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SERMON v. CITY OF LA MESA

United States District Court, S.D. California


October 3, 2005.

PAMELA SERMON, Plaintiff,
v.
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 opposition.*fn1 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.

I.

  PROCEDURAL BACKGROUND

  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.

  II.

  FACTUAL BACKGROUND

  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.

  DISCUSSION

  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 205.

  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

  1. Seizure*fn5

  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 seizure.*fn7

  2. Search*fn8

  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, 586 (1980).

  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. Id.

  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 Fourth Amendment.

  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 her house.

  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 unreasonable search.

  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 reasonable.

  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 claim.

  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 or battery.

  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 claims.

  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 liability:

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 claim.

  IV.

  CONCLUSION

  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.

20051003

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