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Hall v. City of Fremont

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Nov 22, 2017
No. A147651 (Cal. Ct. App. Nov. 22, 2017)

Opinion

A147651

11-22-2017

JENNA HALL, Plaintiff and Appellant, v. CITY OF FREMONT, ET AL., Defendants and Respondents.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HG08428381)

Jenna Hall appeals from a judgment entered against her after the trial court sustained a demurrer to her claim under Civil Code section 52.1 for interference with a constitutional right by threats, intimidation, or coercion, and a jury returned a verdict in respondents' favor on her remaining causes of action. Hall contends: (1) the court erred in sustaining the demurrer because the elements of her claim were adequately alleged; (2) an audio recording of her interaction with police, and a transcript of the recording, should not have been admitted at trial; (3) an excerpt from a deposition should not have been excluded; (4) the court should have used her proposed jury instructions and erred by using an inadequate special verdict form; and (5) the court erred in denying her motion for a new trial. We will affirm.

I. FACTS AND PROCEDURAL HISTORY

In January 2008, Hall was detained by police pursuant to Welfare and Institutions Code section 5150 (section 5150). In December 2008, she filed a complaint in superior court against respondents herein-the City of Fremont and the detaining officer, Fremont Police Officer Jeremy Miskella-asserting claims under 42 U.S.C. section 1983 and state law. The action was removed to federal court, and summary judgment was entered in respondents' favor. The Ninth Circuit Court of Appeals affirmed the judgment as to Hall's federal claims, but reversed the judgment as to her state law claims for assault and battery, intentional infliction of emotional distress, and false arrest or imprisonment, on the ground there were triable issues of fact as to whether probable cause existed for Hall's detention. With only state claims left, the case was remanded to state court.

A. State Court Proceedings Before Trial

Hall filed a third amended complaint in superior court. Respondents filed a demurrer to Hall's claim under Civil Code section 52.1 (section 52.1), and the court sustained the demurrer with leave to amend.

1. Demurrer Sustained On Section 52.1 Claim Without Leave to Amend

Hall filed a fourth amended complaint, and respondents again demurred to the section 52.1 claim on the ground that Hall failed to state a cause of action. The court sustained the demurrer without leave to amend in November 2014. This order sustaining the demurrer is a subject of Hall's appeal.

Hall's intentional infliction of emotional distress claim was also dismissed, because she refused to submit to a defense psychiatric examination. The matter then proceeded to trial on Hall's causes of action for assault, battery, and false arrest or imprisonment.

2. Motions in Limine

As discussed at greater length post, Hall moved in limine for an order excluding an audio recording of conversations she had with police once she was detained, and respondents moved in limine to exclude an answer given by Fremont Police Sergeant Robert Alexander to a deposition question.

The court denied Hall's motion in limine and admitted the audio recording, and granted respondents' motion and excluded Alexander's deposition answer. Both of these rulings are subjects of Hall's appeal.

3. Jury Instructions

Hall proposed specially-prepared jury instructions relating to probable cause for a detention under section 5150 and battery by a peace officer, along with special verdict forms. The court declined to give these instructions or use the verdict forms. Hall contends this was error, although her counsel agreed in writing to the final version of the jury instructions and the verdict form used by the court.

B. Evidence at Trial

Shortly after noon on January 14, 2008, Officer Miskella and Officer Mark Hanrahan were dispatched to Hall's address, after a home health worker reported to police that Hall's husband, John Foss, was locked in his bedroom and said he wanted to kill himself but was unable to do so. Miskella was the primary investigating officer, and Hanrahan was his cover officer.

Dressed in full police uniform, Officer Miskella and Officer Hanrahan approached Hall's residence and knocked on the door, but no one responded. The officers continued to knock, but had received no response by the time Sergeant Alexander arrived minutes later. When Hall finally opened the door, she was uncooperative, agitated, angry, and upset, spoke with her voice slightly raised, and did not allow the officers inside.

Officer Miskella explained that the police had received a 911 call from a home healthcare worker reporting that someone in the house threatened suicide. Hall denied anyone there was suicidal, explained Foss's serious medical conditions, and said he was sleeping and she did not want him disturbed. Miskella replied that they needed to investigate the suicide threat. Hall eventually let the officers in and directed them to the bedroom.

Officers Miskella and Hanrahan knocked on the bedroom door and identified themselves as police. Foss opened the door and explained that he had told his health care worker, Sally, through the closed bedroom door that he was unable to change his colostomy bag himself, and that Sally's English was not good and she probably called the police because she misunderstood. Miskella believed Foss's explanation and concluded he was not suicidal. Miskella and Hanrahan left the room.

Officer Hanrahan walked out of the residence, while Officer Miskella joined Sergeant Alexander and Hall in the living room. Miskella recounted his interaction with Foss and said Foss did not appear suicidal. Hall responded that she had told the officers as much; Miskella tried to explain why they had needed to speak directly with Foss.

Hall then blurted out, "I'm of sound mind and I'm telling you I'm going to fucking kill myself." The officers found it bizarre that someone would tell a uniformed police officer of a desire to commit suicide. Officer Miskella had never heard such a statement before, and he perceived it as a credible threat to be taken seriously.

Believing Hall was a danger to herself, and concerned for her safety, Officer Miskella decided to detain Hall for a psychiatric evaluation pursuant to section 5150.

When Officer Hanrahan re-entered the house, Officer Miskella informed him that Hall was being placed on a section 5150 hold because she said she wanted to kill herself, and he was calling for an ambulance to transport her to the hospital for a psychiatric evaluation. Miskella and Hanrahan walked outside with Hall to wait for the ambulance. The officers did not use force against Hall, and no physical restraint was needed.

Approximately 90 seconds after Hall made the suicide statement, Officer Miskella activated an audio recorder in his pocket as they waited outside for the ambulance. The recording was played for the jury. The transcript of the recording includes the following exchange: "OFFICER MISKELLA: Jenna, I just want to explain something, what's going on. Okay? I'm under legal obligation when you look at me and tell me - [¶] MS. HALL: I was mad. [¶] OFFICER MISKELLA: When you look at me and tell me - [¶] MS. HALL: I'm not going to kill myself. [¶] OFFICER MISKELLA: -- I'm of sound mind and I'm going to fucking kill myself. [¶] MS. HALL: I am not. I didn't say F-ing. I said - I did not say F-ing. [¶] OFFICER MISKELLA: You said F-ing several times inside the house. [¶] MS. HALL: Well, and that's how mad I am. And I am really mad. I am really mad. I'm mad right now at you guys. [¶] OFFICER MISKELLA: Okay. That's fine. [¶] MS. HALL: Because I - [¶] OFFICER MISKELLA: You can be mad at whoever you want - [¶] MS. HALL: Because - [¶] OFFICER MISKELLA: But - [¶] MS. HALL: Okay. Fine. [¶] OFFICER MISKELLA: I'm just telling you legally - [¶] MS. HALL: Because I'm - well, you asked me what's going on and I'm just telling you. [¶] OFFICER MISKELLA: Okay. Legally, I'm obligated to take action when somebody looks at me and says, "I'm of sound mind and I'm going to kill myself. And I'm telling you that of sound mind." [¶] MS. HALL: Well, I am. [¶] OFFICER MISKELLA: Okay. [¶] MS. HALL: I deal with - you know, my thing is I move forward every day. You know, I get up and I do what I have to do. [¶] OFFICER MISKELLA: Okay. Well, it sounds like you may need to talk to somebody anyway. You're dealing with a lot between this house and your husband. So maybe it'll do you some good to go talk to somebody. [¶] MS. HALL: But the only thing you can do is get up every day and do what you have to do. [¶] OFFICER MISKELLA: Yeah. But maybe by talking to somebody, you can actually deal with some of these things and feel a little bit better. [¶] MS. HALL: I'm not the one that's getting upset. You guys got me upset because no one listens to me. He's the one that's upset. [¶] OFFICER MISKELLA: Okay. You just said you're not the one getting upset, and then you just said you're the one upset. [¶] MS. HALL: I got upset right now. Yes, I got very upset. [¶] OFFICER MISKALLA: Okay. Here's what's going to happen is you're probably going to go over to Washington Hospital and talk to a crisis nurse. Okay? [¶] MS. HALL: No, I'm not. I am not going to Washington Hospital. I am not. [¶] OFFICER MISKELLA: Okay. Stand by right here."

Although outside the residence Hall said she was not going to kill herself, she did not expressly deny saying she was going to kill herself when she was inside the residence. At any rate, Officer Miskella could not release her, because he was not a psychologist or trained to determine which of her statements was truthful, and in his experience people often recanted or gave conflicting statements to avoid detention or jail. Miskella believed Hall was stressed by her situation and caregiving duties, which confirmed his opinion that Hall potentially was a danger to herself.

Hall contends Officer Miskella admitted that his detention of her was based solely on her suicide statement inside the house. At trial, Miskella acknowledged that this statement alone was initially the basis for the detention, but their discussion outside "solidified" his decision to detain her. He also agreed with his counsel that he must have had knowledge that Hall was "dealing with a lot" in regard to her husband and the house, in light of what was discussed in the audiotape only about a minute after leaving the residence.

Officer Miskella went to his vehicle to complete a section 5150 detention form for the treating facility. On the form, Miskella explained that he had been dispatched to conduct a welfare check on Foss, "Hall became angry about the police presence," and Hall said, "I'm of sound mind and I'm telling you I'm going to kill myself." He also noted that Hall later attempted to recant her statement, but that she is "currently stressed/depressed about current health [and] home care issues regarding her husband."

Officer Miskella returned from filling out the section 5150 form and restarted the audio recorder. Hall asked Miskella if he could take her to the hospital in the back of his patrol vehicle, and Miskella declined. As they awaited the ambulance, Hall acknowledged to Hanrahan, "My husband is taking a toll on me." Hanrahan thought "[s]he appeared overwhelmed and stressed and . . . didn't look like she felt right," but she never said anything to Hanrahan about Miskella yelling, grabbing, accosting or sexually harassing her. Hall appeared to have no fear speaking with Miskella, as she told both officers about growing up in Fremont, her family problems, and her stress.

Paramedics arrived and Officer Miskella informed them, among other things: "It turn[ed] out [Foss] was fine. But then [Hall] gets upset at us being there, starts saying that she's going to kill herself. I think she was saying it out of anger. But I'm obligated to take it as a big deal. So -- . . . - she's calmed down now. She's been pretty cooperative." Hall was transported by ambulance to the hospital, where she was evaluated and released.

At trial, Hall offered a different version of events. She testified that, after the officers spoke with Foss, Officer Miskella knelt down next to her as she sat at her computer. Placing his business card on the table, Miskella said with a "soft voice," "If you ever need help, don't hesitate to call me. I'll be there." Hall could feel Miskella's breath "hitting [her] ear," and she construed his statement to be a "come-on." Offended and disgusted, she softly replied, "I would rather kill myself than call you." According to Hall, Miskella then became "very red in the face," started hyperventilating, and told her to stand up and move to the center of the room. Afraid, she complied. When Officer Hanrahan reentered the house, Miskella said he was " 'taking her in on a 5150 because she used the 'F' word.' " Miskella grabbed her by the arm, squeezed it "really, really hard," and pulled her out of the house.

Officer Miskella denied that he kneeled next to Hall, made a sexual advance, or told her to stand up. He further denied screaming, using any force against her, or saying that the detention was because she used the "F" word.

Hall admitted - contrary to the allegations of her fourth amended complaint - that Officer Miskella never screamed or yelled at her. She further admitted that she never told Miskella, Officer Hanrahan, paramedics, or the doctor or nurses that Miskella had made an inappropriate sexual "come-on" or used physical force against her. Foss testified that he heard no screaming or yelling in the living room while the police were there, and he did not observe any injuries on Hall.

C. Verdict, Judgment, and New Trial Motion

In November 2015, the jury returned a verdict in favor of respondents on all causes of action. Judgment was entered accordingly. Hall filed a motion for a new trial, which the trial court denied. This appeal followed.

II. DISCUSSION

A. Demurrer to Section 52.1 Claim

In our de novo review, we assume the truth of all facts properly pleaded in the complaint or reasonably inferred from the pleading, but not mere contentions, deductions, or conclusions of law. We then determine if those facts are sufficient, as a matter of law, to state a cause of action under any legal theory. To prevail on appeal, the appellant must show that the pleaded facts are sufficient to establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer; we will therefore affirm the ruling if there is any ground on which the demurrer could have been properly sustained. (Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052.)

1. Section 52.1

Section 52.1--at times referred to as the Bane Act--provides a cause of action where an individual's exercise or enjoyment of a constitutional right has been interfered with by "threat[s], intimidation, or coercion." (§ 52.1, subd. (a), (b).) Where the constitutional violation is a wrongful arrest, the intimidation and coercion inherent in the wrongful arrest is not enough to support a section 52.1 claim. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 69 (Allen); cf. Cornell v. City and County of San Francisco (2017) 2017 Cal.App.Lexis 1011 (Cornell).) "The statute requires a showing of coercion independent from the coercion inherent in the wrongful detention itself." (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 (Shoyoye).)

2. Application to Hall's Allegations

Although Hall argues that the allegations of her fourth amended complaint were sufficient to state a cause of action, her brief does not set forth specifically what those allegations were. But the record contains her fourth amended complaint, in which her section 52.1 claim alleges in a conclusory manner that "Defendant interfered with Plaintiff's rights by intimidation, coercion, physical abuse, and abuse of authority, specifically by unlawfully detaining and arresting the Plaintiff as set forth more fully above, and particularly in paragraph 11."

Paragraph 11 in turn alleges that the arrest occurred as follows. "After determining the [sic] Foss was not in any way endanger [sic] Officer MISKELLA approached Hall, who was seated at a desk in the living room, knelt down beside her, and whispered in her ear that she should call him if she ever needed help. Hall felt the [sic] MISKELLA's proximity to her body and his statement was [sic] inappropriate, and she interpreted MISKELLA's actions as an unwanted sexual advance. Hall responded that she would rather kill herself than call on MISKELLA. MISKELLA became crazed; he began breathing erratically and shouting at Hall to stand up and repeat what she had said. MISKELLA continued to scream at and verbally abuse Hall while he loomed over her, causing Hall great fear, intimidation, and distress. Hall stood up and tried to move away from MISKELLA. MISKELLA followed Hall, grabbed her forearm violently and with extreme pressure and dragged her out of the house. Hall pleaded with MISKELLA to stop hurting her arm. Outside Hall's home, MISKELLA stated that he was 'taking [plaintiff] in on 5150,' and joked to his fellow policeman that it was because she used a bad word. MISKELLA did in fact arrest Hall, in so doing engaged in coercion independent from this unlawful arrest, coercion that was deliberate and spiteful, utterly without justification, and constituted an assault and battery."

Hall's allegations fail to state a cause of action under section 52.1. The allegations of verbal abuse and joking are inadequate, since speech is insufficient to support an action unless it threatened violence. (§ 52.1, subd. (j).) Hall's allegation that Officer Miskella grabbed her and dragged her out of the house merely depict the coercion inherent in the detention as she tried to "move away" from him, without facts from which it could reasonably be inferred that the officer employed force that was excessive under the circumstances. Similarly, the allegations that the officer screamed, shouted, and "loomed over her" are not distinct from his efforts to detain her, and Hall provides no authority that such conduct satisfies the requirements of section 52.1. Hall's conclusory allegations of coercive interference are also inadequate. (Allen, supra, 234 Cal.App.4th at p. 69.) Hall did not allege any "threats, intimidation or coercion" independent of Miskella's detention for the section 5150 evaluation, and the court did not err in sustaining the demurrer. (Shoyoye, supra, 203 Cal.App.4th at pp. 958-959; see Allen, supra, 234 Cal.App.4th at p. 69 [no cause of action stated under § 52.1, because unlawful arrest and intentional confiscation of homeless plaintiffs' property for violation of camping ordinances did not involve coercion beyond what is inherent in the arrest]; Quezada v. City of Los Angeles (2014) 222 Cal.App.4th 993, 1008 [compelling off-duty police officers to submit to a breathalyzer test or suffer adverse employment consequences, or to consent to a search of a car or suffer its impoundment, did not rise to the level of compulsion required for a violation of § 52.1]; cf. Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 979 [police engaged in coercion independent from unlawful arrest for purposes of § 52.1 where plaintiff was pepper sprayed, slammed onto the ground, and unnecessarily hit, kicked and beaten while on the ground handcuffed].)

3. Hall's Argument

Hall contends the requirement of coercion independent from a wrongful arrest applies only when the wrongful arrest was unintentional, and that Officer Miskella detained Hall intentionally, knowing he lacked probable cause.

a. Reliance on Venegas

Hall first argues that a decision issued before Shoyoye—Venegas v. County of Los Angeles (2004) 32 Cal.4th 820 (Venegas)—stands for the proposition that section 52.1 liability extends to any civil rights violation accompanied by threats, intimidation, or coercion. She then contends that Shoyoye's requirement of threats, intimidation or coercion independent from the coercion inherent in the wrongful detention is limited to unintentional civil rights violations.

Venegas, however, does not stand for the proposition that any wrongful arrest constitutes a violation of section 52.1. The only issue the court decided in Venegas was whether the statute required a showing of discriminatory animus, assuming the acts were accompanied by threats, intimidation and coercion. (Venegas, supra, 32 Cal.4th at p. 841, 843.) A case is not authority for propositions neither considered nor decided. (Allen, supra, 234 Cal.App.4th at p. 67.)

Moreover, we question Hall's reading of Shoyoye. It is true that Shoyoye involved a plaintiff who was wrongly kept in custody due to a mistake, and the court observed that the statute does not address negligent conduct (without an additional threat, intimidation or coercion), or a deprivation of rights brought about by human error rather than intentional conduct. (Shoyoye, supra, 203 Cal.App.4th at p. 958-959.) But Shoyoye did not hold that the requirement of "threats, intimidation, or coercion" independent from the coercion inherent in a wrongful deprivation of constitutional rights applied only when the wrongful deprivation was negligent. To the contrary, the court in Shoyoye stated categorically that "where coercion is inherent in the constitutional violation alleged," the "statute requires a showing of coercion independent from the coercion inherent in the wrongful detention itself." (Id. at p. 959.)

b. Reliance on Federal Cases

Hall next points to federal district court cases, claiming they support the conclusion that the Shoyoye requirement of an independent threat, intimidation or coercion applies only where the deprivation of constitutional rights was unintentional. Of course, federal district court opinions are not binding on this court. Moreover, after the 2013 federal cases Hall cites in her opening brief, the Ninth Circuit Court of Appeals held that section 52.1 does require independent acts of threats, intimidation or coercion. (Lyall v. City of Los Angeles (9th Cir. 2015) 807 F.3d 1178, 1196 (Lyall).) The court concluded: "Numerous California decisions make clear that a plaintiff in a search-and-seizure case must allege threats or coercion beyond the coercion inherent in a detention or search in order to recover under the Bane Act." (Id. at p. 1196, citing Allen, Quezada, and Shoyoye.) As a more recent district court decision observed: "[B]ecause the Ninth Circuit has now affirmatively spoken on the issue; this Court must follow Lyall in holding that a Bane Act search and seizure claim requires threats, intimidation or coercion separate from the coercion inherent in the search and seizure itself. Therefore, merely finding Defendants' actions amounted to an unreasonable seizure and thus violated the Fourth Amendment does not establish, as a matter of law, that Defendants' actions establish liability under the Bane Act." (Sandoval v. County of Sonoma (N.D.Cal. Feb. 16, 2016, Civ No. 11-cv-05817-THE), 2016 WL 612905 at *3.)

In her reply brief, Hall refers us to Morse v. County of Merced (E.D. Cal, July 25, 2016, Civ No. 1:16-cv-000142-DAD-SKO), 2016 WL 4000406, at *1. There, the defendants had arrested and charged the plaintiff with murder in order to retaliate against the plaintiff's father, a local official who had publically criticized their performance. The court noted Lyall and the rule that "a plaintiff cannot prevail on a Bane Act claim which alleges a wrongful search or a wrongful seizure without alleging some threat, intimidation, or coercion that goes beyond the simple fact of the coercion inherent in any seizure." The federal judge then concluded that, in light of Allen, Quezada, and Shoyoye, the rule is "perhaps better articulated as stating a defendant may not be held liable under the Bane Act for an unintentional violation of one's right to be free from unlawful searches and seizures." (Id at p. *2.) Since the plaintiff had alleged more than a mere unintentional violation that would be present in any arrest without probable cause, the court concluded the plaintiff's allegations were sufficient.

As noted above, a federal court opinion is not binding authority. As also noted above, Shoyoye's requirement was not expressly limited to situations in which a wrongful arrest was unintentional, and the distinction between intentionally and unintentionally wrongful arrests was not the basis of Quezada or Allen. That said, we do note there is language in Shoyoye from which a broader interpretation might be argued. For example, the court stated: "The act of interference with a constitutional right must itself be deliberate or spiteful." (Shoyoye, supra, 203 Cal.App.4th at p. 959, italics added.) And it distinguished the facts in Shoyoye from a situation where officers lacked probable cause such that the "officers' conduct became intentionally coercive and wrongful, i.e., a knowing and blameworthy interference with the plaintiffs' constitutional rights." (Id. at p. 961.) From this language, Shoyoye might arguably be read to mean there has to be something more than a wrongful arrest - but not necessarily independent threats, intimidation, or coercion - such as evidence that the officers violated the plaintiff's constitutional rights knowing they were violating those rights. In this regard, Hall alleged that the coercion was "deliberate and spiteful" and "utterly without justification." (See also Cornell, supra, 2017 Cal.App.Lexis 1011 [issued after briefing and oral argument in this case, and distinguishable on its facts].)

But even if Hall were correct in her analysis of Shoyoye, she would not be entitled to relief. As discussed next, any error in sustaining the demurrer was not prejudicial.

4. No Prejudicial Error

A plaintiff is not prejudiced by an erroneous ruling sustaining a demurrer as to one claim, when a second claim based on the same factual allegations was resolved against the plaintiff at trial. (Curtis v. Twentieth Century-Fox Film Corp. (1956) 140 Cal.App.2d 461, 464-465.)

Here, the jury rejected Hall's claims for assault, battery, and false detention. In so doing, the jury found that Officer Miskella did not intend to "cause a harmful or offensive contact" with Hall or place her in fear, did not intentionally touch Hall, and did not "intentionally deprive [her] of her freedom of movement by use of physical barriers, force, threats of force, menace or unreasonable duress." Hall does not explain how, given those factual findings, she could have possibly prevailed on her section 52.1 claim, even if it had been submitted to the jury. In addition, Hall admitted at trial - contrary to the allegations supporting her section 52.1 claim - that Miskella did not scream or yell. In the final analysis, Hall has not demonstrated that sustaining the demurrer as to her section 52.1 claim was prejudicial.

B. Admission of Audio Recording and Transcript

The trial court allowed respondents to introduce the audio recording of Hall's interaction with Officer Miskella and Officer Hanrahan outside her residence, along with a transcript of the recording. Hall contends the evidence should have been excluded under Evidence Code section 352. Her argument lacks merit.

The audio recording and transcript had substantial probative value. The recording began only about 90 seconds after Hall's statement concerning suicide and Officer Miskella's decision to detain her pursuant to section 5150. It includes Miskella's explanation that he was obligated to detain her because he believed that she had said, "I'm going to fucking kill myself," to which Hall responded by denying her use of the word "f-ing" but not denying she said she was going to kill herself. It set forth Hall's discussion about her stressful situation as a caregiver for her husband. Her interaction with the officers was friendly, and she even asked Miskella if she could ride with him in his police vehicle rather than being transported by ambulance. As such, it tended to disprove Hall's later allegation that her statement was a response to a disgusting and offensive "come-on" by Miskella, and that Miskella was angry and she was afraid of him.

Hall nonetheless contends the audio recording and transcript misled the jury because they captured conversations after Officer Miskella decided to detain her, and the jury's determination of probable cause had to be based "on the facts and circumstances presented to the officer at the time of the detention." (People v. Triplett (1983) 144 Cal.App.3d 283, 288.)

The argument is meritless. From the evidence of Hall's conversation and demeanor immediately after the detention, the trier of fact could reasonably draw inferences as to the credibility of the witnesses and their conflicting versions of what transpired at the time of the detention. Moreover, there is no indication that the jury was confused in this regard, since it was correctly instructed by the court that a finding of probable cause would have to be based on "specific[] and articulable facts and circumstances presented to Defendant Jeremy Miskella at the time of his detention of Plaintiff Jenna Hall." (Italics added.)

C. Sergeant Alexander's Deposition Testimony

In his deposition, Sergeant Alexander testified that the statement, "I'd rather kill myself than call you" was "more of a - [']I'd rather die than fly Jet Blue['] or something like that" kind of statement. Hall contends the court should not have granted respondents' motion to exclude the statement. She fails to establish an abuse of discretion.

First, Hall does not demonstrate that this excerpt from Sergeant Alexander's deposition had any probative value. She contends the testimony was relevant to whether the statement Hall says she made - "I'd rather kill myself than call you" - would have provided probable cause. Respondents counter, however, that Alexander's deposition testimony was in response to a hypothetical that did not include the facts or circumstances of Hall's detention, and Alexander was not giving his interpretation of the statement based on his observation of Hall's demeanor or the details of her detention. Hall fails to show otherwise. (In fact, while the motion in limine is in the record, Hall does not direct us to anywhere in the record where the deposition transcript of Sergeant Alexander's statement appears.) She therefore fails to demonstrate error.

Furthermore, Sergeant Alexander's statement in his deposition - ostensibly offered for its truth - was hearsay. Hall contends it was admissible as an admission of a party under Evidence Code section 1220, which provides that "a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." But Sergeant Alexander was not a party to the action. Nor is there any indication in the record that his deposition was taken as a designee of a party under Code of Civil Procedure section 2025.230, or that he made the particular statement within the scope of his agency, or that a party to this litigation adopted his testimony.

The cases on which Hall relies are inapposite. (People v. Richards (1976) 17 Cal.3d 614, 617-618 [statement by actual party to the litigation]; Legg v. United Ben. Life Ins. Co. (1951) 103 Cal.App.2d 228, 229 [same]; Pendell v. Westland Life Ins. Co. (1950) 95 Cal.App.2d 766, 776-777 [insurance rider should not have been admitted]; Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 786-787 [business record exception applied to statements contained in regularly maintained records made by employees whose duties were to investigate and prepare reports to the company, even though based on knowledge of others]; O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570 [executive was authorized to speak for the company, and statements were an authorized admission by the company]; Crawford v. County of Sacramento (1966) 239 Cal.App.2d 791, 800-801 [court properly struck internist's statement that too much anesthetic was given, because he was neither present during the surgery nor a party to the case]; Smith v. Insley's Inc. (8th Cir. 2007) 499 F.3d 875, 878 fn. 1 [decided under the federal rules of evidence].)

At any rate, Hall fails to show that a different result would have been probable if Sergeant Alexander's deposition testimony had been admitted. It would have had no probative value, since at trial Alexander testified he had no memory of Hall or the circumstances of her detention. Moreover, while Hall argues that Alexander's testimony demonstrated a lack of probable cause for her detention based on the statement Hall said she made, there is no indication that the jury believed she made that statement - as opposed to the suicide statement Officer Miskella attributed to her - particularly since the jury found against her on every cause of action.

D. Jury Instructions

Hall contends the jury instructions were deficient because they did not cover the issue of probable cause for a mental health detention based on the facts known to the officer at the time of the detention. She urges that the trial court should have given her proposed special instructions on probable cause necessary for a detention under Welfare and Institutions Code section 5150 and battery by a peace officer.

We review the legal adequacy of jury instructions de novo. (Evans v. Hood Corp. (2016) 5 Cal.App.5th 1022, 1045, 1046 (Evans); Davis v. Honeywell International Inc. (2016) 245 Cal.App.4th 477, 495 (Davis).) " 'A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.' " (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217.) However, a " 'party is not entitled to have the jury instructed in any particular phraseology and may not complain on the ground that his requested instructions are refused if the court correctly gives the substance of the law applicable to the case.' " (Davis, supra, 245 Cal.App.4th at pp. 494-495.)

1. Probable Cause to Detain Under Section 5150

Under section 5150, an officer may detain an individual the officer determines, "as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled." (People v. Triplett (1983) 144 Cal.App.3d 283, 286-287 (Triplett).)

"To constitute probable cause to detain a person pursuant to section 5150, a state of facts must be known to the peace officer (or other authorized person) that would lead a person of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person detained is mentally disordered and is a danger to himself or herself or is gravely disabled. In justifying the particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his or her belief or suspicion. [Citations] Each case must be decided on the facts and circumstances present to the officer at the time of the detention . . . and the officer is justified in taking into account the past conduct, character, and reputation of the detainee." (Triplett, supra, 144 Cal.App.3d at pp. 287-288.)

The court decides whether the officer had probable cause for a detention, so the jury's function is merely to resolve conflicts in the evidence. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) "Accordingly, where the evidence is conflicting with respect to probable cause, 'it [is] the duty of the court to instruct the jury as to what facts, if established, would constitute probable cause.' . . . The jury then decides whether the evidence supports the necessary factual findings." (Ibid., italics added.)

Thus, "CACI 1402, which instructs on probable cause as an affirmative defense to a false arrest claim under state law, . . . requires the court to specify 'facts that, if proved, would constitute reasonable cause to believe that plaintiff had committed a crime in defendant's presence,' and states that if the defendant proves those facts, he 'had the authority to arrest [the plaintiff] without a warrant.' " (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 776 (Schmidlin).)

2. Instruction on Probable Cause Necessary for Detention

The jury was given the following instruction, based on CACI 1402: "Defendant Jeremy Miskella claims the detention pursuant to Welfare & Institutions Code section 5150 of Plaintiff Jenna Hall was not wrongful because he had probable cause and the authority to detain Plaintiff Jenna Hall for a mental health examination. [¶] If Defendant Jeremy Miskella proves that Plaintiff Jenna Hall stated that she wanted to kill herself, and that a person of ordinary care and prudence would believe, or entertain a strong suspicion, that Plaintiff Jenna Hall was mentally disordered and was a danger to herself or others, or was gravely disabled, based on specific and articulable facts and circumstances presented to Defendant Jeremy Miskella at the time of his detention of Plaintiff Jenna Hall, then Defendant Jeremy Miskella had probable cause and the authority to detain Plaintiff Jenna Hall."

The court's instruction incorporated the elements of probable cause specified in Triplett, and supplied the facts the jury would need to find for probable cause. (See Schmidlin, supra, 157 Cal.App.4th at p. 776.)

Hall proposed the following instruction: "Peace officers have been entrusted with the duty, on probable cause, to take into custody any person who, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, and to place such a person in a county-designated facility for a 72-hour treatment and evaluation. [¶] To constitute probable cause to detain a person for a mental health evaluation, a state of facts must be known to the peace officer that would lead a person of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person detained is mentally disordered and is a danger herself or is gravely disabled. In justifying the particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his or her belief or suspicion. [¶] The Defendants claim that the arrest was not wrongful because officer Miskella had the authority to arrest Mrs. Hall without a warrant for a mental health evaluation. Officer Miskella had the authority to arrest Mrs. Hall if he proves that, at the time he arrested Mrs. Hall, he was aware of specific facts that would lead a reasonable person to believe that Mrs. Hall was mentally disordered and a danger to herself."

Hall's contention that the court erred by not giving her proposed instruction is meritless. In the first place, Hall's counsel reviewed the instruction that was eventually given to the jury, and approved it in writing. Any objection is therefore waived and forfeited.

Moreover, Hall fails to establish that the court's instruction did not correctly provide the substance of the applicable law, or that the court should have given her proposed instruction instead. While Hall's proposed instruction provided a more exhaustive legal definition of probable cause, the court's instruction properly informed the jury of the facts it would need to find in order to find probable cause.

3. Battery by Peace Officer

The court instructed the jury, based on CACI 1305 as modified to apply to a section 5150 detention, as follows: "Plaintiff Jenna Hall claims that Defendant Jeremy Miskella harmed her by using unreasonable force to detain her for a mental health evaluation pursuant to Welfare & Institutions Code section 5150. To establish this claim, Jenna Hall must prove all of the following: [¶] 1. That Jeremy Miskella intentionally touched Jenna Hall or caused Jenna Hall to be touched; [¶] 2. That Jeremy Miskella used unreasonable force to detain Jenna Hall for a mental health evaluation pursuant to Welfare & Institutions Code section 5150; [¶] 3. That Jenna Hall did not consent to the use of that force; [¶] 4. That Jenna Hall was harmed; and [¶] 5. That Jeremy Miskella's use of unreasonable force was a substantial factor in causing Jenna Hall's harm. [¶] A peace officer may use reasonable force to detain a person for a mental health examination when he has reasonable cause to believe that person is a danger to herself. [¶] In deciding whether Jeremy Miskella used unreasonable force, you must determine the amount of force that would have appeared reasonable to a peace officer in Jeremy Miskella's position under the same circumstances."

Hall proposed the following instruction (with the primary differences italicized): "Mrs. Hall claims that officer Miskella harmed her by using unreasonable force to arrest or detain her. To establish this claim, Mrs. Hall must prove all of the following: [¶] 1. That officer Miskella intentionally touched Mrs. Hall; [¶] 2. That officer Miskella used unreasonable force to arrest or detain Mrs. Hall; [¶] 3. That Mrs. Hall did not consent to the use of that force; [¶] 4. That Mrs. Hall was harmed; and [¶] 5. That Officer Miskella's use of unreasonable force was a substantial factor in causing Mrs. Hall harm. [¶] A peace officer may use reasonable force to arrest or detain a person when he or she has reasonable cause to believe that that person is mentally disordered and is a danger to himself or herself. Even if the peace officer is mistaken, a person being arrested or detained has a duty not to use force to resist the peace officer unless the peace officer is using unreasonable force. [¶] In deciding whether officer Miskella used unreasonable force, you must determine the amount of force that would have appeared reasonable to a peace officer in officer Miskella's position under the same or similar circumstances. You should consider, among other facts, the following: [¶] (a) The seriousness of the mental disorder, if any, that Mrs. Hall was experiencing at the time of the arrest. [¶] (b) Whether Mrs. Hall reasonably appeared to pose an immediate threat to the safety of herself or of others; [¶] (c) Whether Mrs. Hall was actively resisting arrest or attempting to evade arrest." (Italics added.)

Hall fails to show that the words she added in her purported instruction constituted an accurate and necessary statement of the law, or that the court's instruction failed to adequately provide the substance of the applicable law. She fails to demonstrate prejudicial error. (Evans, supra, 5 Cal.App.5th at p. 1045; Davis, supra, 245 Cal.App.4th at pp. 494-495.)

Hall also suggests the verdict form did not adequately address probable cause. But Hall approved the verdict form before it was given to the jury, so she cannot complain of it now. In any event, she fails to establish error, because she fails to demonstrate that the instructions on probable cause were insufficient. And she fails to demonstrate prejudice, since the jury rejected her claims without having to reach the issue of probable cause.

E. New Trial Motion

Hall contends the court erred in denying her new trial motion because her verbal statement constituted petitioning activity, her constitutional right to be free of retaliation was violated, and this court's duty to reweigh the evidence mandates a new trial because the verdict was contrary to law. Hall misperceives our role, as we do not reweigh the evidence. Moreover, Hall fails to establish that the verdict was contrary to law or against the weight of the evidence.

In her reply brief, Hall argues that the verdict cannot be reconciled with the evidence and is contrary to law, because the jury found that Hall was not detained, when it was undisputed she was. The argument is unavailing. In the first place, it was not raised in Hall's opening brief. At any rate, the special verdict form asked the jury, "Did Defendant Jeremy Miskella intentionally deprive Plaintiff Jenna Hall of her freedom of movement by use of physical barriers, force, threats of force, menace, or unreasonable duress?" (Italics added.) The jury could have reached this conclusion even though it was undisputed that Hall was detained for a mental health evaluation.

III. DISPOSITION

The judgment is affirmed.

/s/_________

NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.


Summaries of

Hall v. City of Fremont

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Nov 22, 2017
No. A147651 (Cal. Ct. App. Nov. 22, 2017)
Case details for

Hall v. City of Fremont

Case Details

Full title:JENNA HALL, Plaintiff and Appellant, v. CITY OF FREMONT, ET AL.…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Date published: Nov 22, 2017

Citations

No. A147651 (Cal. Ct. App. Nov. 22, 2017)