his safety and that of his partner. He grasped plaintiff's right wrist to control her advance and to initiate a pat-down search for weapons. He told plaintiff to put her wallet down, but she refused, and screamed, "Let me go!" He repeated his request and told plaintiff he would not let her go until he checked her for weapons. Plaintiff grabbed her wallet with both hands, said that she would not put it down, and continued to yell "Let me go!"
Plaintiff submitted Deputy Horning's deposition testimony that his practice on all traffic stops was to ask the driver to get out of the car, then ask if he could conduct a pat down for weapons.
Based on this conduct, both deputies suspected that the wallet might contain a weapon or other contraband. To maintain control and to insure the safety of all concerned, Deputy Inez took hold of plaintiff's left arm and the deputies used their body weight to hold her against her car. She screamed and tried to pull away. Deputy Horning called for back up.
Plaintiff intentionally dropped to her knees. Deputy Horning told her to stand up. She did so, but kept screaming. She again tried to pull away, and the officers again used their body weight to hold her against the car and keep her from pulling away. She slammed her wallet on the roof of her car. At about this time, several people left the nearby Hometown Buffet and began to approach the car. Plaintiff's daughter was among them. She yelled "that's my mom," and plaintiff yelled "that's my daughter," and violently tried to pull away. (In his deposition, submitted by plaintiff, Deputy Inez testified that plaintiff "was fighting by attempting to pull away very violently forward, backwards, to the sides with her arms and trying to push off the vehicle.")
Someone from the gathering crowd approached the deputies, distracting them and causing Deputy Inez to draw his weapon. Plaintiff pulled free, got into her car, and reached toward the center floorboard. Fearing that she was reaching for a weapon or attempting to drive away, the deputies guided her out of the car and onto the ground face down. Deputy Inez held her right arm with both hands, and Deputy Horning held her by her left arm and shoulder. Deputy Inez then put his right knee on the center of her back to prevent further resistance while she was handcuffed.
Within 30 minutes after her arrest, plaintiff was transported to Antelope Valley Hospital, where she was given a medical examination and cleared for booking.
Plaintiff was arrested for resisting arrest, although it was undisputed that the district attorney ultimately decided not to prosecute. She was not cited for any traffic violation.
Plaintiff's evidence
Plaintiff declared that she did make a complete stop at the light before turning. She agreed that she did not immediately pull over when the deputies turned on their red light, or when they turned on their rotating lights and siren, explaining that she was looking for a well-lit place in which to stop. She did not get out of the car without being asked, but only opened the door, leaned out, and asked why she had been stopped. A deputy rushed toward her. She asked what the problem was, and he said that she had run a light.
The deputy asked her to get out of the car, and she did so, holding her wallet. (She did not dispute the facts concerning the description of her clothing or the dimensions of the wallet.) The deputy immediately grabbed her by the wrist in a very tight, painful grip. She "let him know that [she] was willing to comply," but that he was hurting her. She told him that she had not run the light and that she had a commercial driver's license, and also said that she was going to pick up her daughter, that she was "going through a little something," and that her daughter's father had just died. The deputy did not tell her to put the wallet down. She did not grab it with both hands or refuse to put it down or slam it on the hood of her car.
Plaintiff's evidence on what happened next is somewhat unclear. She declared that suddenly and unexpectedly, both deputies grabbed her arms and used their body weight to hold her against the car. Her deposition testimony was the second officer did not restrain her until later, after searching her car and wallet.
Plaintiff agreed that she dropped to her knees, declaring that she did so because of the pain. In her deposition she testified that after she stood up, she was "thrown up against my car." She then started "struggling in earnest," because she felt that her life was in danger. She started yelling and screaming "somebody please help me." The officers struggled with her, and she was thrown up against her car "a couple of times" and had her body twisted into unnatural positions. She wanted to break free and get into her car, and struggled with the deputies because they were hurting her.
Plaintiff did not dispute the facts about the person who approached the deputies, and agreed that while the deputies were distracted, she re-entered her car, but declared that she was not reaching toward the center floor board, but had her hands on the steering wheel.
Her deposition testimony was that she was then "snatched out of [her] car" and slammed forcibly down to the ground face first. She had people pulling and pounding on her, and her arms twisted into unnatural positions. Deputy Inez immediately put his right knee into her back. Her face was smashed into the cement and her knee got "banged up." She felt that she could not breathe.
She did not dispute the fact that she was cleared for booking, but did proffer as undisputed that she complained of pain on the way to the hospital, and declared that she still had pain from injuries to her back, neck, right wrist and hand, right knee, and her face.
Plaintiff also proffered as undisputed that Deputy Horning was approximately six feet tall and weighed 240 to 245 pounds, that Deputy Inez was approximately 5 feet 11 inches tall and weighed 185 pounds.
Qualified Immunity
"Section 1983 creates a cause of action against any person who, acting under color of state law, violates rights created by the Constitution and laws of the United States. Qualified immunity is an affirmative defense to such claims." (Macias v. County of Los Angeles (2006) 144 Cal.App.4th 313, 319.) Saucier v. Katz, supra, sets out the standard. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 840.) A court ruling on a claim of qualified immunity must first consider "this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show that the officer's conduct violated a constitutional right? . . . [¶] . . . If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; . . ." (Saucier v. Katz, supra, 533 U.S. at p. 201.) That is, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. [Citation.] The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. [Citation.]" (Id. at p. 202.)
Given Saucier's instruction that the facts be viewed in the light most favorable to plaintiff -- indeed, given the usual standard of review on summary judgment -- defendants' argument, which ignores plaintiff's facts, is unhelpful.
Plaintiff contends that her constitutional rights were violated because both the traffic stop and the arrest were without probable cause, and because the police used excessive force, and that the rights are clearly established.
We begin with the traffic stop. A traffic stop which violates the Fourth Amendment gives rise to a cause of action under section 1983, and cannot be deemed a de minimis violation. (Bingham v. City of Manhattan Beach (9th Cir. 2003) 341 F.3d 939, 947-948.) In order for a traffic stop to be lawful, "it must be based at least on a 'reasonable suspicion' the driver has committed a traffic law violation or some other criminal activity is afoot. [¶] Reasonable suspicion a law has been violated can be based on less than probable cause to believe a violation has occurred but it cannot be based on mere speculation or hunch. Moreover, the reasonableness of an officer's stopping a vehicle is judged against an objective standard: would the facts available to the officer at the moment of the stop '"warrant a man of reasonable caution in the belief that the action taken was appropriate[?]"' Subjective good faith on the part of the officer is not enough. If the officer turns out to have been mistaken the mistake must be one which would have been made by a reasonable person acting on the facts known to the officer at the time of the stop. Under the foregoing test, a traffic stop will not violate the Fourth Amendment if the officer making the stop reasonably suspects the violation of a traffic law even if later investigation dispels that suspicion." (People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1148, fns. omitted.) In section 1983 cases, the question of probable cause is one for the jury. (McKenzie v. Lamb (9th Cir. 1984) 738 F.2d 1005, 1007-1008.)
As one court observed, albeit many years ago, "With the ever increasing number of section 1983 suits brought in federal court, it may well be time to reevaluate the absence of an exhaustion requirement and to explore application of the de minimis doctrine." (Richardson v. City of Newark (D.C.Del. 1978) 449 F.Supp. 20, 24.)
Plaintiff's factual submission on the traffic stop was thin. Even if believed, that evidence, that she did stop for the light, leaves room for a finding that the deputies at the worst made a reasonable mistake, so that there was no Fourth Amendment violation. However, the factual submission also leaves room for a finding that the deputies could not have seen her fail to stop, and had no reasonable suspicion. Thus, when the facts are viewed in the light most favorable to plaintiff, she was stopped without reasonable suspicion, violating her constitutional rights.
We next consider whether the right was clearly established in the specific context of the case, and again find that there are triable issues of fact. It is of course firmly established that a traffic stop made without sufficient cause violates the Fourth Amendment (Bingham v. City of Manhattan Beach, supra, 341 F.3d at pp. 947-948), but that is not the dispositive question. We must consider the question in light of the specific context of the case, and determine "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." (Saucier v. Katz, supra, 533 U.S. at p. 202.)
We find that a reasonable officer would know that a traffic stop without reasonable suspicion is a violation of the subject's Fourth Amendment rights. On the other hand, "[I]t is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and . . . in such cases those officials -- like other officials who act in ways they reasonably believe to be lawful -- should not be held personally liable." (Anderson v. Creighton (1987) 483 U.S. 635, 641; Saucier v. Katz, supra, 533 U.S. at p. 206.) Thus, the question is a factual one, perhaps redundant to the one posed above.
Given plaintiff's showing, and the factual disputes, defendants did not establish a right to summary judgment on qualified immunity as to the traffic stop. We turn to the arrest for Penal Code section 148, and find that defendants were entitled to a qualified immunity.
When the facts are viewed most favorably to plaintiff, there was probable cause for plaintiff's arrest, and no violation of her constitutional rights. Plaintiff did not stop when the deputies signaled her with the red light, or when they signaled her with their rotating lights and siren. Instead, she continued to drive for perhaps 200 yards. There are disputed facts about the next portion of the interaction, but the critical facts are the undisputed ones: plaintiff dropped to her knees, screamed, and "struggled in earnest." She took advantage of the developing and dangerous situation to escape from the officer's grasp and return to her car, so that the deputies had to remove her. That is resisting arrest.
Plaintiff seems to contend that if there was no reasonable suspicion for the traffic stop, the arrest was unlawful as a matter of law. Not so. "[A] person subjected to an unlawful detention does not have the right to use reasonable force to resist such detention," and the same is true for an arrest. (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 324.) "[E]xecution of an unlawful arrest or detention does not give license to an individual to strike or assault the officer unless excessive force is used or threatened; excessive force in that event triggers the individual's right of self-defense." (Id. at p. 331.)
That brings us to the question of excessive force. We find that defendants are entitled to qualified immunity on the claim.
Claims that law enforcement officers have used excessive force in the course of an arrest or stop are analyzed under the Fourth Amendment and its reasonableness standard. (Graham v. Connor (1989) 490 U.S. 386, 395 [109 S.Ct. 1865, 104 L.Ed.2d 443]; Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 164.) "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." (Graham, supra, at p. 396.) "Because '[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,' [citation] however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." (Ibid.) "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation." (Id. at pp. 396-397.) Our review is thus "highly deferential to the police officer's need to protect himself and others." (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 343.)
Viewed in the light most favorable to plaintiff, the facts here are a driver continued to drive after police officers signaled her to stop, and that when she did finally stop, she opened the car door and leaned out. She was wearing a bulky jacket which could conceal a weapon, and when she left the car, she was carrying a large wallet. Deputy Horning believed that a pat-down for weapons was necessary, a reasonable conclusion under the circumstances. He grasped plaintiff's wrist so that he could begin the pat-down. Plaintiff declared that his grasp was painful, but in no sense could the gesture be said to be excessive.
The evidence is that soon thereafter, Deputy Inez took plaintiff's other arm, and that both deputies used their body weight to hold her against her car. This restraint was a somewhat greater degree of force, but it was not excessive force. The deputies still had not conducted a pat down for weapons, and for the reasons cited above, legitimately wished to do so.
Thereafter, the deputies used greater force, but they did so in response to plaintiff's attempts to resist and evade. She dropped to her knees, and when she stood up again, she struggled to break free. The deputies sought to secure the situation by holding her against her car, and when she actually escaped into her car, they removed her and forced her to the ground, to handcuff her. Her testimony was they did so in a manner that was painful and violent, but given that she was resisting, we cannot see that they could have done so gently.
Under the facts and circumstances of this case, plaintiff has not shown that the deputies' conduct violated her Fourth Amendment rights. The defendants were entitled to summary judgment on their defense of qualified immunity on this claim.
Disposition
The judgment in favor of the County is affirmed. As to the individual defendants, the judgment is affirmed as to the causes of action for negligence, battery, intentional infliction of emotional distress, and false arrest and false imprisonment, and on the claim for punitive damages. It is reversed as to the cause of action under 42 United States Code section 1983, but only insofar as plaintiff contends that her constitutional rights were violated by the traffic stop.
Parties to bear their own costs on appeal.
We concur: TURNER, P. J., MOSK, J.