United States District Court, S.D. California
October 3, 2005.
PAMELA SERMON, Plaintiff,
CITY OF LA MESA, et al., Defendants.
The opinion of the court was delivered by: DANA SABRAW, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
[Doc. No. 40]
This matter comes before the Court on Defendants' motion for
summary judgment or, in the alternative, summary adjudication.
Plaintiff has filed an opposition to the motion and Defendants
have filed a reply. Plaintiff has also filed a supplemental
The matter came on for hearing on September
30, 2005. Jim Miller, Jr., Esq. appeared on behalf of Plaintiff,
and Mitchell Dean, Esq. and Shiva Elihu, Esq. appeared on behalf
of Defendants. For the reasons set out below, the Court grants in
part and denies in part Defendants' motion.
Plaintiff filed her original complaint in this case on
September 22, 2004, in San Diego County Superior Court. Defendant
City of La Mesa removed the case to this Court on October 7,
2004. Upon the City's request to file a motion to dismiss, the Court held a
telephonic status conference on November 2, 2004. At the
conference the parties agreed to the filing of a First Amended
Complaint, in which Plaintiff would identify two of the Doe
Defendants referenced in the Complaint.
Plaintiff filed her First Amended Complaint on November 12,
2004, and identified Officers Brown and Becker as Defendants. She
alleges Defendants Brown and Becker violated her constitutional
rights to be free from unreasonable seizure, unreasonable search
and excessive force. In addition, she alleges Defendant City of
La Mesa is liable pursuant to Monell v. New York City Dep't of
Social Services, 436 U.S. 658, 691-693 (1978). She also asserts
state law claims for negligence, battery, false arrest and for
violation of California Civil Code Section 52.1 against the
Individual Defendants and the City.
The incident giving rise to this case occurred at Plaintiff's
residence at 4261 Lowell Avenue, #7, in La Mesa, California, on
April 24, 2004. At that time, Plaintiff lived in the residence
with her two adult children, Shire and Selina Cain. (Defs.'
Separate Statement of Undisputed Facts in Supp. of Mot. for Summ.
J., Fact No. 3.) At approximately midnight on that date,
Plaintiff called the police complaining that her daughter had
shut off her electricity. (Id. at No. 7.) Selina explained the
electricity was shut off to quiet Plaintiff because she was being
loud and preventing others from sleeping. (Id. at No. 12.)
Defendant Becker and Officer Lawton of the La Mesa Police
Department responded to the call. (Id. at No. 8.) Becker
reported Plaintiff was intoxicated. (Id.) He could smell
alcohol on Plaintiff's breath, observed that her gait was
unsteady, her eyes were red and she was uncooperative. (Id. at
Nos. 9-10.) Plaintiff admitted she had been drinking prior to the
incident. (Id. at No. 11.) Defendant Becker and Officer Lawton
eventually left the scene without making an arrest because they
believed the situation was resolved. (Id. at No. 13.) After the
Officers left the scene, Plaintiff called the police again, this
time to report a petty theft of her television by her daughter.
(Id. at No. 15.) Defendant Becker and Officer Lawton returned
to Plaintiff's residence. (Id. at No. 14.) After speaking to
the parties involved, and believing the situation was settled,
they again left the scene. (Id. at No. 16.) At approximately 3:30 a.m., Plaintiff's son, Shire Cain, called
the police due to Plaintiff's loud and disruptive behavior.
(Id. at No. 18.) Defendant Brown was the first to arrive at the
scene, followed by Defendant Becker and other officers. (Id. at
Nos. 20-21.) Defendant Brown was aware that La Mesa Police had
been summoned to Plaintiff's residence approximately 11 times
since August 2002, and at least five times since March 2004.
(Decl. of Vince Brown in Supp. of Mot. for Summ. J. ("Brown
Decl.") at ¶ 4.) Upon arrival, Defendant Brown spoke with Shire
Cain outside of the residence, and Mr. Cain informed Defendant
Brown his mother had been drinking all day. (Id. at No. 21-22.)
Plaintiff then exited the residence waiving what she believed
were eviction papers at the Officers. (Id. at No. 23.)
Plaintiff's speech was slurred, her eyes were red, her gait was
unsteady, and she appeared drunk. (Id. at No. 24.)
As Defendant Brown began to walk toward Plaintiff, she turned
away from him and started heading back toward her residence.
(Id. at No. 25.) After Plaintiff had reentered her residence,
Defendant Brown grabbed Plaintiff's right arm and pulled her out
of the house. (Id. at No. 26.) At the same time, Defendant
Brown slammed Plaintiff into a wall and applied a Wrist Flex Hold
(or wrist compliance hold),*fn2 fracturing Plaintiff's right
humerus. (Id. at Nos. 27, 31; Pl.'s Separate Statement of Facts
Disputing Defs.' Separate Statement of Undisputed Facts at p. 2.)
Defendant Becker assisted Defendant Brown by grabbing Plaintiff's
left arm. (Defs.' Supp. Separate Statement of Undisputed Facts in
Supp. of Mot. for Summ. J., Fact Nos. 52, 55.)
Plaintiff was eventually arrested for violation of California
Penal Code Section 647(f).*fn3 (Id. at No. 35.) After
Plaintiff was transported from the scene, Shire Cain gave the
officers consent to enter the residence, which they did. (Id.
at Nos. 36-37.) III.
Defendants move for summary judgment on each of Plaintiff's
claims. They argue the Individual Defendants are entitled to
qualified immunity from Plaintiff's Section 1983 claims,
Plaintiff has failed to identify a policy, custom or practice to
support her Monell claim, and all Defendants are entitled to
judgment on Plaintiffs' state law claims. Plaintiff disputes all
of these arguments.
A. Standard of Review
Summary judgment is appropriate if there is no genuine issue as
to any material fact, and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving
party has the initial burden of demonstrating that summary
judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). The moving party must identify the pleadings,
depositions, affidavits, or other evidence that it "believes
demonstrates the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A material
issue of fact is one that affects the outcome of the litigation
and requires a trial to resolve the parties' differing versions
of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306
(9th Cir. 1982).
The burden then shifts to the opposing party to show that
summary judgment is not appropriate. Celotex, 477 U.S. at 324.
The opposing party's evidence is to be believed, and all
justifiable inferences are to be drawn in its favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid
summary judgment, the opposing party cannot rest solely on
conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459
(9th Cir. 1986). Instead, it must designate specific facts
showing there is a genuine issue for trial. Id. See also Butler
v. San Diego District Attorney's Office, 370 F.3d 956, 958
(9th Cir. 2004) (stating if defendant produces enough
evidence to require plaintiff to go beyond pleadings, plaintiff
must counter by producing evidence of his own). More than a
"metaphysical doubt" is required to establish a genuine issue of
material fact." Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)
B. Qualified Immunity
The Individual Defendants argue they are entitled to qualified
immunity from Plaintiff's Section 1983 claim. Qualified immunity
shields government officials performing discretionary functions from liability for civil damages unless their conduct
violates clearly established statutory or constitutional rights
of which a reasonable person would have known. Anderson v.
Creighton, 483 U.S. 635, 640 (1987).
Claims of qualified immunity require a two-step analysis. As a
threshold matter, the court must consider whether the facts
alleged, taken in the light most favorable to the party asserting
the injury, show the defendant's conduct violated a
constitutional right. Saucier v. Katz, 533 U.S. 194, 201
(2001). If the allegations do not establish the violation of a
constitutional right, "there is no necessity for further
inquiries concerning qualified immunity." Id. If the
allegations could make out a constitutional violation, however,
the court must then ask whether the right was clearly established
that is, whether "it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted."
Id. at 202. If an officer makes a reasonable mistake as to what
the law requires, the officer is entitled to immunity. Id. at
In this case, Plaintiff claims the Individual Defendants
subjected her to an unreasonable search, an unreasonable seizure,
and excessive force, all in violation of the Fourth Amendment.
Defendants argue they did not violate Plaintiff's constitutional
rights, or if they did, the rights were not clearly established,
therefore they are entitled to qualified immunity. The Court
addresses each of these claims below.*fn4
Plaintiff alleges a Fourth Amendment claim arising from her
arrest. The Fourth Amendment states:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized. U.S. Const. amend. IV. An arrest is a seizure under
the Fourth Amendment, "and must be supported by
probable cause." Morgan v. Woessner, 997 F.2d 1244,
1252 (9th Cir. 1993) (citing Adams v. Williams,
407 U.S. 143, 18-49 (1972)). "Probable cause exists
when the arresting officer has `a reasonable belief,
evaluated in light of the officer's experience and
the practical considerations of everyday life, that a
crime has been, is being, or is about to be
committed.'" Johnson v. Hawe, 388 F.3d 676, 681
(9th Cir. 2004), cert. denied by City of Sequim
v. Johnson, ___ U.S. ___, 125 S.Ct. 2294 (2005),
(quoting Hopkins v. City of Sierra Vista,
931 F.2d 524, 527 (9th Cir. 1991)).
Here, Defendants argue Defendant Brown had probable cause to
arrest Plaintiff for disorderly conduct as defined in Section
647(f) of the Penal Code based on Plaintiff's appearance and
behavior, which is not in dispute. Plaintiff's eyes were red, she
smelled of alcohol, her speech was slurred, her gait was unsteady
and she was generally uncooperative, loud and disruptive. In
addition, this was the third complaint from Plaintiff's
residence that morning stemming from ongoing domestic
disturbances (from turning off electricity, to petty theft
accusations, and finally to a call by Plaintiff's son due to
Plaintiff's persistent loud and obnoxious behavior).
Plaintiff asserts Defendant Brown could not have determined
Plaintiff was drunk because he was approximately twenty feet from
Plaintiff's residence when he first observed her. However,
Defendant Brown did not arrest Plaintiff immediately upon sight.
He knew about Plaintiff's history; several prior domestic
disturbance calls, excessive all-day drinking, and the call from
Plaintiff's son seeking assistance due to Plaintiff's ongoing
loud and disruptive behavior. He also had the opportunity to
observe Plaintiff after she exited her residence and walked
toward the officers, waiving eviction papers and behaving in a
manner consistent with intoxication. These facts provided
Defendant Brown with probable cause to arrest Plaintiff.*fn6 Accordingly, Plaintiff has not shown Defendant Brown violated
her Fourth Amendment right to be free from an unreasonable
Next, Plaintiff alleges Defendant Brown violated her
Fourth Amendment right to be free from an unreasonable search. There is
no dispute in this case that Defendant Brown entered Plaintiff's
residence to pull her outside, and that he did so without a
warrant. "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,
Here, however, Defendants assert the search of Plaintiff's
residence falls within the threshold exception to the warrant
requirement. The threshold or doorway exception to the warrant
requirement was set forth in United States v. Santana,
427 U.S. 38 (1976). In that case, an undercover police officer went to the
defendant's home to complete a drug purchase. Id. at 39-40.
After leaving the defendant's home, the undercover officer
directed other police officers to the defendant's home to make an
arrest. Id. at 40. As they were approaching the defendant's
home, the police officers saw the defendant standing in the
doorway to her house. Id. When they pulled up to the
defendant's house, they displayed their badges and shouted
"police." Id. The defendant then retreated into the vestibule
of her house, where the police officers caught and arrested her.
The defendant subsequently moved to suppress the drugs and
money found during her arrest, which the district court granted.
Id. at 41-42. The court reasoned the officers' warrantless
entry into the house was unreasonable, and it did not fall within
the "hot pursuit" exception. Id. The Supreme Court reversed. In doing so, the Court first asked
"whether, when the police first sought to arrest [the defendant],
she was in a public place." Id. at 42. The Court answered that
question in the affirmative, reasoning that under the
Fourth Amendment, the defendant had no expectation of privacy when she
was standing in her doorway. Id. The Court stated: "[The
defendant] was not merely visible to the public but was as
exposed to public view, speech, hearing, and touch as if she had
been standing completely outside her house." Id. (citing
Hester v. United States, 265 U.S. 57, 59 (1924)). The Court
then asked whether the defendant's "act of retreating into her
house could thwart an otherwise proper arrest." Id. The Court
answered that question in the negative, and specifically relied
on the "hot pursuit" exception. Id. at 42-43.
Defendants assert the facts of this case are similar to those
in Santana, therefore Defendant Brown's search of Plaintiff's
home was reasonable. However, Defendants fail to show when
Defendants Brown and Becker decided to arrest Plaintiff for
violation of California Penal Code Section 647(f). Defendant
Becker indicates Defendant Brown decided to do so when Plaintiff
was outside her home, (see Decl. of Mark Becker in Supp. of
Mot. For Summ. J. at 2), but he fails to explain how he obtained
that knowledge, and Defendant Brown does not confirm his intent
to arrest Plaintiff at that time. (See Brown Decl. at 2.)
Unlike Santana, there is no evidence in this case that either
Defendant ordered her to stop, or told her she was under arrest.
The contradictory evidence on when Defendant Brown sought to
arrest Plaintiff, combined with the failure to order her to stop
or inform her she was under arrest, and the decision by Defendant
Becker and the other officers not to arrest Plaintiff during
their two recent encounters with her, creates an inference that
Defendant Brown did not intend to arrest Plaintiff while she was
in a public place. Under these circumstances, the threshold
exception does not apply, and Defendant Brown's warrantless
search of Plaintiff's residence was a violation of the
Having found that Plaintiff's allegations could make out a
violation of the Fourth Amendment, the Court must address whether
"it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted." Saucier,
533 U.S. at 202. The situation in this case was as follows: A woman called
police complaining of trouble with her adult children who lived
with her and had turned off her electricity. Upon arriving at the
scene, officers noticed the woman appeared to be intoxicated, and she admitted she had been drinking. After
believing the situation was resolved, the officers left. The
woman then placed another call to police, again complaining of
trouble with her adult children this time asserting her
daughter had stolen her television. The same officers reported to
the scene, and they left after believing the situation was
resolved. Later, the woman's son called the police. When the
officers arrived, the son told them his mother had been drinking
all day, and she was being loud and disruptive. The woman exited
her house and approached the officers waving papers at them. She
appeared to be drunk. Before she reached them, however, she
turned and headed back toward her house and eventually reentered
Contrary to Defendants' suggestion, a reasonable officer
confronted with this situation would have known that a
warrantless entry into the woman's home was unlawful. There was
no attempt to arrest the woman before she reentered her home, no
verbal commands were given to her before she reached her home or
at any other relevant time, and there were no other exigent
circumstances that would have justified a warrantless entry.
Accordingly, Defendant Brown is not entitled to qualified
immunity from Plaintiff's Fourth Amendment claim of an
3. Excessive Force*fn9
Plaintiff's final claim under the Fourth Amendment is for
excessive force. The Fourth Amendment prohibition against
unreasonable seizures permits law enforcement officers to use
only such force to effect an arrest as is "objectively
reasonable" under the circumstances. Graham v. Connor,
490 U.S. 386, 397 (1989). "The `reasonableness' of a particular use of
force must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight."
Graham, 490 U.S. at 396. Because the Fourth Amendment test for
reasonableness is inherently fact-specific, see Chew v. Gates,
27 F.3d 1432, 1443 (9th Cir. 1994) (citing Reed v. Hoy,
909 F.2d 324, 330 (9th Cir. 1989)), it is a test that escapes
"mechanical application" and "requires careful attention to the facts and circumstances of each
particular case." Graham, 490 U.S. at 396; Fikes v. Cleghorn,
47 F.3d 1011, 1014 (9th Cir. 1995). In determining whether a
particular use of force was reasonable, courts consider: "(1) the
severity of the crime at issue, (2) whether the suspect pose[d]
an immediate threat to the safety of the officers or others, . . .
(3) whether he [was] actively resisting arrest or attempting to
evade arrest by flight," and any other "exigent circumstances
[that] existed at the time of the arrest." Chew,
27 F.3d at 1440-41 & n. 5 (citing Graham, 490 U.S. at 396).
Here, Defendants assert Defendant Brown's use of force was
reasonable because he had a proper motivation for Plaintiff's
arrest: Plaintiff was presenting a nuisance to her family and
neighborhood, and she was evading arrest by retreating to her
home.*fn10 Defendant Brown's motivation for Plaintiff's
arrest, however, does not demonstrate his use of force was
reasonable. As stated by the Ninth Circuit, "good intentions will
not redeem an otherwise unreasonable use of force, nor will evil
intentions transform an objectively reasonable use of force into
a constitutional violation." Chew, 27 F.3d at 1440 (citing
Graham, 490 U.S. at 397).
Defendants' second explanation for the use of force similarly
fails to show that force was reasonable under the circumstances.
Although Plaintiff may have been annoying her family, there is no
evidence she was creating a nuisance for her neighbors. In
addition, there is no evidence Plaintiff had threatened anyone
physically, that she had any weapons on her person, that she had
access to any weapons, or that she became combative with
Defendants or otherwise actively resisted arrest. Under these
circumstances, the use of a wrist compliance hold, coupled with
sufficient force to fracture Plaintiff's humerus, was not
Finally, Defendants argue the use of force in this case was
reasonable because Plaintiff was evading arrest. Specifically,
Defendants assert Plaintiff evaded arrest when she turned away
from the officers and returned to her home. As discussed above,
however, there is no evidence that either Defendant attempted to arrest Plaintiff before she returned to
her home by ordering her to stop or informing her she was under
arrest. Absent any evidence that an arrest was underway ("stop,"
"you're under arrest," etc.), Plaintiff's returning to her home
cannot be considered an attempt to evade or resist arrest.
In light of the facts and circumstances discussed above,
Defendant Brown's use of force was unreasonable, and thus
Plaintiff has shown a violation of her Fourth Amendment right to
be free from excessive force.
The next issue this Court must address is whether it would have
been clear to a reasonable officer that his use of force was
unreasonable under the circumstances. Saucier, 533 U.S. at 202.
As set out above, the circumstances in this case were as follows:
A woman is believed to be in violation of California Penal Code
Section 647(f), which makes it a misdemeanor to be drunk in
public and to be intoxicated to a degree that one is unable to
exercise care for one's own safety or the safety of others. She
is not posing a physical threat to anyone, and she is unarmed.
After exiting her house and walking towards the officers, she
turns her back on them and returns to her home.
Contrary to Defendants' suggestion, a reasonable officer
confronted with this situation would know that the use of force
exhibited here would have been unreasonable. See Solomon v.
Auburn Hills Police Department, 389 F.3d 167, 174-75 (6th
Cir. 2004). In Solomon, two police officers were faced with a
woman accused of trespassing, who posed no immediate threat to
the safety of the officers or others, and who was not attempting
to evade or resist arrest. Id. at 174. Nevertheless, the
officers used enough force on the woman to fracture her arm.
Id. at 175. The court found that amount of force was
unreasonable under the circumstances, and "no reasonable officer
would find that the circumstances surrounding the arrest of
Solomon required the extreme use of force that was used here."
Id. The facts of this case are sufficiently similar to those
found in Solomon, and lead this Court to likewise conclude that
a reasonable officer confronted with these facts would know that
the use of force applied here would have been unreasonable and in
violation of the Fourth Amendment. Accordingly, Defendant Brown
is not entitled to qualified immunity from Plaintiff's excessive
force claim. C. Monell Claim
In addition to alleging Section 1983 claims against the
Individual Defendants, Plaintiff alleges a Section 1983 claim
against the City of La Mesa. Under 42 U.S.C. § 1983, "[e]very
person" who acts under color of state law may be sued. The term
"person" has been interpreted broadly, even to include cities,
counties, and other local government entities. See Monell,
436 U.S. 658. Municipalities may be held liable for deprivations of
constitutional rights resulting from their formal policies or
customs. See Monell, 436 U.S. at 691-693; Watts v. County of
Sacramento, 256 F.3d 886, 891 (9th Cir. 2001); Shaw v.
California Dep't of Alcoholic Beverage Control, 788 F.2d 600,
610 (9th Cir. 1986). Locating a "policy" ensures that a
municipality "is held liable only for those deprivations
resulting from the decisions of its duly constituted legislative
body or of those officials whose acts may be fairly said to be
those of the municipality." Board of the County Comm'rs of Bryan
County, Oklahoma v. Brown, 520 U.S. 397, 403-04 (1997) (citing
Monell, 436 U.S. at 694).
In this case, Plaintiff alleges the City's policies of (1)
"improper and inadequate hiring, training, retention, discipline
and supervision of its police officers," (2) "permitting or
condoning the unnecessary and unjustified use of force by police
officers," and (3) "permitting or condoning acts of false arrest
and unlawful search and seizure by its police officers" caused
the violation of Plaintiff's constitutional rights. (First Am.
Compl. at pp. 5-6.) Defendants argue Plaintiff has failed to
present any evidence of these policies. Indeed, Defendants
present evidence that no such policies exist. Specifically, they
present the Declaration of Alan Lanning, the Chief of Police of
the La Mesa Police Department. Mr. Lanning states he has reviewed
the policies and customs of the La Mesa Police Department
"regarding the use of force, and training of officers as to the
proper means of handling, apprehending, detaining, arresting, and
investigating members of the public suspected of criminal
activity." (See Decl. of Alan Lanning in Supp. of Mot. for
Summ. J. at ¶ 3.) Based on that review, Mr. Lanning states he is
"not aware of any unconstitutional policy and custom existent
within the La Mesa Police Department/City of La Mesa." (Id. at
¶ 4.) This evidence adequately refutes Plaintiff's Monell
In an attempt to defeat summary judgment on this claim,
Plaintiff argues there is a genuine issue of material fact.
However, Plaintiff fails to present any relevant evidence to
support that argument. Indeed, she fails to present any evidence to support
her allegation that these unconstitutional policies even exist.
In the absence of any such evidence, Defendants are entitled to
judgment on Plaintiff's Monell claim. See Boyd v. Benton
County, 374 F.3d 773, 784 (9th Cir. 2004) (affirming summary
judgment in favor of city when plaintiff failed demonstrate the
existence of any genuine issue as to city's liability).
D. State Law Claims
Plaintiff's remaining claims arise under California law, and
allege these Defendants were negligent, they committed battery,
they placed Plaintiff under false arrest, and they violated
California Civil Code Section 52.1. Defendants assert they are
entitled to judgment on all of these claims.
1. Negligence and Battery
Defendants' arguments in response to Plaintiff's claims of
negligence and battery are based on the same arguments raised in
response to Plaintiff's Section 1983 claims. In essence,
Defendants assert that since they did not act unreasonably under
the Fourth Amendment, they cannot be held liable for negligence
With respect to Defendant Becker, and for the reasons set out
above in the discussion of Plaintiff's Section 1983 claim, the
Court agrees there are no genuine issue of material fact, and he
is entitled to judgment on Plaintiff's negligence and battery
claims. However, there are genuine issues of material fact as to
whether Defendant Brown acted reasonably under the circumstances.
Accordingly, Defendant Brown is not entitled to judgment on these
2. False Arrest
To prevail on a claim for false arrest, Plaintiff must prove
the following: (1) Defendants arrested Plaintiff without a
warrant, (2) Plaintiff was harmed, and (3) Defendants' conduct
was a substantial factor in causing Plaintiff's harm. CACI 1401.
Defendants do not dispute these elements, but instead rely on
California Penal Code Section 847 to support their request for
judgment on this claim.
California Penal Code Section 847(b) precludes a claim for
against, any peace officer or federal criminal
investigator or law enforcement officer described in
subdivision (a) or (d) of Section 830.8, acting
within the scope of his or her authority, for false
arrest or false imprisonment arising out of any
arrest under any of the following circumstances: (1) The arrest was lawful, or the peace officer, at
the time of the arrest, had reasonable cause to
believe the arrest was lawful.
Cal. Penal Code § 847(b)(1) (emphasis added). As discussed above
in Section III(B)(1), there was probable cause to arrest
Plaintiff. Accordingly, Defendants' request for summary judgment
on this claim is granted.*fn11
3. California Civil Code Section 52.1
Defendants' argument in response to Plaintiff's claim for
violation of California Civil Code Section 52.1 is similar to
that raised in response to Plaintiff's claims of negligence and
battery, namely that because there is no constitutional violation
to support a claim under Section 1983, there can be no liability
under Section 52.1. As to Defendant Becker, the Court agrees with
Defendants. There is no factual dispute about his actions, which
allows the Court to enter judgment in his favor on this claim.
However, as indicated above, there are factual disputes about
Defendant Brown's conduct in this case. Although the Court must
resolve those disputes in Plaintiff's favor for the purposes of
conducting a qualified immunity analysis, those disputes prevent
the Court from entering judgment in his favor on the Section 52.1
For these reasons, the Court grants in part and denies in part
Defendants' motion for summary judgment. Specifically, the Court
grants Defendants' motion for summary judgment on the following
claims: (1) Plaintiff's First Cause of Action against Defendant
Becker, (2) Plaintiff's Second Cause of Action against the City,
(3) Plaintiff's Third Cause of Action against Defendant Becker,
(4) Plaintiff's Fourth Cause of Action against Defendant Becker,
(5) Plaintiff's Fifth Cause of Action against all Defendants, and
(4) Plaintiff's Sixth Cause of Action against Defendant Becker.
The Court denies Defendants' motion for summary judgment on the
following claims: (1) Plaintiff's First Cause of Action against
Defendant Brown, (2) Plaintiff's Third Cause of Action against
Defendants Brown and the City, (3) Plaintiff's Fourth Cause of Action against
Defendants Brown and the City, and (4) Plaintiff's Sixth Cause of
Action against Defendants Brown and the City.
The pretrial conference currently scheduled for October 21,
2005, is rescheduled to October 28, 2005, at 10:30 a.m. The
trial date is set for November 21, 2005, at 9:00 a.m. The
parties are further ordered to contact Magistrate Judge Brooks
and schedule a final settlement conference.
IT IS SO ORDERED.
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