Opinion
Case No. CV 22-157-DMG (JPRx)
2022-12-05
Brandon PERNELL, et al., Plaintiffs, v. CITY OF LOS ANGELES, et al., Defendants.
Kevin Shawn Conlogue, Ashley M. Conlogue, Conlogue Law, LLP, Beverly Hills, CA, for Plaintiffs. Geoffrey R. Plowden, Manning and Kass, et al., Los Angeles, CA, Cory M. Brente, Rebecca Elizabeth Hunter, Rebekah Young, Los Angeles City Attorney's Office, Los Angeles, CA, for Defendants City of Los Angeles, Sgt. Lopez, OFFICER DIEGO BLANCO, Officer Brian Housos, Officer Kyle Lee, Officer Armando Hernandez, Officer Steven Manfro, Officer Mark Perkowski. Jennifer Ann Schwarz, Alison Kathleen Hurley, Bremer Whyte Brown and O'Meara LLP, Newport Beach, CA, for Defendant Defense International Corporation. Emily Berman, William R. Johnson, Tyson and Mendes LLP, La Jolla, CA, for Defendant Greystar California, Inc.
Kevin Shawn Conlogue, Ashley M. Conlogue, Conlogue Law, LLP, Beverly Hills, CA, for Plaintiffs. Geoffrey R. Plowden, Manning and Kass, et al., Los Angeles, CA, Cory M. Brente, Rebecca Elizabeth Hunter, Rebekah Young, Los Angeles City Attorney's Office, Los Angeles, CA, for Defendants City of Los Angeles, Sgt. Lopez, OFFICER DIEGO BLANCO, Officer Brian Housos, Officer Kyle Lee, Officer Armando Hernandez, Officer Steven Manfro, Officer Mark Perkowski. Jennifer Ann Schwarz, Alison Kathleen Hurley, Bremer Whyte Brown and O'Meara LLP, Newport Beach, CA, for Defendant Defense International Corporation. Emily Berman, William R. Johnson, Tyson and Mendes LLP, La Jolla, CA, for Defendant Greystar California, Inc. ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT [110, 113, 115, 116] DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
This action is before the Court on the parties' cross-motions for summary judgment ("MSJs"). [Doc. ## 110, 113, 115, 116.]
Late at night on April 25, 2022, seven armed, uniformed Los Angeles Police Department ("LAPD") officers (collectively, the "LAPD Defendants") investigating an armed robbery entered Plaintiffs Brandon Pernell and Karly Brown's downtown Los Angeles apartment complex. With drawn weapons, and without obtaining a warrant, the LAPD Defendants pounded on Plaintiffs' door, obtained Pernell's presence in the threshold, handcuffed and detained Pernell, and searched the unit. Only after detaining Pernell did police realize that they were at the wrong unit. They completed the search, released Pernell, and left.
This civil rights action ensued. Plaintiffs bring suit against the LAPD Defendants, the City of Los Angeles ("the City"), and their complex's property manager, Greystar California, Inc. ("Greystar") and security company, Defense International Corporation ("DIC"). Plaintiffs allege unlawful arrest, search, and detention and excessive force under the Fourth Amendment, conspiracy to violate their civil rights, and state law claims of negligence, assault and battery, trespass, invasion of privacy, and violations of the Bane Act (Cal. Civ. Code § 52.1) and Ralph Act (Cal. Civ. Code § 51.7).
The Court will collectively refer to the City and the LAPD Defendants as the "City Defendants" in this Order.
Defendants have filed three summary judgment motions seeking dismissal of all of the claims against them. See City Defendants' MSJ ("City MSJ") [Doc. # 110]; Greystar MSJ [Doc. # 115]; DIC MSJ [Doc. # 116]. Plaintiffs also bring a cross-MSJ seeking summary adjudication of their first cause of action. See Plaintiffs' MSJ [Doc. # 113].
The Court GRANTS IN PART the City MSJ as to the excessive force in violation of the Fourth Amendment, assault and battery, 42 U.S.C. § 1985, and Ralph Act claims against the City Defendants, and as to all Monell claims against the City. The City MSJ is DENIED IN PART as to the claims relating to unlawful entry and detention. The Court GRANTS Plaintiffs' MSJ inasmuch as Plaintiffs argue that there can be no genuine dispute of material fact that an LAPD Defendant, Brian Housos, unlawfully entered their apartment by breaching the threshold without their consent. And the Court GRANTS Greystar's and DIC's MSJs on all remaining claims against them.
I.
BACKGROUND
Facts in this section are taken from the parties' summary judgment evidence, viewed in the light most favorable to Plaintiffs. Citations to the record are to the CM/ECF pagination.
A. The April 25, 2021 Incident
Plaintiff Pernell is African American, and Plaintiff Brown is Asian American. [Doc. # 115-2 at 2.] Both resided in unit 2324 and were present at the time of the incident. See id. The apartment building owner contracted with Greystar to provide property management services and with DIC to provide concierge and security services. [Id. at 2-3.]
On April 25, 2021, at approximately 11:00 p.m., Defendant Officers Brian Housos and Diego Blanco responded to a report of an armed robbery investigation in downtown Los Angeles. [Doc. # 110-2 at 6]. Housos' report describes a violent attack and robbery that occurred around 9:50 p.m. that same day, committed by the victim's partner, "Quinton," and another person, who was armed. Id. The victim identified a photograph of Quinton. Id. at 7. She stated that she and Quinton lived together in two units in an apartment building downtown, and she warned police that Quinton "constantly" carried a firearm. Id. at 6-7. She provided the unit numbers where she and Quinton lived as units 1512 and 2324, although, as officers would later learn, she mistakenly told them unit "2324" (Plaintiffs' unit) when the correct number was "2423." See id. at 8. Police proceeded to Plaintiffs' apartment building, without obtaining a warrant. [See Doc. # 113-5 at 9.]
Body camera footage from the seven LAPD officers who responded to the building—Housos, Blanco, Kyle Lee, Armando Hernandez, Steven Manfro, Mark Perkowski, and Sergeant Hector Lopez—shows the following events. Armed and in uniform, the LAPD Defendants entered the lobby and spoke with three people at the reception area. See Defendant Blanco's Bodyworn Camera Recording ("Rec.") I at 2:09. A male receptionist named "Michael" (later identified as Michael Hinojosa) stated that he had seen Quinton "a couple hours ago" with "a few of his buddies" when Defendant Blanco showed the receptionist Quinton's photograph. Id. at 2:10-17, 3:07. Hinojosa then allowed the LAPD Defendants access to the 15th floor, where no one answered the door at unit 1512. Id. at 3:00, 5:39. A DIC employee later testified that to access a residential floor, either scanning an electronic key in the elevator or pushing a button at the front desk was necessary. [Doc. # 123-11 at 22-24.]
Fourteen body camera recordings (representing separate recordings of the attempts to access each unit, from each LAPD Defendant's perspective) have been lodged with the Court in connection with the pending MSJs.
The LAPD Defendants returned to the lobby and asked Hinojosa to scan his identification so that they could access the 23rd floor. Blanco Rec. II at 0:20. Defendant Blanco asked Hinojosa where Quinton usually stayed, and Hinojosa replied that Quinton stayed in "multiple units" throughout the building, without specifying a unit number. Id. at 0:20-27. Hinojosa allowed the officers access to the 23rd floor. See id. at 0:39.
Body camera footage depicts the LAPD Defendants taking position outside Plaintiffs' door at approximately 11:54 p.m., with Defendants Housos, Lee, and Blanco directly in front of the unit door. See Blanco Rec. II at 1:59. Defendant Lee had a drawn firearm—a shotgun, which he angled toward the floor in front of the door. Id. The other four LAPD Defendants took up positions around the corner, in the hallway. One of these other four officers, Defendant Hernandez, also held a "less-then-lethal weapon" that launched projectiles. [Doc. # 121-6 at 11-12.]
Defendant Housos then knocked repeatedly on the unit door, loudly announcing "LAPD" and that he "just wanted to talk" to "Quinton." Blanco Rec. II at 2:00-47. Pernell (who would later explain that he was in bed at the time) called out from inside the unit, asking who was at the door, and Housos repeated that it was "LAPD" and that the occupant was "not in any trouble" and police "just want[ed] to talk." Id. at 2:31-46; see also Defs.' Response to Plaintiffs' Statement of Add. Material Facts at 3 [Doc. # 131]. Defendant Housos also tried the door handle, without being able to open the door. Blanco Rec. II at 2:38. During this time, Defendant Lee continued to stand in front of the unit door, with his shotgun drawn and angled toward the floor in front of the door. Lee Rec. II at 0:50-1:28.
Pernell, wearing boxer shorts and an undershirt, opened the door, raising his left hand. Defendant Housos stated "let me just see your hands, bro" and directed Pernell to "come out here," gesturing toward the hallway to Housos' right. Housos Rec. II at 2:49; Blanco Rec. II at 2:54. At the moment that Pernell opened the door, Defendant Lee raised his shotgun slightly, although it continued to be aimed at a downward angle. Blanco Rec. II at 2:47. Defendant Housos had his hand on his holstered weapon as Pernell opened the door but did not draw the weapon. Id. at 2:49. Pernell complied with Housos' directions, with his arms at waist level or raised, and replied negatively when Blanco asked if he had weapons. Id. at 3:01. Blanco patted Pernell down and handcuffed him, while Pernell identified himself and stated that there was "nobody named Quinton" present but that Pernell's girlfriend was in the unit. Id. at 3:01-16.
While Pernell remained in the hallway, officers called out to Brown, directing her to leave the apartment. Blanco Rec. II at 3:27-33. Pernell spoke with the LAPD Defendants, who stated that "we're not just here just to be here." Id. at 3:59. During this time, and before Pernell directed Brown to comply with the LAPD Defendants, Defendant Lee's recording clearly depicts Housos leaning into the unit, with his head, upper torso, left hand, and left foot in the unit as he holds the door open to speak with Brown. Lee Rec. II at 1:28-2:22.
Pernell called out to Brown to "comply with" the officers because they had the "wrong" place and to "let them check." Blanco Rec. II at 4:20-:25, 5:04. Defendant Housos continued to direct Brown to exit so that officers could check the unit for Quinton. Id. at 4:46. Six of the LAPD Defendants searched the apartment, while Lopez remained in the hallway. See id. at 6:20; see also Defs.' Response to Plaintiffs' Statement of Add. Material Facts at 6. Lopez later testified in his deposition that he believed that officers had valid consent to enter the home, so that a warrant was unnecessary. [See Doc. # 113-5 at 3.]
After officers finished searching the apartment, Blanco released Pernell from the handcuffs. Blanco Rec. II at 7:48. Defendant Lopez provided his card, and the LAPD Defendants apologized and left, after a short discussion with Pernell and Brown. Lopez Rec. II at 7:50-11:30. It is undisputed that during this encounter, the LAPD Defendants did not read Pernell his Miranda rights, advise him he could refuse consent, or tell him they lacked a warrant. Defs.' Response to Plaintiffs' Statement of Add. Material Facts at 8-9.
In his deposition, Pernell testified that although the handcuffs were uncomfortable, he did not suffer any physical injuries and that he did not recall any LAPD Defendant threatening him or expressing racial animus toward him that evening. [Doc. # 110-3 at 9-10.] He stated that he saw Defendant Lee through the peephole with a shotgun "right in front of me," two other officers, and shadows of multiple officers down the hall to the right. [Doc. # 113-4 at 4.] Pernell testified that seeing Defendant Lee with a shotgun frightened him, although he would not characterize the incident as being held "at gunpoint." [Doc. # 110-3 at 12.] From what he recalled, Defendant Lee kept the shotgun pointed toward the ground. Id. at 14.
After the incident, the victim informed the LAPD Defendants that she had provided an incorrect unit number. [Doc. # 113-6 at 7.]
B. Greystar and DIC's Evidence
In support of their summary judgment motions, Greystar and DIC provide depositions of various employees. Greystar employee Luke Banham, the general manager at the building, explained that if police arrived at the building without a warrant, but with "reasonable cause to check a floor," Banham would not be contacted. [Doc. # 115-2, at 60, 63.] If police were "called in for . . . an activity, or they've come to say that there's something happening there, then, of course, we'll let them up and comply, but not into the unit." Id. at 63. Banham stated, however, that there was no policy from Greystar regarding access to residential floors for non-tenants. Id. at 64. Similarly, Greystar's community manager, Kevin Garner, testified that access to residential floors would be granted in an emergency or when "cooperating with law enforcement." Id. at 80-81.
DIC's employee Sandra Retana, who worked at the front desk of the building, was also deposed. She explained that at the front desk, she had access to a computer that allowed her to look up tenants and their associated unit numbers. [Doc. # 123-10 at 4-5.] Retana also testified about her training when police sought to access a residential floor in the building: if she had a warrant, she had to contact her supervisor, manager, and "leasing" and would tell the officers to wait for the supervisor, manager, or leasing agent. One of these people would then "come downstairs" to accompany the police. But if they needed access to a floor, police would leave a card and she would make a record of the encounter. Id. at 8-10. If police did not have a warrant and sought access, "we were to allow them to go up." Id. at 11. According to Retana, if police sought access to a particular person, not a unit, she was trained to search her system for that person's unit number and "get the unit number if they have a warrant." Id. at 13-14. She would then call her manager and supervisor and make a record of the encounter if anything happened. Id. at 14.
Similarly, Don Cunningham testified for DIC that law enforcement would be granted access to residential floors, based on "building" policy. [Doc. # 123-11 at 11, 13.] Greystar's policy was for DIC to alert Greystar management if police wanted to execute a warrant. Id. at 19. Unlike Retana, Cunningham testified that "any time" LAPD arrived at the building, management would be notified. Id. at 20.
C. Procedural History
Plaintiffs brought suit under 42 U.S.C. § 1983 in this Court on January 7, 2022. [Doc. # 1.] In the operative complaint, Plaintiffs bring claims against all defendants for negligence, assault and battery, trespass, invasion of privacy, and violations of the Bane and Ralph Acts; against all Defendants except the City for unlawful entry, detention, and arrest in violation of the Fourth Amendment, excessive force, and conspiracy to violate civil rights under 42 U.S.C. § 1985; against the City for municipal liability under § 1983; and against Defendant Lopez for supervisory liability under § 1983. See generally First Amended Complaint ("FAC") [Doc. # 51].
On July 28, 2022, the Court granted in part and denied in part motions to dismiss filed by Greystar and DIC. [Doc. # 97.] The Court dismissed the Section 1983, assault and battery, and Bane and Ralph Act claims against Greystar and DIC with leave to amend. Id. at 6-7. Plaintiffs chose not to amend the FAC.
The pending MSJs are fully briefed. The Court heard argument on the MSJs on December 2, 2022.
II.
LEGAL STANDARD
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(c), (e)); see also Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (en banc) ("Rule 56 requires the parties to set out facts they will be able to prove at trial."). "In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). "Rather, it draws all inferences in the light most favorable to the nonmoving party." Id.
Nevertheless, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The Court therefore takes as true facts that are clearly depicted in the recordings (see id. at 380-81, 127 S.Ct. 1769), although the Court relies on the evidence in the light most favorable to Plaintiffs where there is ambiguity or a lack of clarity in the recordings.
III.
DISCUSSION
A. City Defendants' MSJ and Plaintiffs' MSJ
Plaintiffs' cross-MSJ purports to seek summary adjudication of their entire first cause of action, for unlawful entry into their apartment and detention/arrest of Pernell. See Plaintiffs' MSJ at 5 [Doc. # 113]. Their arguments solely address, however, the lawfulness of Officer Housos' initial entry into the unit when parts of his person crossed the threshold.
The City Defendants seek dismissal of all claims against them—violation of the Fourth Amendment for unlawful detention, entry, and arrest and the use of excessive force; conspiracy; municipal liability; supervisory liability; and the state law claims. The Court begins by addressing the lawfulness of Pernell's detention under the Fourth Amendment.
1. Seizure of Pernell
a. Constitutional Violation
The City Defendants assert that there is no evidence from which a trier of fact could conclude that Pernell was arrested (see City MSJ at 14 n.2) and that Pernell voluntarily came to a public place (the threshold of his unit), so that his warrantless seizure does not offend the Fourth Amendment. City MSJ at 23. The Court finds triable issues of fact as to whether the LAPD Defendants' warrantless seizure of Pernell violated the Fourth Amendment and whether Pernell was arrested or merely subjected to a Terry stop. Specifically, although the LAPD Defendants may not have placed handcuffs on Pernell until he exited his unit, a finder of fact could find that the LAPD Defendants constructively entered the unit, in violation of the Fourth Amendment, to effect the detention.
"It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (citation omitted). In the Ninth Circuit, it has long been the rule that police may no more effect a warrantless arrest by coercing a suspect to exit his home through a show of force than they may physically enter the home to do the same. See, e.g., United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir. 1985); United States v. Morgan, 743 F.2d 1158, 1166 (6th Cir. 1984) (similar). A constructive entry of this type must be considered an arrest within the meaning of the Fourth Amendment otherwise "officers could avoid illegal 'entry' into a home simply by remaining outside the doorway and controlling the movements of suspects within through the use of weapons that greatly extend the 'reach' of the [ ] officers." United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980).
In Al-Azzawy, the Ninth Circuit held that an arrest was accomplished within the home where "[a]ny reasonable person would have believed he was under arrest" while inside his home and the defendant emerged from the home only under circumstances of extreme coercion. 784 F.2d at 893. In Johnson, the Ninth Circuit held that the use of drawn weapons and subterfuge (agents misrepresenting their identities) to convince a suspect to open a door similarly effected the arrest inside the home—the suspect's "initial exposure to the view and the physical control of the agents was not consensual on his part." 626 F.2d at 757.
Applying these holdings, there is evidence to support Plaintiffs' Fourth Amendment claim for unlawful arrest on the basis that the LAPD Defendants constructively entered Plaintiffs' unit to obtain Pernell's presence at the threshold. Seven armed, uniformed LAPD officers went to Plaintiff's door, in his private apartment complex, at a late hour. See Blanco Rec. II at 1:59. Police repeatedly knocked on the door and, at one point, after knocking, Defendant Housos tried the door handle to see if it was unlocked. Blanco Rec. II at 2:00-47. When Pernell opened the door, before he stepped into the threshold of his unit, Defendant Housos directed him to come out and let officers see his hands. Housos Rec. II at 2:49; Blanco Rec. II at 2:54. Defendant Lee stood directly in front of the door, with his shotgun drawn and angled toward the floor by the entrance; Defendant Housos had his hand on his weapon. Blanco Rec. II at 2:00-49. Pernell could see Defendant Lee standing in front of the door—which had a peephole—holding the gun and could also see the shadows of the other four officers in the hallway, around the corner. [Doc. # 113-4 at 4.] Although Housos said that they "just wanted to talk" to "Quinton," there is certainly evidence from which a factfinder could find that Pernell's exit of his apartment was coerced and that a reasonable person in this situation would have felt that he was under arrest. There is no argument or evidence here of exigent circumstances excusing police from obtaining a warrant.
Cases where an arrest was not constructively accomplished in the home are distinguishable. In United States v. Vaneaton, the Ninth Circuit held that a silent knock on a door by uniformed officers with holstered guns did not coerce an arrestee's presence in the doorway. See 49 F.3d 1423, 1425 (9th Cir. 1995); see also United States v. Garcia, 997 F.2d 1273, 1281 (9th Cir. 1993) (flashing a badge and saying "we'd like to talk to you" resulted in voluntary consent to enter). Similarly, in United States v. Crapser, there was a "single, polite knock" on the door, police asked—not demanded—the door be opened, they did not draw attention to their weapons, the encounter was in the middle of the day and in public view, there was no effort to enter the motel room, and police did not otherwise block the inhabitants, suggest they could not leave, give them orders, or affirmatively assert authority over their movements. 472 F.3d 1141, 1146 (9th Cir. 2007).
There is evidence in this case, however, of more coercive behavior and a greater show of force than in Vaneaton, Garcia, and Crapser. Forcing a suspect to exit his home by surrounding the house and ordering the suspect to come out at gunpoint is an unlawful entry under Payton. United States v. Nora, 765 F.3d 1049, 1054 (9th Cir. 2014). Another judge in this District has concluded that where armed officers order an inhabitant to "come out" in a commanding voice, an unlawful entry under Payton occurs. United States v. Aguilar, No. SA CR 18-00062-DOC, 2018 WL 9868223, at *4 (C.D. Cal. Sept. 10, 2018); see also Morgan, 743 F.2d at 1161 (using spotlights and a bullhorn to summon a defendant from his home was coercive).
The City Defendants cite cases holding that the open doorway of a private residence is not a private place but a public one, so that an arrest in the doorway is effectively a public arrest, and the protections against home arrests do not apply. See City MSJ at 22-23; see also United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (defendant's doorway was public area, allowing warrantless arrest of defendant standing there). As noted above, however, police violate the Fourth Amendment if they obtain the person's presence in a public place—such as a doorway or hallway—by coercion.
LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2000), does not support the LAPD Defendants' arguments as the police in that case violated the Fourth Amendment by entering the apartment to effect the arrest.
The Court also has little difficulty finding that a trier of fact could conclude that Pernell was "arrested" on the night in question. See United States v. Patterson, 648 F.2d 625, 632 (9th Cir. 1981) ("Whether an arrest has occurred 'depends on all of the surrounding circumstances, including the extent that freedom of movement is curtailed and the degree and type of force or authority used to effectuate the stop.' . . . The question is whether, under all of the circumstances, 'a reasonable person would conclude he was under arrest.' "). Here, a jury could reasonably find that an arrest took place where Pernell was handcuffed and directed to wait in the hallway and where Defendant Lee had a drawn firearm. Pernell could well have reasonably believed that he was not free to go. See, e.g., Washington v. Lambert, 98 F.3d 1181, 1188 (9th Cir. 1996) ("[I]f the police draw their guns it greatly increases the seriousness of the stop."); United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982) ("[H]andcuffing substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry stop.").
Even if Pernell were merely detained, however, and not arrested, the use of coercion to obtain his presence in the hallway in order to detain him violates the Fourth Amendment. "Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] does not apply inside a home." Crapser, 472 F.3d at 1149. Neither an arrest nor a Terry stop may be accomplished inside the home absent a warrant or another exception, such as consent or emergency. See United States v. Martinez, 406 F.3d 1160, 1165 (9th Cir. 2005); United States v. Washington, 387 F.3d 1060, 1067 (9th Cir. 2004) (noting that the Supreme Court "has never expanded Terry to allow a Terry-stop at an individual's home"); United States v. Winsor, 846 F.2d 1569, 1574 (9th Cir. 1988) (en banc) (refusing to extend the principle of Terry stops to the home).
b. Qualified Immunity
Having determined that a constitutional violation could be found when viewing Plaintiffs' evidence in the light most favorable to them, the Court turns to whether the LAPD Defendants are entitled to qualified immunity.
Qualified immunity shields a defendant officer from liability if it was not clearly established at the time that the officer's actions were unconstitutional. See Pearson v. Callahan, 555 U.S. 223, 243-44, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Demonstrating that the unlawfulness of an officer's actions was "clearly established" requires a showing that "at the time of the officer's conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful." Dist. of Columbia v. Wesby, 583 U.S. 48, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018). A clearly established right cannot merely be implied by precedent, and plaintiffs may not defeat qualified immunity by describing violations of clearly established general or abstract rights outside "an obvious case." White v. Pauly, 580 U.S. 73, 137 S. Ct. 548, 551-52, 196 L.Ed.2d 463 (2017). The Ninth Circuit has emphasized that "it is the facts of particular cases that clearly establish what the law is." Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938, 951 (9th Cir. 2017).
As discussed above, it is well-established that police may not constructively enter a home to effect a warrantless arrest. See, e.g., Al-Azzawy, 784 F.2d at 893; Johnson, 626 F.2d at 757. Johnson, cited above, is a 1980 case that involves even less coercive circumstances than those present here: the suspect encountered agents at the entrance of his home who had guns drawn and the agents obtained the suspect's presence at the threshold through misrepresenting their identities, not by giving orders or commands. 626 F.2d at 757. A case directly on point is not required for a right to be clearly established: it is enough that existing precedent places the constitutional question beyond debate. Kisela v. Hughes, — U.S. —, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018).
Although this case involves officer safety concerns that were not present in Johnson, case law also clearly establishes that even when faced with a suspect who is known to be armed and dangerous, police cannot effect a warrantless arrest inside the home. See Al-Azzawy, 784 F.2d at 891 (suspect had threatened to shoot a neighbor, burn his trailer, and blow up the trailer park and was suspected to have a pistol, hand grenades, and automatic weapons); Morgan, 743 F.2d at 1160 (suspect was known to have firearms and to have made a comment that he would kill law enforcement who tried to arrest him); see also United States v. Saari, 272 F.3d 804, 812 (6th Cir. 2001) ("[T]he Government argues, the officers only wanted to interview Defendant as part of their ongoing investigation. If the officers only wanted to talk to [Defendant], but were concerned about their safety in so doing, then they were required simply to summon him in a non-coercive fashion, using their own judgment as to how or if to warn him about any impending display of force. But their desire to interview Defendant did not justify ordering him out of his home at gunpoint or constitute an exigent circumstance that excused their warrantless entry into Defendant's apartment.").
As noted above, there are triable issues of fact regarding whether Plaintiff's egress from his unit was coerced, and these issues are relevant to whether officers reasonably, but mistakenly, believed Plaintiff voluntarily left his unit. See, e.g., Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (noting that qualified immunity applies to reasonable mistakes of fact and law). But the Court takes the facts in the light most favorable to Plaintiff when determining whether qualified immunity applies. The Court accordingly finds that triable issues of fact exist that impact whether the LAPD Defendants are entitled to qualified immunity.
2. Search and Entry of the Unit
a. Constitutional Violation
Turning to claims regarding the LAPD Defendants' physical entry into Plaintiffs' unit, "[a]n entry into a residence that is not under a warrant, that lacks consent, and that is not justified by exigent circumstances or an emergency is unreasonable." Mendez v. Cnty. of L.A., 897 F.3d 1067, 1075 (9th Cir. 2018); see also Bonivert v. City of Clarkston, 883 F.3d 865, 874 (9th Cir. 2018) ("[T]here is no talismanic distinction, for Fourth Amendment purposes, between a warrantless 'entry' and a warrantless 'search.' "). "As a matter of clearly established law, 'the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.' " Bonivert, 883 F.3d at 874 (quoting Payton, 445 U.S. at 590, 100 S.Ct. 1371).
Although Defendant Lee's drawn weapon obscures some portions of his body camera footage, nevertheless, Defendant Housos can clearly be seen leaning through the threshold of Plaintiffs' unit's doorway, with his head, left arm, upper body, and/or left foot inside the unit, bracing the door open. See Lee Rec. II at 1:28, 1:40. Contrary to the City Defendants' argument that Housos only "placed his foot in the door . . . to allow Pernell to exit" (LAPD MSJ at 23 n.12), the footage plainly depicts parts of Housos' body across the threshold after Pernell exited the unit. During this time, Housos is communicating with Plaintiff Brown, asking her to exit the apartment and stating that officers need to make sure that no one else is in the apartment.
Housos' entire body does not appear to cross the threshold during this time. But the footage clearly controverts the City Defendants' argument that no part of Housos' body passed the threshold of the door.
It is well established that no matter how minimal, physical invasion of the home violates the Fourth Amendment. See Kyllo v. United States, 533 U.S. 27, 37, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ("[A]ny physical invasion of the structure of the home, 'by even a fraction of an inch,' was too much." (quoting Silverman v. United States, 365 U.S. 505, 512, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961))). Citing this authority, courts have found that the Fourth Amendment is implicated whether the threshold of the home is crossed by a foot (Abrami v. Town of Amherst, No. CIV.A. 09-30176-DPW, 2013 WL 3777070, at *4 (D. Mass. July 16, 2013) (genuine dispute regarding whether an officer's foot crossed into the apartment); see also Parish v. Lansdale, No. CV-17-00186-TUC-JGZ, 2019 WL 4849612, at *7 (D. Ariz. Sept. 30, 2019) (cataloging cases)), or an arm (McClish v. Nugent, 483 F.3d 1231, 1235, 1248 (11th Cir. 2007) (evidence that an officer reached into the house and grabbed the occupant, pulling him onto the porch); see also Flores v. Lackage, 938 F. Supp. 2d 759, 770 (N.D. Ill. 2013) (similar)). The City Defendants' argument that the intrusion was constitutional because it was de minimis is not well-taken. See, e.g., Loria v. Gorman, 306 F.3d 1271, 1284 (2d Cir. 2002) ("No invasion of the sanctity of the home can be dismissed as de minimis.").
Plaintiffs' cross-MSJ seeks adjudication of their claim that Defendant Housos' person entered their unit before any alleged consent by Pernell to search. Plaintiffs' MSJ at 5. Based on the law cited above and the body camera footage of events, there can be no genuine dispute that Housos entered the unit, to some extent, before obtaining consent. See Scott, 550 U.S. at 381, 127 S.Ct. 1769; Fisher v. City of San Jose, 558 F.3d 1069, 1091 (9th Cir. 2009) (quoting Payton, 445 U.S. at 590, 100 S.Ct. 1371) ("Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant). Accordingly, the Court grants Plaintiffs' cross-MSJ in this regard.
The City Defendants alternatively argue that Pernell consented to the search. As noted, Defendant Housos' initial entry into the unit occurred before the alleged consent to search. Any alleged consent by Pernell does not affect the analysis regarding the initial entry's unlawfulness. As for whether consent could justify the later intrusion, which occurred after Pernell told Brown to "comply with" the LAPD Defendants, the Court considers the following factors:
(1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that [ ]he had a right not to consent; and (5) whether the defendant had been told a search warrant could be obtained.Liberal v. Estrada, 632 F.3d 1064, 1082 (9th Cir. 2011). The Court may also consider other factors that are relevant, such as the search occurring in the middle of the night, the number of officers, and whether the search occurred in an area hidden from public view. Id.; see also United States v. Chan-Jimenez, 125 F.3d 1324, 1327 n.3 (9th Cir. 1997). Whether there was valid consent to conduct a search is generally a question of fact. Al-Azzawy, 784 F.2d at 895.
Viewed in the light most favorable to Plaintiffs, again, there is evidence to meet each of these factors. At the time he "consented" to the search of his unit, Pernell was handcuffed in the hallway of his apartment building, had not been given Miranda warnings, and was not notified of a right to refuse consent or that a search warrant could be obtained. He was not held at gunpoint, but officers were armed and as noted, there is evidence from which a finder of fact could conclude his detention had been accomplished through a show of force. Seven officers were present, and the interaction occurred late at night in an area hidden from the general public. Thus, the Court rejects the City Defendants' alternative argument that Pernell's consent rendered the entry and search of his unit lawful.
Finally, the City Defendants cite Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), in support of their argument that a search of the wrong apartment does not violate the Fourth Amendment where officers stop searching when they realize the mistake. City MSJ at 26-27. That authority is inapplicable here—in Garrison, the police had a valid warrant with which they reasonably believed they were complying. Here, a reasonable jury could find that the LAPD Defendants had neither a warrant, exigent circumstances, nor voluntary consent to search the apartment.
b. Qualified Immunity
That even a de minimus entry of a home by an officer without consent, exigent circumstances, or a warrant violates the Fourth Amendment has long been clearly established. See, e.g., Kyllo, 533 U.S. at 37, 121 S.Ct. 2038; Bonivert, 883 F.3d at 874. Courts have consistently relied on this case law to deny qualified immunity. See, e.g., Mitchell v. Shearrer, 729 F.3d 1070 (8th Cir. 2013) (denying qualified immunity where officer investigating violation of ordinance regarding leaf debris put her foot in the doorway to prevent resident from shutting it); Dalcour v. City of Lakewood, 492 Fed. App'x 924, 934 (10th Cir. 2012) (qualified immunity did not apply because "a reasonable officer should have known that placing a foot into the doorway amounted to an entry of the home for Fourth Amendment purposes"); Parish, 2019 WL 4849612, at *2 (discussing authority and denying qualified immunity where an officer put his foot into the threshold of the doorway). This is the case even if the incident involves a potentially violent suspect, in the absence of exigent circumstances. See, e.g., Estate of Crawley v. McRae, No. 1:13-CV-02042-LJO, 2015 WL 5432787, at *22, *39 (E.D. Cal. Sept. 15, 2015).
As with the unlawful detention analysis above, although there are questions of fact regarding whether Pernell's consent to the search was voluntary—or reasonably could be perceived as voluntary—Plaintiffs have put forth evidence that Pernell did not voluntarily consent. It is clearly established that police violate the Fourth Amendment when they conduct a search on the basis of consent that was not voluntarily given. See, e.g., Liberal, 632 F.3d at 1084 ("[W]e hold that Plaintiff's consent to the search of his car was not voluntary. Accordingly, the search was unconstitutional under law that was clearly established at the time.").
As noted above, Officer Housos indisputably breached the threshold of Plaintiffs' doorway before any arguable consent by Plaintiff Pernell. Qualified immunity therefore does not shield Officer Housos from liability for the unlawful entry claim. And viewed in the light most favorable to Plaintiffs, a reasonable jury could find that the other LAPD Defendants did not have Pernell's voluntary consent to search his unit. The City Defendants argue that there is inadequate evidence that every officer would have known that Pernell's consent was coerced, where some officers were around the corner, in the hallway. But the evidence is sufficient that a jury could find that all officers knew of the coercive circumstances because they heard Housos pounding on the door and giving orders, they saw Lee with a drawn firearm, they saw Pernell when he was handcuffed, and they were aware he had not been given Miranda warnings or otherwise informed he could consent or that a search warrant could be obtained. As such, a triable issue of fact exists as to whether the LAPD Defendants, other than Officer Housos, are entitled to qualified immunity.
The City Defendants further argue that Defendant Lopez, who remained in the hallway while the other six LAPD defendants searched the unit, cannot be liable for that search. But Lopez was far from a "mere bystander"—there is evidence that he provided armed backup and secured Pernell in the hallway and he was a sergeant supervising the others (see Doc. # 121-6 at 10) from which a jury could reasonably conclude that he was an integral participant in the search of the unit. See Hopkins v. Bonvicino, 573 F.3d 752, 769-70 (9th Cir. 2009).
3. Excessive Force Claim
The FAC asserts a claim of excessive force on the basis of the use of drawn guns and handcuffs to effect the arrest. FAC ¶¶ 44-45. The Court agrees with the City Defendants that summary judgment should be granted as to this claim.
As a preliminary matter, the Court finds no facts from which a jury would conclude that Lee pointed his firearm directly at Pernell or that Pernell was held at gunpoint. When Pernell answered the door and during his egress from his apartment, Lee held the shotgun, primarily angling it toward the floor in front of the unit, although Lee raised the shotgun slightly when Pernell exited. Blanco Rec. II at 2:47. [See also Doc. # 113-4 at 4 (Pernell's deposition testimony that he saw Lee with a shotgun right in front of Pernell when Pernell looked through the peephole).] It is not clear from the footage whether the shotgun pointed at any part of Pernell's body at this time. See Lee Rec. II at 00:53-1:00; Blanco Rec. II at 2:49-2:58; Housos Rec. II at 2:51-56. But in his deposition, Pernell specifically testified that he would not characterize Lee's actions as holding him at "gunpoint." [Doc. # 110-3 at 12 ("I wouldn't say it was at gunpoint . . . .").]
The use of a drawn firearm while detaining a person under these circumstances does not violate the Fourth Amendment. See, e.g., Sen v. City of Los Angeles, No. 2:21-CV-02326-SB-KES, 2022 WL 2236085, at *10 (C.D. Cal. Apr. 20, 2022) (citing cases and concluding that the use of a gun constitutes excessive force in the Ninth Circuit if that weapon is aimed or pointed at a suspect but not if the firearms are held in the "low ready" position). Ninth Circuit cases finding excessive force based on the use of drawn weapons involve a level of force that is not present here. See, e.g., Thompson v. Rahr, 885 F.3d 582, 585-86 (9th Cir. 2018) (plaintiff claimed that the officer "pointed his gun at Thompson's head, demanded Thompson surrender, and threatened to kill him if he did not"); Tekle v. United States, 511 F.3d 839, 846 (9th Cir. 2007) (23 officers held their guns to the head of an 11-year-old boy, "searched him, handcuffed him, pulled him up from behind by the chain of the handcuffs, and sat him on the sidewalk, still handcuffed, with their guns pointed at him, for ten to fifteen minutes"); Robinson v. Solano Cnty., 278 F.3d 1007, 1013 (9th Cir. 2002) (holding an unarmed, peaceful misdemeanor suspect at gunpoint constituted excessive force); see also Green v. City & Cnty. of San Francisco, 751 F.3d 1039, 1050 (9th Cir. 2014) (suggesting the low-ready position as a less intrusive alternative to pointing a gun at suspect's head).
There is also no evidence that the handcuffs on Pernell were overly tight or that the handcuffing was anything more than uncomfortable. [See Doc. # 110-3 at 9-10.] There is no evidence that Plaintiff Brown was handcuffed or detained at all. And the mere use of handcuffs, without more, does not violate the Fourth Amendment. See, e.g., Sen v. City of L.A., No. 2:21-CV-02326-SB-KES, 2022 WL 2236085, at *9 (C.D. Cal. Apr. 20, 2022) (finding qualified immunity applied to a claim that handcuffs were too tight and summarizing cases).
The Court notes, moreover, that it is undisputed that the LAPD Defendants were investigating a violent, armed robbery and that they had information that "Quinton" would be armed and would be in the company of other people. Thus, even if they instantly recognized that Pernell was cooperative and was not the suspect, it was reasonable for them to continue to use drawn weapons to ensure officer safety until they could be certain that it was only Brown and Pernell in the unit. See Washington v. Lambert, 98 F.3d 1181, 1187 (9th Cir. 1996) (explaining that although handcuffs and drawn weapons are not part of a typical Terry stop, more intrusive and aggressive police conduct is allowed if it is "a reasonable response to legitimate safety concern on the part of the investigating officers"); accord Alexander v. Cnty. of L.A., 64 F.3d 1315, 1320 (9th Cir. 1995) ("[I]t is well settled that when an officer reasonable believes force is necessary to protect his own safety or the safety of the public, measures used to restrain individuals, such as stopping them at gunpoint and handcuffing them, are reasonable.").
Because no reasonable jury could find in Plaintiffs' favor on the excessive force claim, the Court grants the City Defendants' MSJ as to the excessive force claim.
4. Section 1985 , Monell , and State Law Claims
The City Defendants seek summary judgment as to the trespass, invasion of privacy, negligence, and Bane Act claims on the basis of the same arguments they make regarding the Fourth Amendment claims. See City MSJ at 27. The Bane Act claim is premised solely on the unlawful entry of Plaintiffs' residence. See FAC ¶ 107.
As noted above, the Court finds triable issues of fact regarding the unlawful entry and arrest claims. A Bane Act claim requires not only an unlawful arrest and search but a "specific intent to violate the arrestee's right to freedom from unreasonable seizure." Cornell v. City & Cnty. of S.F., 17 Cal. App. 5th 766, 801, 225 Cal.Rptr.3d 356 (2017). "Put another way, that plaintiff must establish that the arresting officer searched and arrested the plaintiff with the particular purpose of depriving [the plaintiff] of his enjoyment of the interests protected by the Fourth Amendment right to be free of unreasonable seizure." Id. at 803, 225 Cal. Rptr.3d 356 (internal quotation marks and citation omitted). Viewing the evidence in the light most favorable to Plaintiffs, a reasonable trier of fact could conclude that the LAPD Defendants had a specific intent to unlawfully coerce the unit's resident from the unit in violation of the Fourth Amendment and to coerce that person to consent through a show of force, particularly where they continued in their course of conduct even though Pernell was not the person they sought and did not appear to pose a danger to them. Therefore, the Court denies the City MSJ inasmuch as it seeks dismissal of the trespass, invasion of privacy, negligence, and Bane Act claims against the City Defendants.
The County Defendants also argue that under California Penal Code § 847(b), they cannot be held liable for a false detention. See County MSJ at 27 n.15. Section 847(b) applies to actions for false arrest/false imprisonment and corresponding Bane Act claims. See, e.g., Fowler v. Cal. Highway Patrol, No. 13-CV-01026-TEH, 2014 WL 1665046, at *12 (N.D. Cal. Apr. 25, 2014). The Bane Act claim here is not premised on an unlawful arrest, but on an unlawful entry, so that the County Defendants' Section 847(b) argument is unpersuasive.
The City Defendants argue that they are entitled to judgment on the assault and battery claim because "no force, let alone excessive force, was used here." City MSJ at 22 n.9. As alleged in the FAC, the assault and battery claim is based on the use of "physical force" against Pernell. FAC ¶¶ 90-94. Because the Court finds no genuine dispute of material fact that the amount of force used was reasonable, the Court also grants summary judgment as to the assault and battery claim. See, e.g., Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1273, 74 Cal.Rptr.2d 614 (1998) ("By definition then, a prima facie battery is not established unless and until plaintiff proves unreasonable force was used.").
Plaintiffs also bring a § 1985 conspiracy claim on the basis of these same allegations. To prevail on a claim under § 1985, there must be evidence that the deprivation of constitutional rights was motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). Plaintiffs have come forward with no evidence from which a trier of fact could conclude that such animus motivated the City Defendants. Accordingly, the Court grants summary judgment as to the § 1985 claim.
Similarly, to prevail on their Ralph Act claim, under California law, Plaintiffs must come forward with some evidence from which a trier of fact could conclude that the LAPD Defendants' actions were racially motivated. See, e.g., Simmons v. Superior Ct., 7 Cal. App. 5th 1113, 1123, 212 Cal.Rptr.3d 884 (2016). They have not done so. Therefore, the Court grants the City Defendants' MSJ as to the Ralph Act claim.
Finally, the LAPD Defendants have failed to come forward with any evidence that an official custom, policy, or practice of the City of Los Angeles was the moving force behind their alleged constitutional violations. Perforce, the City is entitled to summary judgment on Plaintiffs' Section 1983 claim for "municipal liability for unconstitutional custom or policy" (FAC ¶ 62 (formatting removed)).
B. Defendants DIC's and Greystar's MSJs
The remaining claims against DIC and Greystar are solely under state law, for trespass, invasion of privacy, and negligence. [See Doc. # 97 at 3-7.] The Court grants DIC's and Greystar's MSJs, for the reasons stated below.
Greystar argues that Plaintiffs' opposition to Greystar's MSJ was untimely filed and should not be considered. Greystar Reply at 2 n.1 [Doc. # 128]. Greystar is incorrect; the opposition, which was due on Veterans Day, was timely filed on the first following court day. See Local Civil Rule 7-9 (requiring opposition briefs to be filed 21 days before a hearing date); Fed. R. Civ. P. 6(a) (discounting legal holidays when calculating periods for filing briefs).
1. Negligence
"A plaintiff in a negligence suit must demonstrate a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury." Vasilenko v. Grace Fam. Church, 3 Cal. 5th 1077, 1083, 224 Cal.Rptr.3d 846, 404 P.3d 1196 (2017) (internal quotation marks and citations omitted).
a. DIC
Plaintiffs assert that DIC has a duty of care toward those it is obligated to protect and that DIC's actions breached this duty by failing to comply with the apartment building's policies and by providing access to the 23rd floor of the building, when DIC staff knew or should have known that "Quinton" was not present. [Doc. # 122 at 10.]
In general, there is no liability for "failure to control the conduct of third persons." E.g., Marois v. Royal Invest. & Patrol, Inc., 162 Cal. App. 3d 193, 199, 208 Cal.Rptr. 384 (1984). Liability may arise, however, if there is a special relationship between the victim and the defendant—such as a security guard hired to protect customers on a business's premises. Id. DIC, which contracts to provide concierge and security services for Plaintiffs' building, appears to have such a special relationship with the building's tenants.
Even where a special relationship exists, however, the duty to take affirmative action embraces only situations where there is "reasonable cause to anticipate [the wrongful] acts and the probability of injury resulting therefrom." Id. at 199-200, 208 Cal.Rptr. 384. "[T]he intentional criminal acts of third persons are generally unforeseeable." Id. at 201, 208 Cal.Rptr. 384.
Plaintiffs have not provided evidence that the DIC staff member who spoke with the LAPD Defendants knew that they had an incorrect unit number. There is no evidence that Michael Hinojosa, the concierge person who allowed the LAPD Defendants access to the residential floors, actually used the computer terminal at the front desk to verify the unit numbers. Plaintiffs rely on a text message exchange between "Don" with DIC and Kevin Garner, Greystar's community manager, at 12:23 p.m. on April 26, 2021, stating that police had been allowed up the elevator for 1512 and "will be going to 2423 next." [Doc. # 123-9 at 3.] But, even viewed in the light most favorable to Plaintiffs, this exchange does not show that Hinojosa—who was not part of this exchange—was aware of the mistake.
Moreover, even if Hinojosa were aware that the LAPD Defendants responded to a unit number different from the units occupied by Quinton, Plaintiffs fail to show that Hinojosa was required to correct the police. As noted above, intentional, unlawful acts by third persons are generally unforeseeable. There is no evidence that the LAPD Defendants did or said anything that would cause DIC's staff to believe the LAPD Defendants were going to unlawfully enter the apartment or seize Pernell, in contrast to simply making contact with the residents of the unit (a lawful action). See, e.g., United States v. Lundin, 817 F.3d 1151, 1158 (9th Cir. 2016) (discussing the "knock and talk" exception to the warrant requirement); United States v. Elliott, 50 F.3d 180, 186 (2d Cir. 1995) (a landlord may validly consent to search of common areas of an apartment building by police); People v. Seals, 263 Cal. App. 2d 575, 577, 69 Cal.Rptr. 861 (1968) ("It appears to be settled that police officers in performance of their duty may, without doing violence to the Constitution, enter upon the common hallway of an apartment building without warrant or express permission to so do."). Officer Blanco said that the LAPD Defendants were "looking for" Quinton and the LAPD Defendants asked to be taken to the floor and for staff not to alert Quinton that the police were present in the building. Blanco Rec. 1 at 1:59-3:15. When the LAPD Defendants returned after accessing the 15th floor, they asked to access the "23rd" floor and inquired where Quinton usually stayed. Blanco Rec. II 00:15-45. Accord 7735 Hollywood Blvd. Venture v. Sup. Ct., 116 Cal. App. 3d 901, 904, 172 Cal.Rptr. 528 (1981) (finding allegations in a complaint against a landlord were inadequate as a matter of law when considering the foreseeability of a crime occurring balanced against the burden of protecting from that crime).
Alternatively, Plaintiffs assert that DIC is liable because staff failed to confirm the tenant and unit number for law enforcement prior to allowing access, in accordance with building policy. [Doc. # 122 at 10.] Assuming without deciding that failure to follow such a policy would amount to negligence, this argument nevertheless fails because Plaintiffs do not come forward with any evidence to support that DIC staff actually acted contrary to building policy. In fact, DIC and Greystar staff consistently testified that if police do not have a warrant, policy requires front desk staff to allow them access. [Doc. # 115-2 at 63, 80-81; Doc. # 123-10 at 11-14; Doc # 123-11 at 11, 13.] Contrary to Plaintiffs' arguments, Sandra Retana did not testify that if LAPD requested access to a particular resident or unit specifically, without a warrant, she was trained to confirm the information. [See Doc. # 122 at 7.] Rather, Retana clearly stated that if police did not have a warrant and sought access to a unit/floor, "we were to allow them to go up." [Doc. # 122-10 at 11.] According to Retana, it was when police sought access to a particular person, not a unit, that the policy was different, and she was trained to search her system for that person's unit number and "get the unit number if they have a warrant." Id. at 13-14. Here, the LAPD Defendants arrived at the building with (what they believed to be) the unit numbers for Quinton and they sought access to the 15th and 23rd floors.
Plaintiffs argue that staff failed to inquire whether the LAPD Defendants had a warrant. But a DIC employee testified that staff did not "need to ask [if police had a warrant]. They [police] as they approach the desk would present the warrant." [Doc. 123-11 at 21.] In any event, Plaintiffs' argument presupposes the existence of a duty to bar law enforcement from the premises if they have no warrant. Given that there is no such duty, and as it is uncontroverted that the LAPD Defendants did not have a warrant, it is unclear how the failure to inquire whether they had a warrant would be material to this analysis.
b. Greystar
Plaintiffs argue that Greystar was negligent because as the property manager, it had a duty to secure the quiet enjoyment of the premises by tenants, which it breached by a policy that allows "carte blanche access to secured and restricted areas," and a duty to confirm the accuracy of law enforcement information before allowing building access. [Doc. # 122 at 10.] Greystar seeks summary dismissal of the negligence claim against it on the basis that it owes no duty to assess the legal propriety of a request for access or to question law enforcement about whether officers were going to the correct units. [Doc. # 115 at 18.] The Court grants Greystar's MSJ as to the negligence claim for the reasons stated below.
Greystar objects to the declaration of Alan Wallace [Doc. # 122-2], in which Wallace identifies himself as an attorney specializing in real estate transactions, who opines as to the scope of a landlord's duty and that Greystar had a duty to confirm the accuracy of information before allowing residential floor access to police officers. Greystar's objections are well taken, and the Wallace Declaration is STRICKEN to the extent that it purports to offer legal conclusions about the scope of Greystar's duty under state law. See, e.g., Pinal Creek Grp. v. Newmont Mining Corp., 352 F. Supp. 2d 1037, 1043 (D. Ariz. 2005) (discussing authority that a lawyer cannot offer expert testimony that invades the court's province by opining on issues of law).
Although Plaintiffs do not address whether landlords and property managers are bound by the same duties to tenants, the Court assumes without deciding that the law relating to landlords also applies to property managers. "A landlord932generally owes a tenant the duty, arising out of their special relationship, to take reasonable measures to secure areas under the landlord's control against foreseeable criminal acts of third parties." Castaneda v. Olsher, 41 Cal. 4th 1205, 1213, 63 Cal. Rptr.3d 99, 162 P.3d 610 (2007). "[T]he existence and scope of a property owner's duty to protect against third party crime is a question of law for the court to resolve." Id.; see also id. at 1214, 63 Cal.Rptr.3d 99, 162 P.3d 610 (referring to this as a "sliding scale" balancing formula). When considering this question, the Court looks to the "crucial considerations" of the foreseeability of harm to the plaintiff and the extent of the burden to the defendant of imposing a duty and liability. See id. at 1213, 63 Cal.Rptr.3d 99, 162 P.3d 610. The Court may also consider
the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the . . . consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.Id. (internal quotation marks and citations omitted).
When balancing the crucial factors here, the foreseeability of police engaging in unconstitutional activity independent from contacting the wrong unit is slim and the burden of imposing a duty on apartment staff to intervene in a police investigation by questioning officers about the accuracy of their information is comparatively high. There is no evidence here from which a trier of fact could conclude that it would be reasonably foreseeable to Greystar that police would not only attempt to contact the unit's inhabitants but would breach the threshold of the unit without consent and unlawfully detain Pernell. Under these circumstances, the Court finds that Greystar did not breach a duty to Plaintiffs by maintaining a policy of allowing police access to residential areas. Nor was Greystar under an obligation to require staff to interrupt police investigations by attempting to verify unit numbers before allowing access to residential floors when police were investigating a crime.
Plaintiffs argue that there is a factual dispute about the existence of a Greystar policy, preventing summary judgment on their negligence claim. There is some dispute regarding whether DIC or Greystar maintained the policy regarding law enforcement—as noted, Greystar employee Banham stated that Greystar had no policies about access by non-tenants, but DIC employee Cunningham testified that it was Greystar's policy (not DIC's) to allow law enforcement and first responders to have access to the residential areas. Regardless of the source of the policy, there was clearly a policy of which both Greystar and DIC were aware that law enforcement were to be allowed access to residential areas. While Banham indicated that it was not Greystar's policy and Cunningham indicated that it was Greystar's policy [compare Doc. # 115-2 at 65-66, 74, with Doc. # 122-11 at 12-13], this is not a material factual dispute. There is no dispute that there was a policy that did not allow unfettered access to the residential floors and DIC and Greystar staff were aware of and enforced that policy. The salient considerations are the foreseeability of harm and the relative burden to Greystar and DIC of imposing duty and liability—and the Court finds in favor of Defendants in this regard.
2. Trespass and Invasion of Privacy
Greystar and DIC both argue that there is no evidence from which a trier of fact could find in Plaintiffs' favor on the trespass or invasion of privacy claims against them. See Greystar MSJ at 19-22; DIC MSJ at 19-22.
"Trespass is an unlawful interference with possession of property." Staples v. Hoefke, 189 Cal. App. 3d 1397, 1406, 235 Cal.Rptr. 165 (1987). "The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm." Ralphs Grocery Co. v. Victory Consultants, Inc., 17 Cal. App. 5th 245, 262, 225 Cal.Rptr.3d 305 (2017). Plaintiffs point to no evidence that a DIC or Greystar employee intentionally, recklessly, or negligently entered onto their property. They do not explain how a DIC or Greystar employee may be held liable under a theory of trespass for the LAPD Defendants' actions. Indeed, they do not respond to Greystar and DIC's arguments for summary judgment on the trespass claims. "[I]n most circumstances, failure to respond in an opposition brief to an argument put forward in an opening brief constitutes waiver or abandonment in regard to the uncontested issue." See Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011). The Court therefore grants summary judgment in favor of Greystar and DIC on the trespass claims.
"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." Shulman v. Grp. W. Prods., Inc., 18 Cal. 4th 200, 231, 74 Cal. Rptr.2d 843, 955 P.2d 469 (1998) (internal quotation marks and citations omitted). Plaintiffs again do not point to evidence that any DIC or Greystar employee intruded upon their privacy or otherwise explain how DIC or Greystar may be held liable for the LAPD Defendants' actions under a theory of invasion of privacy. Accordingly, the Court also grants summary judgment as to the invasion of privacy claims against DIC and Greystar.
IV.
CONCLUSION
Greystar's, DIC's, and Plaintiffs' MSJs are GRANTED. [Doc. ## 113, 115, 116.] The City MSJ is GRANTED IN PART AND DENIED IN PART. [Doc. # 110.] Defendants' MSJs are GRANTED as to the following claims: (1) claims of excessive force, violation of 42 U.S.C. § 1985, assault and battery, and violation of the Ralph Act; (2) claims against the City under federal law; (3) all claims against Greystar and DIC.
The following claims survive: (1) claims under the Fourth Amendment for unlawful entry, detention, and arrest and for negligence, trespass, invasion of privacy, and violation of the Bane Act against the LAPD Defendants and (2) claims against the City for negligence, trespass, invasion of privacy, and violation of the Bane Act. The Court grants summary judgment in Plaintiffs' favor inasmuch as they seek a finding that there is no genuine issue of material fact that Defendant Brian Housos unlawfully entered their apartment by breaching the threshold of the unit without consent.