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Cornell v. City and County of San Francisco

California Court of Appeals, First District, Fourth Division

November 16, 2017

BRET CORNELL, Plaintiff and Respondent,
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants and Appellants.

         City & County No. CGC11509240 of San Francisco Superior Court Hon. Lynn O'Malley Taylor Judge

          Haddad & Sherwin, Michael J. Haddad, Julia Sherwin, Genevieve K. Guertin, and T. Kennedy Helm for Plaintiff and Respondent.

          Dennis J. Herrera, City Attorney, Cheryl Adams, Chief Trial Deputy, Margaret W. Baumgartner, Deputy City Attorney for Defendants and Appellants.

          Streeter, J.

         Police officer trainee Bret Cornell, while off-duty and in street clothes, went for a run one morning in Golden Gate Park, stopping for a brief rest on a knoll called Hippie Hill. Two uniformed patrol officers in the area spotted him, thought he looked “worried, ” and grew suspicious because the bushes on Hippie Hill are known for illicit drug activity. As the patrolmen began to approach Cornell, but before they reached him or said anything to him, he resumed his run. The officers gave chase, joined in pursuit by two other officers who responded to a call for backup. One of the officers, with his gun drawn, eventually caught up to Cornell on a trail in some nearby woods.

         Cornell claims he had no idea he was being chased or that the officers wished to speak with him. On the trail, he says he heard a shout from behind, “I will shoot you, ” and looked over his shoulder to see a dark figure pointing a gun at him. He darted away, ultimately finding what he thought was refuge with a police officer awaiting his arrival some distance away at the top of a stairway in AIDS Memorial Grove. But to his surprise when he arrived there, that officer ordered him to the ground. He was arrested at gun-point and searched, taken in handcuffs to a stationhouse for interrogation, and eventually to a hospital for a drug test, which was negative.

         In the meantime, a team of officers went back to Golden Gate Park, spoke to people who had seen Cornell that morning, and conducted a search of the areas where he was known to have been, and of his parked truck. No evidence of involvement with drugs turned up, and after nearly six hours in custody, Cornell was released. As he was leaving the stationhouse, he was given a criminal citation for evading arrest in violation of Penal Code section 148. Other than cursory questioning by the officers who issued the citation, no one in a position of higher authority ever interviewed him or asked for his side of the story. Cornell was never prosecuted, but he lost his job as a result of the arrest and citation.

         To recover for the damage done to him, Cornell sued the four arresting officers, the Chief of Police, and the City and County of San Francisco. Following phase one of a bifurcated jury trial on special verdict forms, the trial court, relying on findings of fact by the jury in the initial phase, determined that Cornell was arrested without probable cause, thereby establishing liability for false arrest, and prompting the defense to stipulate to liability for negligence. In phase two, the jury returned a verdict for Cornell on two remaining claims, tortious interference with economic advantage, and violation of Civil Code section 52.1 (Section 52.1), awarding total damages of $575, 231. Following trial, the court added $2, 027, 612.75 in attorney's fees and costs on the Section 52.1 claim.

         These consolidated appeals are from the ensuing judgment and the award of attorney's fees and costs. The appellants argue 1) as a matter of law, the jury's phase one findings do not support the trial court's determination that probable cause was lacking, 2) the trial court should have declared a mistrial when the jury deadlocked on one of 18 questions put to it in the phase one special verdict form, 3) the trial court failed to address their argument that, under Penal Code section 847, subdivision (b), they are immune from claims for false arrest, and 4) even if the verdict on the tort claims is upheld, the Section 52.1 verdict and accompanying award of fees and costs must be reversed because there was insufficient evidence to submit that claim to the jury.

         Seeing no error, we affirm.

         I. BACKGROUND

         A. The Evidence at Trial

         In July 2010, Bret Cornell, a recent graduate of the police academy employed by the San Francisco Police Department as a field officer trainee, went for a morning jog in Golden Gate Park at around 7:00 a.m., after finishing a night shift. He was dressed in gray canvas pants cut off at mid-ankle, a plaid fleece jacket over a dark t-shirt, and running shoes. After running a considerable distance, at around 8:00 a.m., he ran across Sharon Meadow and stopped to rest at the top of Hippie Hill, just as a police cruiser drove through the trees up to the crest of the hill along a pedestrian pathway. He looked at the car, and not wanting to interfere with whatever the officers were doing, walked down to the bottom of the hill.[1]

         The two uniformed officers in the cruiser, David Brandt and Richard “Brett” Bodisco, considered Hippie Hill to be a high crime area. Both officers had made numerous narcotics arrests there, mostly involving drug transactions in the bushes, and there had been a homicide in the park a few days earlier. According to Officers Brandt and Bodisco, they drove up the pathway to gauge the reaction of people on the other side of the crest who could not see them coming. Cornell, a stranger to the officers, glanced at their car when they came into view, and then looked away. Cornell was by himself, not talking to anyone, had nothing in his hands, and was not doing anything specific to arouse suspicion. Officer Brandt described Cornell as having a “clean-cut” look, which he said was consistent with someone who was a recent parolee.[2] Because Cornell appeared to be “worried” in their presence, Officers Brandt and Bodisco turned their car toward him and decided to initiate a consensual encounter. They did not activate their lights, or say anything to him over their loudspeaker.

         As the officers turned toward Cornell, and as he walked away from them, headed downhill, he looked back briefly in their direction and then began running. With their suspicions aroused, the officers decided to chase Cornell and detain him. Officer Bodisco jumped out of the car and made a radio call for backup to assist in setting up a perimeter to cut Cornell off from any escape. The call, which drew the assistance of two more uniformed officers, Jesse Farrell and Sergeant Wallace Gin, included a description of Cornell and the direction he was headed, but no other details. When Officer Bodisco's call for backup went out, the police dispatcher asked “What's the want?” Officer Bodisco responded, simply, “[R]unning.” According to Officer Brandt, the call gave no specifics because at that point “we didn't have anything specific.” Surveying the area from the top of the hill to see where Cornell went, Officer Bodisco testified he saw Cornell go off path through some bushes, reappearing below the hill without his plaid jacket and wearing only a dark shirt, which the officers took to be an attempt to throw them off his track.

         When Cornell left Hippie Hill, he was unaware the officers wanted him to stop. His explanation for discarding his fleece jacket was that, after an hour's run, he was feeling hot. Having unsuccessfully tried to tie his fleece jacket around his waist while running at an earlier point on his route, he folded it and placed it on a tree stump to retrieve later. He said he had done that before and had no problem with anyone taking it, and even if someone did take it, the garment was inexpensive and easily replaceable. Once the officers caught sight of Cornell from their vantage point on Hippie Hill, Officer Bodisco set out after him on foot. Officer Brandt, still in the cruiser, drove down and around the hill, past some tennis courts, and along nearby Bowling Green Drive. As he drove, Officer Brandt stopped to ask two people along the way if they had seen someone matching Cornell's description; one person claimed to have seen someone running near the tennis courts, and another said he had heard some rustling in bushes up a winding dirt trail nearby.

         Continuing in the direction these park users pointed out, Officer Brandt's search took him to the bottom of a trail known as the High Path, a dirt pathway lined on both sides by trees and brush, leading up a hill beyond Bowling Green Drive at the entrance to the AIDS Memorial Grove. Officer Farrell arrived and joined Officer Brandt at the bottom of the High Path, and the two of them began proceeding up the trail, with Officer Brandt in the lead. Officer Brandt described the trail as dark and having a “cave[-like] appearance.” He unholstered his gun at this point and held it in a “low ready” position, not because of any specific threat, but because of “fear of the unknown.” Officer Farrell, for his part, perceiving no threat, left his gun holstered.

         Officer Brandt caught sight of Cornell walking up ahead and eventually came close enough to confront him. Officer Farrell was directly behind Officer Brandt, could see that Cornell appeared to be “clean cut, ” was not armed, had nothing in his hands, and was doing nothing threatening. Officer Brandt shouted something at Cornell. Both officers recall Officer Brandt unmistakably ordering Cornell to stop at that point, [3] causing Cornell to pause, half turn in their direction, look at them squarely, and then dash away at full speed, taking a route downhill through the trees in a clear effort to evade capture.

         Cornell-who testified he still had no idea he was being pursued by police officers during the encounter on the High Path-said he heard a “disturbance” behind him and then heard the words “I will shoot you, ” which prompted him to glance over his shoulder and see a dark figure pointing a gun. He said he took off sprinting in desperate flight from an unknown, armed attacker, and then tripped and fell down a steeply pitched slope through some trees, tumbling into the AIDS Memorial Grove. Standing at the top of a stairway across the meadow from where Cornell landed was Sergeant Gin. Cornell began to run toward the stairway, thinking he had found protection from the unknown assailant who had just accosted him on the High Path. To Cornell's surprise when he reached the bottom of the stairway, Sergeant Gin ordered him to stop and put his hands up.

         At this point, Cornell surrendered without any protest or struggle. He raised his hands as directed, but Sergeant Gin testified that as Cornell began walking up the stairs he lowered his right hand to shoulder height, at which point Sergeant Gin drew his gun and ordered him to the ground. Cornell again complied. As he lay prone on the steps, Officers Bodisco, Brandt and Farrell arrived, and Officer Bodisco handcuffed him, with the cuffs binding his hands behind his back. Cornell remained cooperative and compliant throughout the handcuffing process.

         Upon being handcuffed, Cornell was not advised he was under arrest or the basis of the arrest. None of the officers dispute, however, that he was under arrest. Having made the arrest, the officers conducted a full search incident-to-arrest. The search turned up nothing except Cornell's police identification and a standard-issue set of handcuffs in his back pocket. It was not until this point-some seven minutes after the initial encounter on Hippie Hill-that Cornell told the arresting officers he was a police officer and that he was just out for a run. When asked where his gun was, Cornell said it was in his truck, which was parked near Stowe Lake. Sergeant Gin decided at this point to take Cornell to Park Station for further interrogation. Cornell was then escorted up the steps and loaded into the back of a transport wagon, still bound in handcuffs behind his back.

         As Cornell was being driven to Park Station, he began to feel light-headed, had trouble breathing, and he requested a double set of handcuffs to relieve discomfort. He repeatedly asked the driver for assistance, but was ignored. After the transport wagon left, headed for Park Station, several officers conducted a search in Golden Gate Park, looking for incriminating evidence. They found Cornell's plaid jacket discarded in the bushes, but there was nothing in it. They also located Cornell's truck, which was parked on Conservatory Drive, some distance from Stowe Lake where Cornell said he parked it; his gun was inside, where he had indicated it could be found.

         Upon arrival at Park Station, Cornell still had not been told why he was under arrest. Officers Bodisco and Brandt surreptitiously recorded an interview of him and during the questioning Officer Brandt told Cornell “[y]ou're going to end up hanging yourself pretty hard by lying. I can tell you that right now.” Cornell's repeated question, “What's the charge?, ” went unanswered. Responding to Cornell's insistence that he had been unaware he was being pursued by police and that no officer ever issued a command to stop running, Officer Brandt accused him of being a “professional”-meaning someone who has an “extensive history of criminal misconduct” who seeks to “work the system for their benefit”-and brushed off Cornell's denial of wrongdoing with the comment, “you can talk to them downtown.”

         While held in custody at Park Station, Cornell was handcuffed to a bench in full view of many officers, the “entire watch” as he put it, and he overheard several of them chuckling about him being a field officer trainee, which elicited comments such as “not anymore” and “another one bites the dust.” Cornell continued to report being in physical distress while at Park Station, so paramedics were called, and he was taken to a hospital. In the ambulance, while the paramedics were taking Cornell to the hospital, Officer Brandt arranged to place a hidden audio recording device near him, “because [he] might say something stupid.” The recording captured nothing incriminating. At the hospital, a sample of Cornell's blood was taken and tested for the presence of narcotics. The blood draw was negative.

         Upon receiving medical clearance at the hospital, Cornell was returned to Park Station, where he was eventually released at 1:50 p.m., after nearly six hours in custody. While processing him for release, Officer Brandt said to Cornell “you know the drill” and handed him a misdemeanor citation accusing him of violating Penal Code section 148, subdivision (a), for resisting or delaying an officer in the course of his duties. The citation, signed by Officer Bodisco, and approved by Sergeant Gin, specified Hippie Hill as the location of the offense. No criminal charges were ever brought, but two days later, pursuant to a policy requiring termination for misconduct of any officer trainee-trainees are probationary employees-the San Francisco Police Department summarily released Cornell from its employ, ending his career as a San Francisco police officer and effectively disqualifying him from obtaining a law enforcement position with other departments or agencies.

         B. Claims and Trial Proceedings

         Cornell brought this action against Officers Brandt, Bodisco and Farrell, Sergeant Gin, San Francisco Police Chief George Gascon, and the City and County of San Francisco (the City). In his complaint, as amended, he pleaded claims for violation of Section 52.1, negligence, assault and battery, false arrest and imprisonment, and tortious interference with contract and/or economic advantage.[4] The remaining defendants at trial-and the appellants here-were Officer Brandt, Officer Bodisco, Officer Farrell, Sergeant Gin, and the City.

         The case was tried to a jury over the course of 23 trial days in October and November 2013. At the close of the evidence, jury deliberations were bifurcated into two phases, with the first phase addressing the claims of assault and false arrest. A special verdict form for Phase I presented a series of 18 questions, beginning with a question asking the jury to decide whether Cornell had proved his assault claim, followed by a series of 17 factual questions pertinent to the legal issue of probable cause to arrest.[5] The court adopted this bifurcated mode of submitting the case to the jury based on the expectation that the Phase I findings would dictate what, if anything, remained to be decided in Phase II.

         After a day and a half of Phase I deliberations, the jury reported being “hopelessly stuck” on two of the questions submitted to it. The court admonished the jury to keep trying. Late that afternoon, a Friday, the jury again reported it was still stuck on two questions, this time adding that there was “no other testimony or evidence that will change any of our minds.” With the jury at an impasse, the court recessed for the weekend, after first excusing a juror who had a schedule conflict and substituting an alternate juror. The reconstituted jury began deliberations anew the following week, but after two additional days of deliberating, remained hung, though on only one question. The court decided to take the Phase I verdict at that point despite the unanswered question, over an objection from the defense.[6]

         In its Phase I verdict, the jury found unambiguously for the appellants on the assault claim. Beyond that, however, the results were mixed, with some findings tending to favor the officers' version of events, and some findings tending to favor Cornell's version. In the findings favorable to Cornell, the jury found that Officers Brandt and Bodisco never said anything or otherwise communicated to Cornell their desire to speak to him on Hippie Hill; that it was not reasonable for them to believe Cornell had come out of the bushes on Hippie Hill; and that, contrary to Officer Bodisco's testimony, they did not see Cornell run off trail through the bushes when he left Hippie Hill. The jury deadlocked on the question whether it was reasonable for Officers Brandt and Bodisco to believe Cornell fled from them on Hippie Hill.

         In the findings favoring the defense, on the other hand, the jury found that Officers Bodisco and Brandt considered Hippie Hill to be a high crime area; that the officers' knowledge of the types of crimes committed there “could lead them to suspect” Cornell may have been engaged in criminal activity; that the officers reasonably believed that Cornell appeared “nervous or evasive” when he saw them; that they reasonably believed Cornell shed his jacket in an effort to avoid being detected; that when Officers Brandt and Farrell encountered Cornell on the High Path, they reasonably believed he knew they were police officers; that a reasonable officer would not have believed Cornell was fleeing from the use of unreasonable force against him by Officer Brandt; that, contrary to Cornell's testimony, he went down the hill from the High Path into the AIDS Memorial Grove intentionally, not accidentally; and that it was reasonable for the officers to believe he was trying to evade capture in doing so.

         Based on the jury's Phase I findings, the court ruled as a matter of law that defendants did not have reasonable suspicion to detain Cornell and that he was arrested without probable cause. In the hiatus between Phases I and II, the defense stipulated to liability on the part of all defendants on the negligence claim, leaving only the tortious interference with economic advantage claim and the Section 52.1 claim for decision in Phase II. Moving on to the next phase of the jury deliberations, the court posed a series of Phase II questions pertaining to these two claims and to issues of causation and damages on all claims. With liability for false arrest and negligence established in Phase I, the jury returned a Phase II special verdict finding liability on the tortious interference and Section 52.1 claims, [7] awarding total damages of $575, 231, including $234, 007 in past economic damages, $266, 224 in future economic damages, and $75, 000 in past non-economic damages, with judgment entered accordingly.[8] The court then granted Cornell's motion to tax costs, awarding him $2, 027, 612.75 in attorney's fees under Section 52.1.

         These timely appeals followed, from the judgment and from the attorney's fee award.


         A. Probable Cause to Arrest

         Where the facts are not in conflict, the issue of probable cause is a question of law reviewable de novo on appeal. (Giannis v. City and County of San Francisco (1978) 78 Cal.App.3d 219, 225; People v. Tyler (1961) 193 Cal.App.2d 728, 735.) We look to whether facts known to the arresting officer “at the moment the arrest was made” (Beck v. Ohio (1964) 379 U.S. 89, 90) “ ‘would persuade someone of “reasonable caution” that the person to be arrested has committed a crime.' ” (People v. Zaragoza (2016) 1 Cal.5th 21, 57; see Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9.) “The rule of probable cause is a practical, nontechnical conception” that turns on an assessment of the facts gathered by the arresting officer in the field (Brinegar v. United States (1949) 338 U.S. 160, 176) and is not governed by courtroom standards of proof. (Ibid.) Many verbal formulae have been used to describe it, but distilled to their essence “ ‘[t]he substance of all the definitions... is a reasonable ground for belief of guilt' ” (id. at p. 175), where the belief is “particularized with respect to the person to be... seized.” (People v. Thompson (2006) 38 Cal.4th 811, 818.)

         The legal standard we apply to assess probable cause is an objective one in which the subjective motivations of the arresting officers have no role. (Whren v. United States (1996) 517 U.S. 806, 813; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1045 (Gillan); Johnson v. Lewis (2004) 120 Cal.App.4th 443, 454.) But it is an overstatement to say that what is in the mind of an arresting officer is wholly irrelevant, for the objective test of reasonableness is simply a measure by which we assess whether the circumstances as subjectively perceived by the officer provide a reasonable basis for the seizure. (Agar v. Superior Court (1971) 21 Cal.App.3d 24, 29; see Devenpeck v. Alford (2004) 543 U.S. 146, 153.)

         Of course, temporary detention on grounds short of probable cause is also constitutionally permissible in some circumstances. (Terry v. Ohio (1968) 392 U.S. 1, 20-21, 27.) A “brief, investigatory stop” is justified where an officer has “reasonable, articulable suspicion that criminal activity is afoot, ” implicating the suspect. (Illinois v. Wardlow (2000) 528 U.S. 119, 123 (Wardlow); see In re Tony C. (1978) 21 Cal.3d 888, 893.) While the more demanding standard of probable cause requires a basis to suspect someone of having committed a particular crime, reasonable suspicion to detain only requires facts connecting the suspect to “criminal activity” more generally. (People v. Campbell (1981) 118 Cal.App.3d 588, 594.) Like the probable cause determination, the applicable test courts use to assess reasonable suspicion is an objective one, specific to the detainee. (People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.)

         Our Supreme Court recently explained that “ ‘[a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.' [Citation.] Such reasonable suspicion cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area.” (People v. Casares (2016) 62 Cal.4th 808, 837-838 (Casares).) Reasonable suspicion must rest on objective particulars tying a particular person to criminal activity, rather than on a mere “hunch” that something is odd or unusual about the person detained. (Id. at p. 838; see People v. Bower (1979) 24 Cal.3d 638, 647 [officer's suspicions about white man found late at night in a “high crime, ” largely black neighborhood insufficient to justify detention where the officer testified he had never seen a white person in that area at that time “for an innocent purpose”].)

         Cornell was arrested for the offense of “willfully resist[ing], delay[ing], or obstruct[ing] [a]... peace officer... in the discharge... [of a] duty of his or her office” under Penal Code section 148, subdivision (a). To violate this statute, the obstructive conduct must impede the lawful performance of an officer's duty. (People v. Curtis (1969) 70 Cal.2d 347, 354; People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543.) Thus, the analysis here focuses, at its core, on whether there was reasonable suspicion justifying Cornell's detention at any point between the time he was spotted on Hippie Hill and the time he was arrested in AIDS Memorial Grove. If there was not, Officers Brandt and Bodisco-and their fellow officers, since all of the officers involved in pursuing Cornell constructively shared the same pool of information under the collective knowledge doctrine[9]-were acting outside the lawful course of their duties when they sought to detain him. That analysis drives the probable cause analysis, for if there was no objectively reasonable basis to believe Cornell had violated ...

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