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Deborah Falconer v. City of West Sacramento et al

July 26, 2011

DEBORAH FALCONER, PLAINTIFF AND APPELLANT,
v.
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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