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Perez v. City of Placerville

September 9, 2008

DENA PEREZ, AN INDIVIDUAL, PLAINTIFF,
v.
CITY OF PLACERVILLE, GEORGE NEILSEN, AND CHRISTIAN BEYER, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on defendants City of Placerville (the "City") and Christian Beyer's ("Beyer") (collectively, "defendants")*fn1 motion for summary judgment. By the motion, defendants seek adjudication in their favor on plaintiff's complaint against them, alleging primarily civil rights violations by defendants.*fn2

On May 13, 2006, Placerville police officers went to the home of plaintiff Dena Perez ("plaintiff") intending to arrest a parolee, Gary Masse ("Masse"), who they believed lived at the home. In the process of attempting to secure the location, defendant Officer Beyer shot and killed plaintiff's dog. Officer Byer maintains the killing was in defense of his fellow officer and police canine who were being attacked by the dog. Plaintiff did not witness the shooting as she arrived at her home after the incident. Ultimately, the officers did not find Masse at the residence because he was in custody at a correctional facility in Tracy, California.

As a result of the incident, plaintiff brings this action against the City and Beyer, alleging claims for (1) unlawful, warrantless seizure of plaintiff's residence in violation of the Fourth and Fourteenth Amendments; (2) unlawful, warrantless entry and search of plaintiff's residence in violation of the Fourth Amendment; (3) unlawful search and seizure of plaintiff in violation of the Fourth Amendment; (4) unlawful seizure of personalty in violation of the Fourth Amendment; (5) excessive force on persons in violation of the Fourth Amendment;*fn3 (6) trespass to real property; (7) wrongful eviction; (8) trespass to personal property; (9) negligence; (10) intentional infliction of emotional distress; (11) false arrest/false imprisonment; (12) trespass to chattels/personalty; (13) conversion; and (14) violation of California Civil Code § 52.1.*fn4

For the reasons set forth below, the court GRANTS in part and DENIES in part defendants' motion. The court grants the motion with respect to all claims, except plaintiff's claims for unlawful search and seizure of her residence in violation of the Fourth Amendment (first and second claims for relief) and trespass to real property (sixth claim for relief). With respect to those claims, triable issues of fact remain as to whether defendants had probable cause to believe that parolee Masse lived at plaintiff's residence, thereby providing legal grounds to enter the premises without a warrant.

BACKGROUND*fn5

On May 13, 2006, the Placerville Police Department ("PPD") received a "CLETS" document*fn6 from the Amador County Sheriff's Department, which consisted of an Abstract of Warrant regarding a suspect named, Gary Joseph Masse. (RUF ¶ 12.) The Abstract of Warrant indicated Masse was not in custody. (RUF ¶ 14.)

Based on prior contact with Masse,*fn7 PPD officers believed Masse was plaintiff's boyfriend and resided with her at plaintiff's residence located at 2335 Greenwing Lane, Placerville, California. (RUF ¶s 5, 8, 17, 58.) As a condition of his parole, Masse had also previously given that address to law enforcement as his legal residence. (RUF ¶ 4.) Masse, however, did not own the residence, which was owned solely by plaintiff. (Pl.'s Add'l Disputed Facts ["ADF"], ¶ 69.)*fn8 The officers were also aware that Masse was a parolee and had waived his rights with regard to searches and seizures of his person, property and residence. (RUF ¶ 57.) The officers additionally knew that Masse had attempted to evade arrest on a prior occasion at the 2335 Greenwing Lane residence. (RUF ¶ 18.)

PPD Sergeant Cannon ("Cannon") confirmed that the warrant was a valid, active arrest warrant. (RUF ¶ 16.) No one at the PPD contacted Masse's parole officer to request any information about Masse. (ADF ¶ 64.) Thereafter, Cannon and PPD officers Christopher Hefner ("Hefner"), Jason Alger ("Alger"), Beyer and police canine, Rico, traveled to plaintiff's residence intending to arrest Masse. (RUF ¶ 19.) The officers did not have a search warrant for the premises. (ADF ¶ 70.) Upon arrival at the residence, Cannon and Hefner went to the front door. (RUF ¶ 21.) Alger and Beyer went to the right of the residence intending to gain entry to the backyard in order to secure the rear of the residence should Masse attempt to flee as he had done in the past. (RUF ¶ 21.)

To ascertain whether a dog was on the premises, Alger, who had police canine Rico with him, made sounds to elicit a response from a dog. (RUF ¶ 27.)*fn9 There was no response. (RUF ¶ 27.) Alger looked over the fence and did not see a dog in the backyard. (RUF ¶ 26.) He then cracked open the gate to the backyard. (RUF ¶ 29.) The head of a Rottweiler immediately pushed through the gate and attacked Alger and canine Rico. (RUF ¶s 30, 31.) The Rottweiler was plaintiff's dog, Harley. (RUF ¶ 30.) Beyer used pepper spray on both dogs but there was no reaction. (RUF ¶ 33.) Beyer then shot Harley twice but there was no response. (RUF ¶ 34.) He then shot Harley a third time, at which point the dog walked away. (RUF ¶ 35.) The incident occurred in less than one minute and it took place on the street side of the fence. (RUF ¶s 36, 37.)*fn10 The officers then entered the backyard to secure the rear of the premises, believing their position had been jeopardized. (RUF ¶ 38.)

Plaintiff arrived at the residence minutes after the shooting took place. (RUF ¶s 22, 41.) She was advised by the officers that Harley had been shot. (RUF ¶ 43.) Plaintiff told the officers that Masse was incarcerated in a correctional facility in Tracy, California. (RUF ¶ 42.) No officer searched plaintiff. (RUF ¶ 51.)

After briefly speaking with plaintiff, Cannon radioed dispatch requesting that they locate an emergency veterinarian's office in the area. (RUF ¶ 44.) Alger assisted plaintiff in getting Harley into the back of a police vehicle. (RUF ¶ 45.) Cannon then drove plaintiff and Harley to a veterinarian's office in Shingle Springs, California. (RUF ¶ 46.) Cannon left plaintiff and Harley at the office, after confirming that there was a veterinarian present to care for the dog. (RUF ¶ 48.) Harley subsequently died. (RUF ¶ 49.)

STANDARD

The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.

Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire & Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e)

ANALYSIS

A. Unlawful Search and Seizure of Plaintiff's Residence (1st,*fn11 2nd and 6th Claims for Relief)*fn12

Defendants move to dismiss plaintiff's claims relating to the warrantless entry onto her property*fn13 on the ground that Masse's parole status authorized a search of his residence, which defendants believed was plaintiff's home located at 2335 Greenwing Lane.*fn14 Plaintiff does not dispute that Masse was a parolee at the time of the incident, and that pursuant to his parole status, Masse waived his Fourth Amendment rights such that officers were legally entitled to search his residence without a warrant. See Cal. Penal Code § 3067. However, plaintiff disputes that her home on Greenwing Lane was Masse's residence and asserts that defendants did not have the requisite probable cause to believe Masse resided in her home.

Before conducting a warrantless search pursuant to a parolee's parole condition, law enforcement officers must have "probable cause to believe that the parolee is a resident of the house to be searched." Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir. 2005).*fn15 The Ninth Circuit has applied a "relatively stringent standard" in determining what constitutes probable cause that a residence belongs to a person on supervised release:

[T]he facts known to the officers at the time of the search must have been sufficient to support a belief, in a 'man of reasonable caution,' that [the ...


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