United States District Court, N.D. California
November 22, 2005.
ANGEL J. MENDEZ, Plaintiff,
COUNTY OF ALAMEDA, et al., Defendants.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The motion of defendant Derek Meza for summary judgment came on
for hearing before this court on November 16, 2005. Plaintiff
appeared by his counsel Julie M. Houk, and defendant appeared by
his counsel Clyde A. Thompson. Having read the parties' papers
and carefully considered their arguments and the relevant legal
authority, and good cause appearing, the court hereby GRANTS the
motion as follows and for the reasons stated at the hearing.
This is an action brought under 42 U.S.C. § 1983. Plaintiff
Angel James Mendez ("Mendez") alleges that defendants County of
Alameda and Alameda County Sheriff's Deputies Derek Meza ("Deputy
Meza") and J. Russell ("Deputy Russell") violated his rights
under the First, Fourth, Eighth, and Fourteenth Amendments to the
United States Constitution.
Mendez also asserts state law claims of negligence (against all
defendants), battery (against all defendants), violation of his
rights under California Civil Code §§ 52 and 52.1 (against all
defendants), and false arrest and imprisonment (against the
County and Russell only).
Deputy Meza now seeks summary judgment on all claims asserted
Mendez's allegations against Deputy Meza arise from an incident
that occurred on October 5, 2002. On that date at approximately
12:55 a.m., Deputy Russell and another Alameda County Sheriff's
Deputy responded to a complaint from Nancy Arteaga ("Arteaga"),
who was Mendez's girlfriend at the time. Arteaga complained that
Mendez had arrived at her house with a gun.
Deputy Russell prepared an incident report, and Arteaga signed
a statement indicating that Mendez had been violent and had
assaulted her several times in the past while under the influence
of crystal methamphetamine, and that she was fearful for her own
safety and the safety of her family. She stated that on October
5, 2002, Mendez had come to her house, threatened her father with
a gun, called her a "bitch," and pushed her into the bushes
outside of her house. Arteaga, who was four months pregnant with
Mendez's child at the time, sustained injuries to her right knee,
leg, and arm. When she asked Mendez why he had shoved her into
the bushes, Mendez allegedly spit on her and said, "Shut up,
bitch!" According to Arteaga, Mendez then got into a car driven
by his mother, and the car left the scene.
Deputy Russell wrote up the report and took the statement from
Arteaga. He stated in his report that two other officers went to
Mendez's house, but no one answered. According to Deputy Russell,
while he was at Arteaga's residence, she received three phone
calls from Mendez, who was calling her from his residence.
Arteaga told Mendez to stop calling her. At Deputy Russell's
request, Arteaga called Mendez, but when Deputy Russell tried to
talk to him, Mendez hung up. Deputy Russell called Mendez again
from Arteaga's phone; Mendez answered but then immediately hung
Later the same morning, Deputy Meza spoke briefly with Deputy
Russell in the locker room of the Sheriff's Office. Deputy
Russell was just ending his shift as Deputy Meza was starting
his. Deputy Russell told Deputy Meza that if Meza got a
"callback" to "the house on A Street" (referring to Arteaga's house), there was probable cause
to arrest Mendez on a domestic violence charge.
Deputy Meza's supervisor, Sergeant Dan Murray ("Sgt. Murray"),
also told Deputy Meza that there was probable cause to arrest
Mendez on a domestic violence charge. Sgt. Murray told Deputy
Meza to contact Mendez and arrest him. He told Deputy Meza to go
to Arteaga's home to look for Mendez if he could not contact
Mendez at home.
Deputy Meza then went to Mendez's home with the intent of
arresting him. He knocked on the door to Mendez's apartment, and
saw the vertical blinds open and close quickly, but there was no
response. He continued to knock on the door, but no one came out
of the apartment.
As instructed by Sgt. Murray, Deputy Meza next went to
Arteaga's house, and asked her whether she had seen Mendez. When
Arteaga received a phone call from Mendez, Deputy Meza asked her
for the phone, and listened as Mendez shouted, "You fucking
bitch, why did you send the police to my house?!!" Deputy Meza
then introduced himself to Mendez on the phone, and asked Mendez
why he had not answered the door earlier. Mendez responded, "I
don't give a fuck who you are. I don't have to do anything you
say. You punk motherfucker, I'll kick your fucking ass." Deputy
Meza told Mendez he needed to talk to him about the incident that
had happened during the previous night. Mendez hung up the phone.
Deputy Meza obtained Mendez's telephone number from Arteaga and
called him back. Mendez did not pick up the phone, so Deputy Meza
left a message on his answering machine. On the message, Deputy
Meza asked Mendez to pick up the phone, and indicated that he
would apprehend him if he saw him:
Angel, pick up the phone. As soon as you step out
your door, I'm going to nab you. If you call over to
her house again, make any threats, I'm going to kick
your door down and take you out, ok? You need to grow
up, quit being a little baby. You got a problem, you
call me directly, Deputy Meza. You step outside your
door, you better be ready `cause I'm going to get you
myself. Next time beat up on a guy instead of messing
with a girl. Step outside and I'll be waiting for
Deputy Meza did not attempt to call Mendez again, did not leave
any other messages for him, and had no further contact with him.
No arrest warrant was issued for Mendez, and he was never charged in connection with the October 5, 2005, incident.
On October 10, 2005, Barbara Overland ("Mrs. Overland"), a
resident of Hayward who did not know Mendez and had never
previously seen him, found him sleeping on a lounge chair in the
garage of her home shortly before 8:00 p.m. She noticed that he
had a bruise on his forehead. Neither she nor her son Cory
Overland was able to wake Mendez, and she called Hayward police
for assistance in removing him from her property. The initial
call for service was put out on the police radio at 8:28 p.m.
Deputy Gemmell responded that he was a few minutes away.
Before Deputy Gemmell arrived, however, Deputy Russell arrived
on the scene in an Alameda County Sheriff's Department vehicle.
Mrs. Overland told Deputy Russell she did not necessarily want
Mendez arrested, but just wanted him off her property. Deputy
Russell told Mrs. Overland he would take care of it. At 8:49
p.m., Deputy Russell radioed dispatch that he had Mendez in
While the officers were in the garage, Mrs. Overland (who could
not see what was going on in the garage) heard Mendez say, "Okay,
okay, I'll quit struggling." The officers then walked out of the
garage with Mendez, who was in handcuffs. Deputy Gemmell arrived
at about that time. He could not recall if Mendez seemed to be in
any physical distress. Mrs. Overland recalled that Mendez was
able to walk without any problem, and she saw no blood on
him.*fn1 Deputy Russell and Deputy Gemmell walked Mendez to
the patrol vehicle, and Deputy Gemmell conducted a pat-down
After Mendez was placed in the police vehicle, one of the
officers Mrs. Overland could not recall which one told her
that it was a good thing she had called them, as Mendez was
wanted for having beaten someone up. Deputy Gemmell believed that
Mendez was going to be charged with public intoxication and
resisting arrest. That was the last interaction Deputy Gemmell had with Mendez.
Deputy Gemmell returned to his shift, and Deputy Russell
transported Mendez to Santa Rita Jail. Mendez testified that it
took about 20 minutes to drive to Santa Rita from Mrs. Overland's
home. He admitted that during that time, he was cursing Deputy
Russell. Deputy Russell claimed that Mendez slipped out of his
seatbelt during the ride, and attempted to kick out the window of
the patrol vehicle.
According to Mendez, after they arrived at Santa Rita and he
was removed from the patrol vehicle, he began walking toward the
door of the jail. At that point, he asserts, Deputy Russell
grabbed him from the back of his head and slammed his face into
the wall of the building, chipping his tooth, and then began
beating him. Mendez claims that some of the blows were to the
stomach area, and that he collapsed and fell to the sidewalk.
Deputy Russell denies that he assaulted Mendez when they
arrived at Santa Rita. He maintains that after he pulled Mendez
(whom he claims was still kicking) out of the patrol vehicle, he
placed Mendez in a holding cell at the jail. After removing the
handcuffs, he noticed that Mendez had vomited and was drooling on
himself. He attempted to find a jail nurse to obtain clearance
for Mendez to be booked into the jail.
According to deposition testimony of Irene Favila, the nurse at
Santa Rita who responded to the request, the arresting agency
will not bring an arrestee to the jail if he is in acute
distress, but will generally automatically take him to the
hospital to get a clearance before transporting him to the jail.
She also testified, however, that when an inmate or arrestee is
extremely drunk, or belligerent or agitated, the officer will
bring him straight to a holding tank, and a nurse has to clear
the inmate/arrestee to determine if he can be safely held in
custody there, before he can be fingerprinted and booked.
When Nurse Favila arrived at the holding tank, a number of
deputies were standing inside. She noticed that Mendez was lying
on his side on the concrete bench. She asked him to sit up so she
could evaluate him, and a deputy attempted to pull him up into a
seated position, but Mendez kept slumping back down. She had the
impression that Mendez could not sit up on his own. She thought
at first that he was intoxicated, because she noticed the smell of alcohol. She believed he was conscious because every
time she asked him a question e.g., "Are you sick?" "Are you on
any medication?" "Are you injured?" "Can you talk to me?" he
would moan. She observed that his eyes were crossed and he had
some contusions on his face. Because she could not get answers to
her questions and because she was concerned that the crossed eyes
might indicate some neurological condition, she stated that she
would not clear Mendez, that Mendez would have to be taken to the
hospital to be cleared.
After Nurse Favila said she would not clear Mendez, she became
aware that Mendez was Deputy Russell's arrestee. She claims that
Russell became upset and yelled at her, saying that her decision
was "BS," and that he wanted another nurse to clear Mendez, to
get a second opinion. Favila told Deputy Russell that there was
another nurse he could talk to.
Nurse Ella Garrido was in the office, but she indicated to
Nurse Favila that she did not want to go see Mendez, because she
did not want to override Favila's decision. Deputy Russell told
Favila that he was familiar with Mendez, that Mendez had been at
Santa Rita on many occasions and that his eyes were always
crossed, and that he was simply intoxicated. However, Favila
still refused to clear him.
Nurse Favila asked Deputy Russell if Mendez had been involved
in a car accident or a fight, because she wondered why he had
contusions on his face, and Russell said that he had received a
call from an old lady saying there was a drunk guy sleeping in
her garage, and that when Russell arrived, Mendez looked as he
did when he arrived in the holding tank.
Deputy Russell testified that he then attempted to locate a
sergeant to override Nurse Favila's decision, because he believed
that Mendez was merely drunk, and that Favila had not conducted
an adequate assessment because she simply stood at the doorway to
the holding tank while she made her decision, rather than going
inside to see Mendez. Deputy Russell spent five or ten minutes
looking for the sergeant Sgt. Rosales but Rosales said she
would stand by the nurse's decision.
At that point, Deputy Russell decided to take Mendez to the
hospital. He removed Mendez from the holding tank, walked him to
another cell closer to the exit, and waited for two other deputies to arrive so they could follow Deputy Russell to
the hospital in case Mendez tried to kick out the window again.
When Deputy Russell returned to the cell, he found Mendez lying
on the floor in a spread-eagle position. He noticed that Mendez
was sweating quite a bit. He told Mendez to sit up, but Mendez
did not respond. Deputy Russell cuffed him, and more or less
carried him to the patrol vehicle. Deputy Russell then drove
Mendez to the hospital, and the other deputies followed. Mendez
was admitted to Valley Care Medical Center in Pleasanton a few
minutes before 11:00 p.m.
Mendez was assessed at Valley Care, and was determined to be in
critical condition. The doctor who treated him, Dr. Howard
Yoshioka, testified that Deputy Russell stated that Mendez had
been injured earlier in the day in an altercation while
intoxicated, and that Mendez had been tackled to the ground
during his arrest.
Mendez was then transported by ambulance to Eden Hospital in
Castro Valley, for emergency surgery. The doctor who treated him
at Eden Hospital, Dr. Kristen Engle, asked Mendez what had
happened, and testified that he told her he had been beaten by
the police. Dr. Engle also testified that Mendez was "near
extremis" when he was admitted his blood pressure was almost
non-existent, and he had lost a lot of blood. She performed
emergency surgery, and determined that Mendez's liver was crushed
and his severe blood loss was caused by the liver damage.
According to Dr. Engle, the injury that caused the damage to
Mendez's liver occurred within an hour of his admission to Valley
Care, and was consistent with either one blow or multiple blows
of a deep and narrow nature to the abdomen.
Mendez claims that following this incident, an unidentified
Alameda County Sheriff's Deputy visited Cory Overland, and
suggested to him that he should forget anything he might know
about the incident on the Overland property. According to Cory
Overland, he had an outstanding warrant for a seatbelt violation,
and was afraid that if he talked to anyone about the incident he
might be arrested.
Mendez also asserts that after he filed this lawsuit, Deputy
Russell retaliated against him on February 13, 2004, claiming
that Mendez was violating a domestic violence restraining order obtained by Arteaga, even though Arteaga (who by this time
had become Mrs. Mendez) had told Deputy Russell that there was no
violation of the restraining order because the order had been
Finally, Mendez claims that on another occasion, Alameda County
Deputy Sheriff Frank Cessna, with whom Deputy Russell has
socialized outside of work, responded to a subsequent incident
involving Arteaga that had nothing to do with Mendez. Arteaga
testified that Deputy Cessna told her that Mendez was "no good"
and that she should leave him, and that if she saw him again, she
should tell him that Cessna was going to beat him up worse than
Deputy Russell did. (Deputy Cessna denied saying this.)
Mendez filed this action on October 3, 2003, and filed a
first amended complaint on January 24, 2005. Mendez alleges that Deputy
Meza threatened Mendez when he left the message on Mendez's
answering machine, and that Deputy Russell and Deputy Meza later
agreed to violate Mendez's constitutional rights. Mendez asserts
that Deputy Russell and Deputy Meza acted pursuant to this
conspiracy when they committed the constitutional violations as
well as when they engaged in the acts alleged in the state law
A. Legal Standard
Summary judgment is appropriate when there is no genuine issue
as to material facts and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56. Material facts are those
that might affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is "genuine" if there is sufficient evidence for a
reasonable jury to return a verdict for the nonmoving party.
A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion, and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Where the moving party will have the burden of proof at
trial, it must affirmatively demonstrate that no reasonable trier
of fact could find other than for the moving party. On an issue
where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the
district court that there is an absence of evidence to support
the nonmoving party's case. Id. If the moving party meets its
initial burden, the opposing party must then set forth specific
facts showing that there is some genuine issue for trial in order
to defeat the motion. See Fed.R.Civ.P. 56(e); Anderson,
477 U.S. at 250.
"To show the existence of a `genuine' issue, . . . [a
plaintiff] must produce at least some significant probative
evidence tending to support the complaint." Smolen v. Deloitte,
Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990) (quotations
omitted). The court must view the evidence in the light most
favorable to the non-moving party. United States v. City of
Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). The court must not
weigh the evidence or determine the truth of the matter, but only
determine whether there is a genuine issue for trial. Balint v.
Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). If the
nonmoving party fails to show that there is a genuine issue for
trial, "the moving party is entitled to judgment as a matter of
law." Celotex, 477 U.S. at 323. Regardless of whether plaintiff
or defendant is the moving party, each party must "establish the
existence of the elements essential to [its] case, and on which
[it] will bear the burden of proof at trial." Id. at 322.
B. Defendant's Motion
Deputy Meza argues that summary judgment should be granted on
the constitutional claims because Mendez cannot establish a
constitutional violation by Deputy Meza under 42 U.S.C. § 1983;
because Deputy Meza is entitled to qualified immunity; and
because there is no evidence to support the existence of a
conspiracy under § 1983.
With regard to the state law claims, Deputy Meza contends that
Mendez's state law claims are barred by governmental immunities;
that the claim under Civil Code § 52 cannot stand because Mendez
cannot prove that Deputy Meza intended to discriminate against
him on the basis of race, nationality, or gender; that the claim
under Civil Code § 52.1 fails because Mendez cannot prove that
Deputy Meza interfered with a constitutional or legal right and
cannot prove that he actually feared Deputy Meza's voicemail
message; that the negligence claim is without merit because
Mendez cannot prove that Deputy Meza's behavior caused his injuries and there is no evidence that Deputy Meza
engaged in a conspiracy to harm Mendez; and that the battery
claim fails because Mendez cannot prove that Deputy Meza ever had
any physical contact with Mendez and there is no evidence that
Deputy Meza participated in a conspiracy to harm Mendez.
1. Federal constitutional claims
Deputy Meza alleges numerous constitutional claims under
42 U.S.C. § 1983. Section 1983 "provides a cause of action for the
`deprivation of any rights, privileges, or immunities secured by
the Constitution and laws' of the United States." Wilder v.
Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting
42 U.S.C. § 1983). Section 1983 is not itself a source of
substantive rights, but merely provides a method for vindicating
federal rights elsewhere conferred. See Graham v. Connor,
490 U.S. 386, 393-94 (1989). To state a claim under § 1983, a
plaintiff must allege two essential elements: (1) that a right
secured by the Constitution or laws of the United States was
violated and (2) that the alleged violation was committed by a
person acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda County,
811 F.2d 1243, 1245 (9th Cir. 1987).
Mendez alleges that defendants violated his First, Fourth, and
Fourteenth Amendment rights. He does not specify which particular
constitutional claims are directed toward conduct by Deputy Meza.
At the hearing, counsel clarified that Mendez is asserting that
Deputy Meza violated his Fourth Amendment rights to be free from
the use of excessive force and free from unlawful search and
seizure, and his Fourteenth Amendment due process right not to be
deprived of proper medical treatment while in pretrial custody,
and that he is not asserting claims against Deputy Meza under the
In his moving papers, Deputy Meza notes Mendez's various
constitutional claims, and argues that there is no evidence to
support any of them. Deputy Meza asserts that the only two
incidents involving him are the allegedly threatening voicemail,
and the alleged conspiracy with Deputy Russell to violate
Mendez's constitutional rights. He contends that mere verbal
threats are not sufficient to constitute constitutional
violations, and that there is no evidence of a conspiracy between
Deputy Meza and Deputy Russell to violate Mendez's constitutional rights.
In his opposition, Mendez focuses on the Fourth Amendment
claim. He implicitly acknowledges that he has no direct claim for
excessive force against Deputy Meza. He concedes that he is not
claiming that the verbal threat alone violated his constitutional
rights, but contends that there are disputed material facts and
"credibility issues" that preclude summary judgment on the
question whether Deputy Meza conspired together with Deputy
Russell to violate Mendez's Fourth Amendment rights.
In order to avoid summary judgment on a claim of conspiracy to
violate constitutional rights under § 1983, "the plaintiff must
state specific facts to support the existence of the claimed
conspiracy." Burns v. County of King, 883 F.2d 819, 821 (9th
Cir. 1989). Mendez asserts that the following facts establish the
existence of a conspiracy between Deputy Meza and Deputy Russell
1) on October 5, 2002, Deputy Russell told Deputy Meza in
passing in the locker room of the Sheriffs' Department that
probable cause existed to arrest Mendez for domestic violence; 2)
Deputy Meza and Deputy Russell did not discuss any other cases
during their brief conversation in the locker room; 3) Deputy
Meza went to Mendez's home to investigate that same day; 4)
Deputy Meza did not try to obtain an arrest warrant on that day;
5) Deputy Meza left a threatening message on Mendez's answering
machine that same day; and 6) Deputy Russell allegedly beat
Mendez up after apprehending him in the course of responding to a
trespassing call on October 10, 2002.
Mendez contends that the actions taken by Deputy Meza, combined
with the allegation (not established) that Deputy Russell beat
him up in the course of arresting him, establish that a
conspiracy existed between Deputy Meza and Deputy Russell to
violate his Fourth Amendment rights.
Deputy Meza argues that the facts listed by Mendez are
insufficient to establish that he is liable for Mendez's alleged
injuries, because there is no causal or logical conclusion
between the conduct described in Nos. 1-5, above, and the
occurrence described in No. 6. He also contends that there is no
evidence that he and Deputy Russell had a "meeting of the minds"
with regard to injuring Mendez, or that he and Deputy Russell
worked closely together to investigate or arrest Mendez on any continuing basis, or that
they had several meetings or discussions about Mendez, or that
they had any agreement to violate Mendez's constitutional rights.
Moreover, Deputy Meza asserts that he could not possibly have
known on October 5th, when he spoke to Deputy Russell in the
locker room, that Deputy Russell would be called to Mrs.
Overland's home to roust Mendez out of the garage on October
10th, let alone conspire with Deputy Russell to injure Mendez on
Deputy Meza argues that in the absence of a conspiracy to
violate Mendez's constitutional rights, the claim amounts to
nothing more than allegations of a verbal threat (the message
left on Mendez's answering machine), which does not rise to the
level of a Fourth Amendment violation because Deputy Meza did not
inflict any force or violence on Mendez.
Deputy Meza also contends that even if the court finds a
triable issue with regard to the alleged constitutional
violations, he should be entitled to qualified immunity.
Specifically, Deputy Meza asserts that a reasonable officer would
believe that it is lawful to make a mere verbal threat, in the
absence of any physical violence, during an attempt to arrest
Mendez responds Deputy Meza is not entitled to qualified
immunity, because at the time of the incidents alleged in the
complaint, the law was clearly established that a conspiracy by
law enforcement officers to violate the rights of a citizen by
subjecting him to excessive force violated the Fourth Amendment.
He argues that no reasonable officer could have believed that
participation in such a conspiracy was lawful.
The court finds that the motion must be GRANTED. There is no
evidence that Deputy Meza violated Mendez's constitutional rights
or that he conspired with Deputy Russell or anyone else to
violate Mendez's constitutional rights.
Mendez asserts that Deputy Meza conspired with Deputy Russell
to violate Mendez's right to be free from excessive force and
unlawful search and seizure. The constitutional right at issue is
the Fourth Amendment right to be "secure . . . against
unreasonable . . . seizures." U.S. Const. amend. IV. A free
citizen's claim that law enforcement officials used excessive
force in the course of making an arrest, an investigatory stop,
or other "seizure" of his person" is properly analyzed under the Fourth Amendment's "objective
reasonableness" standard. Graham, 490 U.S. at 394-95.
In this case, however, there is no evidence that Deputy Meza
used excessive force on Mendez, as it is undisputed that there
was no physical or even face-to-face contact between the two of
them. Thus, the only claim Mendez can assert against Deputy Meza
is the claim that Deputy Meza and Deputy Russell conspired to
violate his Fourth Amendment rights.
To establish Deputy Meza's liability for a conspiracy, Mendez
must "demonstrate the existence of an agreement or meeting of the
minds to violate constitutional rights." Mendocino Environmental
Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999)
(citations and quotations omitted). Deputies Meza and Russell
must have, "by some concerted action, intended to accomplish some
unlawful objective for the purpose of harming another which
results in damage." Id. (citations and quotations omitted). The
agreement need not be overt, and may be based on circumstantial
evidence.*fn2 So long as there is a possibility that a jury
can infer from the circumstances that Deputies Meza and Russell
had a "meeting of the minds" and reached an understanding to
further the objectives of the conspiracy, the question whether
they were involved in an unlawful conspiracy to violate Mendez's
constitutional rights should be resolved by a jury. Id.
Here, however, there is no evidence even circumstantial
evidence of a conspiracy between Deputy Meza and Deputy
Russell. The facts cited by Mendez do not provide circumstantial
evidence of a "meeting of the minds," and there is nothing from
which a jury could infer that Deputy Meza and Deputy Russell
intended to accomplish some concerted action with the purpose of
injuring Mendez. Because Mendez has failed to state specific
facts supporting the existence of the claimed conspiracy,
Burns, 883 F.2d at 821, the motion for summary judgment on the
§ 1983 claims must be GRANTED.
Because the court finds that there is no constitutional
violation, it is unnecessary to reach the question of qualified immunity. See Saucier v.
Katz, 533 U.S. 194, 201 (2001) (district court must first
determine, based on facts taken in light most favorable to party
asserting injury, whether officer's alleged conduct violates a
constitutional right; if no constitutional violation can be
established on facts alleged, there is no necessity for further
inquiries concerning qualified immunity).
2. State law claims
a. claims under Civil Code § 52 and § 52.1
Mendez asserts claims under California Civil Code § 52 and 52.1
against all defendants. The claim against Deputy Meza is based on
the allegation that he left a threatening, intimidating voicemail
on Mendez's answering machine on October 5, 2002. Deputy Meza
acknowledges that he left the message, but asserts that he did it
in the context of trying to apprehend Mendez for committing
domestic violence, and also contends that there was probable
cause to arrest Mendez for domestic violence. He argues that he
is entitled to summary judgment on these claims.
California Civil Code § 51 provides that all persons within the
jurisdiction of California have the right to be free from
violence, or intimidation by threats of violence, committed
against their persons or property because of their race, color,
religion, ancestry, national origin, political affiliation, sex,
sexual orientation, disability, or position in a labor dispute,
or because another person perceives them to have these
characteristics. Cal. Civ. Code § 51(b). California Civil Code §
52 provides that anyone who discriminates on the basis of the
characteristics listed in § 51, or denies any right listed in §
51, will be liable for damages to the aggrieved person. Cal. Civ.
Code § 52(a).
Deputy Meza argues that summary judgment must be granted on the
§ 52 claim because there is no evidence that the phone message
was motivated by animus based on Mendez's gender, race, national
origin, or any other characteristic referred to in § 51. He
contends that there is no evidence that he left the message based
on any intent to discriminate for any reason, but rather that the
purpose was to convey that he intended to arrest Mendez for his
violent conduct toward Arteaga. In opposition, Mendez asserts that the sole relevance of § 52
to this case is as the "damage component" to the liability set
forth in § 52.1. (Section 52.1(b) provides that a person
aggrieved by the violation of their rights under § 52.1 may be
entitled to damages, which include but are not limited to, those
enumerated in § 52.) Mendez maintains that notwithstanding that
he has no claim under § 52, summary judgment should not be
granted because he is entitled to the measure of damages set
forth in § 52.
California Civil Code § 52.1 provides that anyone whose
exercise or enjoyment of rights secured by the Constitution of
laws of the U.S. "has been interfered with or attempted to be
interfered with" by any person who engages in "threats,
intimidation, or coercion, or attempts to interfere by threats,
intimidation, or coercion" may file a civil action for damages.
Cal. Civil Code § 52.1(a), (b).
Section 52.1 requires an attempted or completed act of
interference with a legal right, accompanied by a form of
coercion. Jones v. Kmart Corp., 17 Cal. 4th 329, 331-34 (1998).
Speech alone is not sufficient to support an action brought
pursuant to § 52.1(a) or (b), except upon a showing that the
speech itself threatens violence against a specific person or
group of persons; the person or group of persons against whom the
threat is reasonably directed fears that, because of the speech,
violence will be committed against them or their property; and
that the person threatening violence has the apparent ability to
carry out the threat. Cal. Civ. Code § 52.1(j). Section 52.1 does
not require a showing that the defendant acted with
discriminatory animus or intent. Venegas v. County of Los
Angeles, 32 Cal. 4th 820, 842-50 (2004).
Deputy Meza argues that summary judgment must be granted on
this claim because his conduct toward Mendez ("a mere verbal
threat") involved no violation of Mendez's constitutional rights,
and because Mendez has provided no evidence that Deputy Meza
interfered with his constitutional rights or with any other legal
Deputy Meza also contends that this claim must be dismissed
because Mendez cannot demonstrate that the voicemail message made
him fearful that Deputy Meza would commit violence against him.
Mendez testified in his deposition that he could not recall the
substance of the message. His mother, Deborah Mendez, testified in her
deposition that she never attempted to contact the Alameda County
Sheriff's Office to complain about the voicemail message, and
that she did not believe that Mendez himself ever filed a
complaint with the Sheriff's Office regarding the message. Deputy
Meza contends that the fact that Mendez could not even remember
the substance of the message and the fact that neither he nor his
mother filed any sort of complaint about it indicates that Mendez
had no real fear of Deputy Meza's words.
In opposition, Mendez argues that he is not claiming that
Deputy Meza's speech alone was the cause of the violation of his
constitutional rights. He claims that the voicemail message
constitutes "circumstantial evidence" of the conspiracy to
violate his constitutional rights.
The court finds that the motion must be GRANTED. In arguing
that Civil Code § 52 provides the "damage component" for the
claim under § 52.1, while simultaneously failing to provide any
evidence of any discriminatory action taken against him, Mendez
essentially concedes that he has no claim under § 52.
With regard to the claim under § 52.1, to the extent that
Mendez alleges a violation of his constitutional rights, the
claim must be dismissed because Mendez has not asserted any
constitutional claim under § 52.1 that is distinct from the
claims under § 1983.
Section 52.1 provides a cause of action for persons prevented
from exercising constitutional or statutory rights. Mendez has
not provided evidence showing "an attempted or completed act of
interference with a legal right, accompanied by a form of
coercion." See Jones, 17 Cal. 4th at 334. To the extent that
Mendez alleges solely a verbal threat, without an act or an
attempted act of interference with legal rights, he does not
argue, and provides no evidence i.e., no declaration, no
deposition testimony showing that he reasonably feared that,
because of the verbal threat, violence would be committed against
him or his property.
Moreover, the alleged "threat" is not actionable under § 52.1,
even had Mendez established that he reasonably feared that
violence would be committed against him. Deputy Meza made two
"threats" in the phone message the threat to arrest Mendez as
soon as Mendez stepped out his door, and the threat to "kick your door
down and take you out" if Mendez made any more threats to
Arteaga. Deputy Meza had probable cause to arrest Mendez, and so
the "threat" to arrest him cannot be unlawful. The "threat" to
"take you out" was conditional or hypothetical if Mendez
threatened Arteaga again, then Deputy Meza would use violence
against Mendez. This is not an actual, present, "threat."
b. negligence claim
Mendez alleges a claim of negligence against all defendants,
asserting that the defendants, individually and/or while acting
in concert with one another, owed him a duty to exercise
reasonable care to avoid injury during the alleged incident, and
that they negligently breached such duty of care, resulting in
To establish a claim of negligence, a plaintiff must show that
the defendant had a duty to use due care, that the defendant
breached that duty, and that the breach was the proximate or
legal cause of the resulting injury. Munoz v. City of Union
City, 120 Cal. App. 4th 1077, 1093 (2004). To demonstrate
causation, the plaintiff must show that the defendant's act or
omission was a "substantial factor" in bringing about the injury.
Castaneda v. Olsher, 132 Cal. App. 4th 627, 643 (2005). Because
Mendez alleges that defendants conspired together to commit
negligence, he must also prove the existence of a conspiracy.
Deputy Meza argues that summary judgment must be granted on the
negligence claim because there is no evidence that he committed
any act or omitted to do anything that caused Mendez's injuries.
Deputy Meza also asserts that summary judgment should be granted
on this claim because there is no evidence of any conspiracy or
meeting of the minds between himself and Deputy Russell.
In opposition, Mendez argues that the evidence and inferences
viewed in the light most favorable to him as the non-moving party
support the conclusion that Deputy Meza engaged in a civil
conspiracy to physically harm him and that Deputy Russell
committed an overt act (beating Mendez) to further the goals of
The court finds that the motion must be GRANTED. Mendez
provides no evidence that Deputy Meza committed any act or
omitted to do anything that caused Mendez's injuries. Moreover, the law does not recognize a conspiracy to commit
negligence. A conspiracy by definition requires intentional
agreement to commit or achieve a specific outcome. Choate v.
County of Orange, 86 Cal. App. 4th 312, 333 (2000). Conspiracy
requires an intentional act, though it is not a separate tort but
rather a means of affixing liability on all persons who have
agreed to a common design to commit a wrong. Id.
It is a non sequitur to speak of parties intentionally agreeing
to fail to exercise due care. See Koehler v. Pulvers,
606 F.Supp. 164, 173 n. 10 (S.D. Cal. 1985) (law does not impose
liability for conspiring to commit negligence because act of
conspiracy requires two or more persons agreeing to commit
intentionally wrongful act); see also Sonnenreich v. Philip
Morris Inc., 929 F.Supp. 416, 419-420 (S.D. Fla. 1996)
(impossible to conspire to act negligently); Rogers v. Furlow,
699 F.Supp. 672, 675 (N.D. Ill. 1988) (claim of conspiracy to
commit negligence is "paradox").
c. battery claim
Mendez alleges a claim of battery against all defendants,
asserting that the defendants, acting together pursuant to a
conspiracy, caused him to be subjected to a non-consensual,
non-privileged, offensive touching of his body.
A battery is "any intentional, unlawful and harmful contact by
one person with the person of another. . . . a `contact' is
`unlawful' if it is unconsented to." Piedra v. Dugan,
123 Cal. App. 4th 1483, 1495 (2004) (citation omitted). When a battery
claim is brought against a police officer, the plaintiff has the
burden of showing unreasonable force as an element of the claim.
Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272-74
Deputy Meza argues that summary judgment must be granted as to
this claim because there is no evidence that he ever had any
physical contact with Mendez. The evidence shows that on October
5, 2002, Deputy Meza was never able to interact with Mendez in
person, and that he had no further contact with Mendez. Deputy
Meza also asserts that there is no evidence that he conspired
with Deputy Russell or anyone else to harm Mendez.
In opposition, Mendez argues (as with the negligence claim)
that the evidence and inferences viewed in the light most
favorable to him as the non-moving party support the conclusion that Deputy Meza engaged in a civil conspiracy to
physically harm him and that Deputy Russell committed an overt
act (beating Mendez) to further the goals of the conspiracy.
The court finds that the motion must be GRANTED. There is no
evidence that Deputy Meza committed a battery on Mendez, and the
conspiracy claim is unsupported by any evidence, as stated above.
d. governmental immunities
Deputy Meza also argues that the state law claims are barred by
the immunities contained in California Government Code §§ 820.2,
820.4, and 820.8. Because summary judgment must be granted on the
state law claims, the court does not address the arguments
regarding the governmental immunities.
3. Plaintiff's objections to evidence and motion to strike
With his opposition to the motion for summary judgment, Mendez
filed objections to some of the evidence submitted by Deputy
Meza. In the reply, Deputy Meza argues that this additional
submission violates the local rules of this court, because it (8
pages) added to the opposition brief (25 pages) equals 33 pages,
and Mendez did not obtain leave of court to file an oversize
brief. See Civ. L.R. 7-4(b) (opposition brief not to exceed 25
pages). Meza also asserts that he should not have to respond to
these objections in his reply brief, and should be given the
opportunity to frame an adequate response.
While it is true that a brief filed in support of a motion or
the opposition to a motion should not exceed 25 pages without
leave of court, the court does routinely consider objections to
evidence filed in separate documents. Moreover, it does not
appear that Deputy Meza was prejudiced by using part of his reply
brief to respond to the objections, as he used only 11 of the 15
pages to which he was entitled under the local rules.
With regard to the specific objections, the court rules as
a. Mendez moves to strike the Declaration of Deputy Jon
Rudolph, in which the declarant provides information regarding
Mendez's criminal history. Mendez argues that this evidence is
not relevant to the subject of the present motion, that Deputy
Rudolph has no personal knowledge of the information in the
criminal history report, that the evidence constitutes character evidence that is highly prejudicial and is
not admissible under Federal Rule of Evidence 404(a), and that
evidence of uncharged crimes is not admissible.
Deputy Meza responds that the Rudolph Declaration was offered
for the sole purpose of authenticating the attached business
records of the Alameda County Sheriff's Office. He contends that
the number and frequency of Mendez's prior encounters with the
police are relevant to disprove that the events alleged in the
complaint were not the result of a conspiracy to violate his
civil rights. He also asserts that the criminal history records
are not offered as character evidence.
The court did not consider this evidence in ruling on the
motion for summary judgment. The objection is OVERRULED.
b. Mendez objects to ¶ 2 of the Declaration of Deputy Derek
Meza, arguing that it consists of a report of out-of-court
statements made to him by Sgt. Murray, offered for the truth of
the matter asserted, and therefore constitutes inadmissible
In ¶ 2 of his declaration, Deputy Meza states that Sgt. Murray
told him there was probable cause to arrest Mendez, and asked him
to contact Mendez and arrest him, and to go to Arteaga's house if
he could not locate Mendez. Deputy Meza contends that these
hearsay statements are admissible under the state-of-mind
exception to the hearsay rule, as set forth in Federal Rule of
This objection is OVERRULED. An out-of-court statement is
hearsay only if it is offered for its truth. Fed.R.Evid.
801(c). The statements offered by Deputy Meza do not assert
facts. They are orders or instructions, which by their nature are
neither "true" nor "false," and thus cannot be offered to prove
the truth of something asserted. See United States v.
Shepherd, 739 F.2d 510, 514 (10th Cir. 1984); United States v.
Keane, 522 F.2d 534, 558 (7th Cir. 1975), overruled on other
grounds by McNally v. United States, 483 U.S. 350 (1987).
Moreover, to the extent that the statements may have been
offered as circumstantial evidence of Deputy Meza's belief that
there was probable cause to arrest Mendez, they are admissible
under the "state of mind" exception. Under Federal Rule of
Evidence 803(3), courts admit "[a] statement of the declarant's
then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), but not including a
statement of memory or belief to prove the fact remembered or
believed." The statement by Sgt. Murray falls within this
exception to show Deputy Meza's belief that there was probable
cause to arrest Mendez.
c. Mendez objects to what he terms the mischaracterization of
his deposition testimony, referring to testimony that Deputy Meza
had done nothing to cause his injuries. Mendez claims that it is
obvious from the testimony that defendant's counsel was asking
him whether he was contending that Deputy Meza had caused him
injuries related to this lawsuit on other occasions when Mendez
had had actual contact with Deputy Meza.
Deputy Meza does not respond to this objection. The objection
is OVERRULED. The court finds both the question and the response
to be somewhat ambiguous, and consequently did not rely on this
evidence in ruling on the motion. Moreover, Mendez's testimony is
not essential to a finding that Deputy Meza had no physical
contact with Mendez, as Mendez concedes that fact in his
opposition to the motion.
d. Mendez objects to the inclusion of a reference in his
deposition testimony to prior contacts with the Hayward Police
Department, for the same reasons that he objects to the criminal
history information in the Rudolph Declaration. Deputy Meza
contends that this objection should be overruled for the same
reason as the objection to the Rudolph Declaration. This
objection is OVERRULED. The court did not consider this evidence
in ruling on the motion.
e. Mendez objects to the admission of what he claims are
hearsay statements in the Alameda County Sheriff's Office report
prepared by Deputy Russell on October 5, 2002.
Deputy Meza contends that this objection should be overruled
because Mendez has not identified the specific statements that he
contends are hearsay. Deputy Meza also asserts that the
statements in the report are admissible under the present sense
impression exception, state-of-mind exception, business records
exception, and public records exception to the hearsay rule. The business records exception to the hearsay rule, see
Fed.R.Evid. 803(6), applies to records kept in the course of a
regularly conducted business activity. Police reports are not
considered "business records." They fall in the category of
"public records and reports." The public records exception to the
hearsay rule, see Fed.R.Evid. 803(8), applies to records and
statements of public agencies, setting forth "matters observed
pursuant to duty imposed by law as to which matters there was a
duty to report," but does not include "in criminal cases
matters observed by police officers and other law enforcement
personnel." However, the public records exception does apply in
civil actions, with regard to "factual findings resulting from an
investigation made pursuant to authority grated by law, unless
the sources of information or other circumstances indicate lack
The question whether one can use a police report as evidence
depends in part on what it is being offered to prove. Here,
Deputy Meza cites to the report three times in the introductory
section of the brief that describes the events of October 5, 2002
to support the statement that Deputies Russell and Felix
responded to a complaint from Arteaga on October 5, 2002, at
12:55 a.m.; to support the statement that Arteaga complained that
Mendez arrived at her house with a gun and committed domestic
violence; and to support the statement that Deputy Russell
prepared an incident report for the domestic violence incident.
None of these facts is an essential part of Deputy Meza's
argument that he used no unlawful force on Mendez, and that he
did not enter into a conspiracy with Russell to violate Mendez's
constitutional rights. Rather, the report is simply used to
provide background information.
With regard to the objection, however, the court finds that it
must be OVERRULED, because Mendez has not identified which
specific statements are hearsay.
f. Mendez objects to the admission of the excerpts from the
deposition of Nancy Arteaga on grounds of hearsay and relevance,
and also contends that the statements constitute inadmissible
Deputy Meza contends that Arteaga's testimony and statements
describe her personal observations of Mendez's conduct during an
incident that prompted her to summon assistance from the police.
He asserts that her observations are relevant to the question
whether the Alameda County Sheriff's Deputies had legitimate law enforcement
reasons to respond to the scene, to have physical contact with
Mendez, or to effectuate his arrest.
This objection is OVERRULED. It is not hearsay, as Arteaga was
simply asked to confirm that the signed statement from October 5,
2002, was in fact signed by her at the scene; to confirm that she
was four months pregnant at the time; and to confirm that Mendez
came to her residence with a gun and that he threatened her
father with the gun. This is testimony regarding Arteaga's
observations of Mendez's conduct. It is not "character evidence."
g. Mendez objects to the admission of the Arteaga statement
given to the Sheriff's Deputies on October 5, 2002, on grounds of
hearsay, and also contends that the statements constitute
inadmissible character evidence. In addition, Mendez claims that
the statements regarding what allegedly occurred in the
"underlying domestic dispute" are not relevant to the issues in
Deputy Meza's summary judgment motion.
Deputy Meza's response is the same as for the Arteaga
This objection is OVERRULED, as Mendez has not identified which
portions of the statement are objectionable. Arteaga
authenticated the statement in her deposition, in the excerpt
that is referenced above, and Mendez has not met his burden of
proving that any particular portion of the statement is
inadmissible hearsay. The statement is arguably not relevant to
the issues in Meza's summary judgment motion, but it is being
offered as background information.
h. Mendez objects to the admission of three excerpts from the
deposition of his mother, Deborah Mendez, on grounds of hearsay
and relevance, and also contends that the statements contain
inadmissible character evidence. First, he objects to admission
of testimony regarding what Deborah Mendez knew about the
circumstances leading to Arteaga's decision to call the police on
October 5, 2002. Second, he objects to the admission of testimony
regarding whether Deborah Mendez or her son ever filed any
complaints with the Alameda County Sheriff's Office regarding the
incident of October 5, 2002. Third, he objects to the admission
of testimony regarding whether Deborah Mendez knew Nancy Arteaga's parents, whether they had ever told her
anything about an incident in October 2002 when Mendez went to
the Arteaga's residence with a handgun, or whether she knew if
Mendez owned a handgun.
Deputy Meza contends that these objections should be overruled.
With regard to the first and third excerpts, he asserts that he
has not even cited to those excerpts in the motion. With regard
to the second excerpt, he argues that the statements are
admissible because Ms. Mendez was testifying about facts of which
she had personal knowledge.
This objection is OVERRULED. The court has not relied on the
first or third excerpts in ruling on the motion. With regard to
the second excerpt, Deborah Mendez testified, based on her
personal knowledge, that she never filed any complaints about
Meza's behavior, and that to her knowledge, Mendez never filed
any complaints. These statements are not hearsay and are not
being offered as character evidence.
In accordance with the foregoing, the court GRANTS defendant
Derek Meza's motion for summary judgment.
IT IS SO ORDERED.
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