IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
July 26, 2011
DEBORAH FALCONER, PLAINTIFF AND APPELLANT,
CITY OF WEST SACRAMENTO ET AL., DEFENDANTS AND RESPONDENTS.
(Super. Ct. No. CV PO 07-2231)
The opinion of the court was delivered by: Butz , J.
Falconer v. City of West Sacramento CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A police officer investigating a domestic dispute arrested plaintiff Deborah Falconer and a jury thereafter convicted her of misdemeanor resisting or obstructing a peace officer. (Pen. Code, § 148, subd. (a)(1) (hereafter § 148(a)(1)).)
Falconer then brought this civil action against the City of West Sacramento and arresting Officer Ken Fellows, in which she claims the arresting officer used excessive force against her and sought damages under legal theories of assault and battery, civil rights violations under the Tom Bane Civil Rights Act (Civ. Code, § 52.1), and negligence.*fn1
The trial court granted defendants' motion for summary judgment, on the ground Falconer failed to show her claims for damages in the instant action did not challenge the validity of her resisting or obstructing an officer conviction (section 148(a)(1) conviction).
Falconer argues on appeal that her section 148(a)(1) conviction should not bar her civil action for damages because she seeks damages only for the officer's conduct "before and after the arrest." We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We know little of what events gave rise to Falconer's section 148(a)(1) conviction. The record on appeal in this matter includes only the information and the jury's verdict, which defendants submitted in support of their summary judgment motion.
Falconer's Second Amended Complaint in the instant action alleges that on or about August 31, 2006, defendants "assaulted and battered [her] by the following threats, actions and conduct, including but not limited to using unreasonable physical force against [her], by throwing her against a car, by locking [her] in a police car with handcuffs extra tight on her wrists for almost an hour in the [s]weltering heat of summer, with the windows rolled up and without air conditioning and without providing her with her greatly needed medication, and by threaten[ing] her and her son with being beaten with a 'billy club' and with more violence, and then drove her to jail in Woodland with a drunk convict who the Defendants placed into the back seat of the patrol car with [her], subjecting her to more violence and trauma . . . ."
Defendants moved for summary judgment (or, alternatively, for summary adjudication). They argued Falconer's section 148(a)(1) conviction precludes her from bringing any cause of action based on allegations that unlawful force was used by Officer Fellows to arrest her, because the lawfulness of her arrest is an essential element of a violation of Penal Code section 148, and that element necessarily includes the presumption that the force used to effectuate it was not excessive.
Falconer opposed the motion, asserting that her action is not barred as a matter of law because it "challenges neither the lawfulness of the initial arrest attempt, nor the unlawfulness of [her] willful obstruction" but, rather, only "challenge[s] the officer's actions BEFORE and AFTER the lawful arrest."
In support of her contention that there exist triable issues of material fact as to Officer Fellows's actions, Falconer submitted her own declaration in opposition averring that:
"1. On August 31, 2006, while investigating a family dispute at [my] residence in West Sacramento, the Defendant, Officer Ken Fellows, threw me against his car[,] assaulted, battered, and threatened me. I never touched him, or [did] anything that I felt was obstructing his work, or constituted resisting arrest, or that justified his angry and vicious conduct toward me.
"2. After he placed me under arrest he locked the handcuffs so tight it severely hurt my wrists, placed me in the back seat of his patrol car for what seemed approximately an hour in the sweltering August summer heat, with the windows rolled up and without air conditioning. I have asthma and asked for my needed medication and he refused.
"3. He threatened me and my son that he would 'beat the shit' out of me and my son with a 'billy club.'
"4. When he then drove me to jail in Woodland, he arrested a drunk man and placed him in the back seat with me and he assaulted me causing me more trauma.
"5. The actions and conduct of the Defendant were egregious, malicious, and intentional and wholly without my consent and occurred both before he arrested me and after he arrested me."
Defendants objected to Falconer's declaration; virtually all of their objections were overruled.
The trial court granted defendants' motion for summary judgment, ruling that they "met their burden of persuasion by proving that plaintiff had an undisturbed conviction under Penal Code section 148[, subdivision] (a)(1). The burden then shifted to plaintiff to provide evidence of excessive force that would not necessarily imply the invalidity of her conviction. Plaintiff failed to provide any evidence that would not necessarily imply the invalidity of her conviction. Accordingly, defendants are entitled to judgment as a matter of law." Judgment in defendants' favor was entered thereafter.
I. Standard of Review
We review the summary judgment de novo to determine if defendants were entitled to judgment as a matter of law. (Leep v. American Ship Management (2005) 126 Cal.App.4th 1028, 1036; Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1407-1408 (Susag).)
II. Applicable Law
Our analysis begins with the leading United States Supreme Court case, Heck v. Humphrey (1994) 512 U.S. 477 [129 L.Ed.2d 383] (Heck), and the recent California Supreme Court case applying Heck, Yount v. City of Sacramento (2008) 43 Cal.4th 885 (Yount).
In Heck, the United States Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a [section] 1983[*fn2 ] plaintiff [alleging a federal civil rights violation] must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus [citation]. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under [section] 1983." (Heck, supra, 512 U.S. at pp. 486-487 [129 L.Ed.2d at p. 394], fn. omitted.)
The test is "whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed . . . . But if . . . the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed . . . ." (Heck, supra, 512 U.S. at p. 487 [129 L.Ed.2d at p. 394], fn. omitted.)
Heck's reasoning has been held to apply with equal force to state law tort claims arising from officers' alleged use of excessive force during arrest. (Yount, supra, 43 Cal.4th at p. 902; Susag, supra, 94 Cal.App.4th at pp. 1405-1406.)
In Yount, our state Supreme Court considered whether, under Heck, a conviction for resisting an officer barred a subsequent section 1983 claim alleging the arresting officers unlawfully used deadly force. Yount had been arrested, handcuffed, and placed in a patrol car only after considerable and escalating resistance. (Yount, supra, 43 Cal.4th at pp. 889-891.) One officer, Officer Shrum decided to use his Taser on Yount, but Shrum mistakenly pulled out his gun instead of his Taser and shot Yount. Later, Yount pleaded no contest to one count of resisting an officer. (Id. at p. 891.) He then sued Shrum under section 1983, alleging excessive force. (Yount, at pp. 891-892.)
The California Supreme Court held that "[Y]ount's claims are barred to the extent they allege that Officer Shrum was not entitled to use force at all in this incident. Yount's resistance justified the officers' use of reasonable force in response. [Citation.] However, as defendants concede, the use of deadly force was not reasonable in this instance. Yount's conviction for violating Penal Code section 148, subdivision (a)(1) did not in itself justify the use of deadly force, either. Accordingly, Yount's civil claims are not barred to the extent they challenge Officer Shrum's use of deadly force." (Yount, supra, 43 Cal.4th at p. 889.)
The defendants in Yount argued that Heck should bar Yount's action because "the shooting was part of a continuous transaction arising from Yount's resistance[.]" (Yount, supra, 43 Cal.4th at p. 899.) In rejecting that argument, the California Supreme Court opined that "to eliminate Yount's claims in their entirety would also severely diminish the protections available to those subject to arrest. '[I]t would imply that once a person resists law enforcement, he has invited the police to inflict any reaction or retribution they choose, while forfeiting the right to sue for damages. Put another way, police subduing a suspect could use as much force as they wanted--and be shielded from accountability under civil law--as long as the prosecutor could get the plaintiff convicted on a charge of resisting.' [Citation.] To the extent Yount does not deny that he resisted the officers (or that the officers had the right to respond with reasonable force), he poses no challenge to his conviction, and, to that extent, his section 1983 claim for damages arising from Officer Shrum's accidental use of deadly force is not barred by Heck." (Id. at p. 900.)
III. The Trial Court Did Not Err in Granting Summary Judgment
In moving for summary judgment, defendants met their initial burden of establishing that Falconer's claims raised in the operative complaint--all of which are based on her allegation of excessive force--are barred under Heck. (Code Civ. Proc., § 437c, subd. (p)(2); Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120, 125.) Defendants supported their motion with evidence establishing that Falconer's injuries, if any, were sustained "[a]s a result of her contact with Officer Fellows" the day she was arrested for (among other crimes) resisting or obstructing a peace officer in violation of Penal Code section 148(a)(1), and that she was thereafter convicted of that crime by a jury.
In California, the crime of resisting an officer is committed by "willfully resist[ing], delay[ing], or obstruct[ing] any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . ." (§ 148(a)(1).) It is well established "'that when a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed.'" (People v. Cruz (2008) 44 Cal.4th 636, 673.) Hence, "the lawfulness of an arrest is an essential element of the offense of resisting or obstructing a peace officer. [Citation.] . . . '[E]xcessive force by a police officer . . . is not within the performance of the officer's duty.'" (Susag, supra, 94 Cal.App.4th at p. 1409.)
Defendants thus established that Falconer's claims are likely encompassed by the bar articulated in Heck: If a jury found her guilty of resisting Officer Fellows, it necessarily found he was acting lawfully and did not use excessive force when he arrested her. Her prevailing on a civil claim of excessive force would therefore imply the invalidity of her conviction. (See Heck, supra, 512 U.S. at p. 487 [129 L.Ed.2d at p. 394]; Susag, supra, 94 Cal.App.4th at pp. 1405-1406.) The burden therefore shifted to Falconer to demonstrate the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc., supra, 110 Cal.App.4th at p. 125.)
Falconer concedes her conviction for resisting or obstructing an officer bars her from asserting that the arrest itself was accomplished by means of excessive or unreasonable force. To salvage her complaint she contends it is based only upon Officer Fellows's alleged use of unreasonable force before and after the arrest.
Falconer's declaration fails to identify exactly what force she alleges Officer Fellows applied prearrest, but we presume from her complaint and declaration that she contends she was "thrown" onto a car before the arrest.
We disagree that Falconer may maintain a claim based on such alleged prearrest conduct. Unlike the circumstances occasioned by a plea bargain, in which multiple possible factual bases might suggest that some occurred at a time distinct from the arrest, when a jury has found the defendant guilty of resisting an officer, its verdict "necessarily determines the lawfulness of the officers' actions throughout the whole course of the defendant's conduct, and any action alleging the use of excessive force would 'necessarily imply the invalidity of his conviction.'" (Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, 699, fn. 5 [when a § 1983 plaintiff has pleaded guilty or no contest, "it is not necessarily the case that the factual basis for his conviction included the whole course of his conduct"]; cf. Susag, supra, 94 Cal.App.4th at pp. 1409-1410.) Because a jury found Falconer guilty of resisting an officer, it necessarily found that Officer Fellows acted lawfully during the whole course of his conduct toward Falconer, and Falconer has produced no evidence in opposition to the summary judgment motion to justify a contrary conclusion.
For example, in Susag, the plaintiff sought--after his resisting an officer conviction--to pursue a claim that the officer unreasonably used pepper spray on him before the arrest. (Susag, supra, 94 Cal.App.4th at pp. 1409-1410.) The Court of Appeal concluded that "any claim of excessive force based on discrete acts that occurred immediately preceding [his] arrest is barred by the Supreme Court's holding in Heck[,supra, 512 U.S. 477 [129 L.Ed.2d 383]] since a finding in his favor would necessarily imply the invalidity of his conviction under Penal Code section 148, subdivision (a)." (Id. at p. 1410; see Yount, supra, 43 Cal.4th at pp. 900-901.) The same reasoning applies here.
Nor is Falconer's self-serving declaration sufficient to raise a triable issue as to whether she may maintain an action against defendants, based on Officer Fellows's alleged post-arrest conduct, without undermining her conviction. She alleges that, after he arrested her, Officer Fellows locked the handcuffs too tightly, threatened her, forced her to ride to the jail in the back seat of an un-air-conditioned car, and sat a drunk arrestee next to her in the back seat. These alleged actions are part of the arresting officer's conduct "throughout the whole course" of his contact with Falconer (cf. Smith v. City of Hemet, supra, 394 F.3d at pp. 698-699), considered by the jury during the criminal trial of her resisting/obstructing an officer charge, and impliedly found by the jury to be lawful. Her description also suggests that the alleged events formed a continuous "chain of events," which the jury's implied finding of lawful conduct by Officer Fellows cannot be permitted to undermine. (See Truong v. Orange County Sheriff's Dept. (2005) 129 Cal.App.4th 1423, 1429 (Truong).)
In Truong, like Falconer, the plaintiff argued her civil action for damages was based on the officers' actions after she stopped resisting the officers and began to comply with their orders. (Truong, supra, 129 Cal.App.4th at p. 1429.) Rejecting her argument, the Truong court reasoned: "This was not a case where the acts alleged to be violations of the plaintiff's civil rights occurred hours, or even minutes, after the act which led to the plaintiff's conviction; the acts occurred mere moments later. Asserting that the crime was somehow over because the plaintiff changed her mind and started to [comply] is temporal hair-splitting, and would place deputies in untenable situations, where they are required to guess the mindset of the arrestee. We agree with the trial court that Truong's refusal to obey the lawful order and the events that led to her injuries are part of an unbreakable chain of events. Therefore, the limit set forth in Heck applies here, and Truong's civil rights claim cannot be maintained." (Truong, at p. 1429.)
Here, Falconer's declaration does not establish when the events she alleged actually occurred and therefore does not establish that the events that occurred after she was arrested were not part of a chain of events connected inexorably to her arrest.
Because Falconer failed to provide any evidence of excessive force that would not necessarily imply the invalidity of her conviction for resisting an officer, summary judgment was proper.*fn3
The judgment is affirmed. Costs on appeal are awarded to defendants. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: HULL , Acting P. J. HOCH , J.