Filed 8/29/18 Prado v. Police Dept. of East Palo Alto CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

ERICA PRADO,

Plaintiff and Appellant,

v.

POLICE DEPARTMENT OF EAST PALO ALTO et al.,

Defendant and Respondent.

A151297

(San Mateo County

Super. Ct. No. CIV 535677)

This unfortunate case arises from the efforts by Officer Clay Warford to arrest a fleeing suspect who was wanted on a no-bail felony fugitive warrant. Unfortunately, during that pursuit, Warford came upon an 85-pound pit bull in a back yard the officer entered chasing the suspect. The legal issue here is whether Officer Warford was in violation of the Fourth Amendment by pursuing the suspect as he did. The second issue arises because the officer shot the pit bull in the leg, injuring the dog. We are therefore obligated to determine whether entry into appellant’s back yard in pursuit of the suspect gives rise to qualified immunity. The trial court granted summary judgment for the respondent on each legal issue here. We affirm.

STATEMENT OF FACTS

On March 31, 2015, respondent Officer Clay Warford of the East Palo Alto Police Department was on routine patrol in a marked police vehicle. He saw a male, approximately 17 years of age, walk out of the Eastside Market at 2380 Clarke Avenue, East Palo Alto, and enter the passenger side of a white Jetta. Warford knew the male to be a member of the Norteño gang, a group involved in organized criminal behavior in the community. He also knew the person was a fugitive with an active no-bail warrant outstanding. Additionally, the officer knew, based on his personal experience, that members of the gang often carried weapons. As the suspect entered the Jetta, he looked in the direction of the marked police patrol car.

The officer made a U-turn and followed the Jetta. During the tailing of the white car, the suspect looked behind at Warford’s vehicle a few times. Warford requested backup on his police radio and decided to make a traffic stop of the Jetta. The Jetta came to a stop and the suspected fugitive jumped out of the car and began running on Clarke Avenue. In response to the radio call, three backup officers arrived at the scene and were directed to take up locations within the perimeter of the fleeing suspect in a two- to-three-block area.

Warford located the suspect in the back yard of a home on the east side of Runnymede Street; the suspect took off with Warford in pursuit. The chase proceeded west on Tuscany Court, a dead-end street. The suspect disappeared into private property at the end of Tuscany, fleeing in a westerly direction. The west side of this property on Tuscany borders the back yard of 2261 Clarke Avenue.

Based on his experience, Warford believed the fugitive either would hide in the back yard of 2261 Clarke, hide in an adjacent yard, or try to exit the property at the front of 2261 Clarke so as to then run across Clarke Street towards the yards in the next block across the street. Warford understood his fellow officers were posted at the corners at the perimeter of Clarke Street, and 2261 Clarke was a middle home on the block. To Warford, the best option for escape by the fugitive was to exit the 2200 block of Clarke and run across the street into the back yards on the adjacent block. Doing so would avoid the police positions on the perimeter of the block.

Based on this assessment, Warford ran around the block from Tuscany Court near Runnymede to the front of 2261 Clarke Avenue. At this time, Sergeant Angel Sanchez advised Warford children playing in the street at the time did not see any person running. With this information, Warford decided to go into the back yard of 2261 Clarke to find the suspect if he was hiding there. Unfortunately, the suspect was not in the yard at 2261 Clarke. An alternative was the yard next to 2261, a home addressed as 875 Schembri Lane. From the back yard of 2261 Clarke, Warford looked into the back yard of 875 Schembri Lane. Warford was not familiar with this property. As he looked into the yard, he did not see any dogs or other animals. He noticed two sheds in the yard. The officer climbed over the fence looking for the fleeing suspect.

Once in the rear yard of 875 Schembri, Warford moved toward one of the sheds. He was then confronted by an 85-pound pit bull that began to approach the officer. Warford moved backwards towards the fence he had just jumped to avoid the dog. Initially, the dog stopped with the officer in retreat. During this time, Warford did unholster his weapon and pointed the gun towards the ground.

The pit bull then charged at the officer with the canine’s teeth visible. To the officer, the dog appeared to be on attack. In rebuttal to the statement by Officer Warford the dog’s teeth indicated it was about to attack, witness Natalia Fonseca submitted a declaration that the dog never showed its teeth to any person. However, the trial court in the hearing struck the statement due to the lack of personal knowledge. With this ruling the fact the dog exhibited its teeth during the chase is not disputed.

When the pit bull came within 10 feet of the officer, Warford fired a shot, hitting the animal in the leg. The dog, after being hit by a bullet, made an about face and ran toward the house. Warford then jumped over the fence. The dog was taken by police to an animal hospital and treated for its leg wound.

Warford later found the fugitive he had been chasing in the back yard of 875 Schembri Lane, but at the time of the shooting he did not know the suspect was there. Coincidently, on a prior occasion, Warford had arrested another resident of the property, but at the time of the dog incident, the officer did not recall this. Approximately 30 minutes after the incident with the dog, Officer Warford went to the home of the owners to apologize for his conduct. At the door front, Warford recognized Pedro Fonseca talking with a sergeant. Fonseca was upset and cursed the officer. Police personnel advised Warford to leave the location.

Officer Warford was unfamiliar with 875 Schembri Lane on the date of this incident and did not know a pit bull would be present on the property.

DISCUSSION

We begin our review of the ruling on the motion for summary judgment in favor of respondents with a critical observation of what we need to review. The first amended complaint (FAC) in this case was filed on March 11, 2016. The defendants in the case were the City of East Palo Alto Police Officer Warford and Police Chief Pardini. There were a total of nine causes of action alleged in the FAC. However, in appellant’s opposing brief filed below on the summary judgment motion, appellants made no mention of causes of action two through seven and nine. These particular causes of action alleged tort violations under California state law. The second cause of action was pursuant to Civil Code section 52.1 (intentional interference by “threats, intimidation, or coercion” with the exercise or enjoyment of a person’s civil rights). The third cause of action was for trespass to chattel. The fourth was conversion. The fifth was intentional infliction of emotional distress. The sixth was negligence. The seventh was negligent training and supervision. The ninth was for negligence and gross negligence. The first cause of action alleged a federal civil rights violation under the Fourth Amendment based on title 42 United States Code section 1983 for entering the yard of appellant and shooting her dog. Also, the eighth cause of action alleged excessive force under the Fourth Amendment and Civil Code section 52.1. Appellant only submitted argument in her reply to summary judgment on the latter two causes of action. All her other state law causes of action were not defended in the response to respondent’s motion for summary judgment.

The ruling by the trial court concerned the legal issues presented by respondent and answered by appellant. The particular causes of action to which appellant chose not to respond were not addressed by the trial court because they appear abandoned. Her only legal arguments concerned the first and eighth cause of action.

Furthermore, in her opening brief in this appeal, appellant only makes a reference to Civil Code section 52.1, the claim for excessive force via threats or coercion, found in the FAC as the eighth cause of action. Her reference focuses on federal law dealing with excessive force. Also, appellant states that her state law causes of action are subject to investigative immunity under Government Code section 821.6, which she concedes applies to all pre-arrest police investigative decisions “except use of unreasonable force.” We therefore conclude, based on this record, appellant has waived our review of any cause of action in the FAC except the first and eighth causes of action. The fact that she presents certain vague allegations in her reply brief will not change this determination. Neither the court below nor respondent on appeal has had the opportunity to address the contentions and we view the contentions waived. However, we will only briefly, at the end of the opinion, indicate why these “waived” claims lack substantive merit out of an abundance of caution.

We find the Fourth Amendment claim of improper entry by Officer Warford onto the property of appellant to be meritless because the officer was permitted to enter under the “hot pursuit” doctrine and in the exercise of his duty to prevent the suspect’s escape.

The United States Supreme Court has determined an exception to the warrant requirement of the Fourth Amendment is present when an officer enters private property to prevent the escape of a suspect. (Minnesota v. Olson (1990) 495 U.S. 91, 100 (Olson).) To prevent the escape of a suspect under this theory, the officer must have probable cause to believe the entry is necessary to negate any escape by a suspect. (Ibid.) Our Supreme Court has reached a similar conclusion. (People v. Thompson (2006) 38 Cal.4th 811, 818; People v. Celis (2004) 33 Cal.4th 667, 676.) These cases do not require probable cause to believe the suspect is on the property, only that entry is necessary to prevent a potential escape from the private property. In other words, probable cause to prevent escape allows the officer to travel through various properties to apprehend a suspect where he is eventually located. This leeway is permitted in part because the suspect has chosen to flee from the authorities.

Probable cause does not involve a preponderance of the evidence to be available to police authority. It is but a “fair probability” standard. (Illinois v. Gates (1983) 462 U.S. 213, 246.) In this case, since Officer Warford believed he had probable cause to pursue the fugitive suspect, the issue is a legal one. (People v. Miller (1972) 7 Cal.3d 219, 225; Giannis v. City and County of San Francisco (1978) 78 Cal.App.3d 219, 225.) We decide the issue as a matter of law.

In this case, Officer Warford had been on foot chasing the suspect. As he chased the suspect, he was making decisions on where to go. He relied on his backup support and the police perimeter he knew existed within the area of 2200 Clarke Avenue. He chose the option he concluded would locate the suspect. If he was wrong, the suspect could get away; if he was correct the suspect would be apprehended. This was snap assessment time; it challenged his professional training. He concluded the likely path of the suspect was the back yard north and next to the 2261 Clarke property, which was appellant’s back yard. Therefore, it was a fair probability he had to enter that yard to apprehend the suspect. Hence, the entry was lawful under the cases cited above.

Appellant argues the officer never saw the suspect in the appellant’s yard. Visual contact is not necessary, however. The officer was following a path he believed would result in apprehension; the law does not require the police officer to see the suspect before he elects to go in one direction as opposed to another. To require such would preclude many arrests of serious felons under the circumstances presented in this case. That is not the standard.

A second theory justifying Officer Warford’s conduct is the doctrine of “hot pursuit.” The courts have held an officer engaging in the hot pursuit of a felon may enter private property without a warrant. (See Olson, supra, 495 U.S. at p. 100; Kentucky v. King (2011) 563 U.S. 452, 460.) The doctrine encompasses the notion of a chase by a police officer; a person cannot avoid arrest if he starts the chase in a public place by scampering to a private spot seeking to enjoy warrant protection. (United States v. Santana (1976) 427 U.S 38, 42–43.) In People v. Escudero (1979) 23 Cal.3d 800, the eyewitness to a burglary lost sight of the suspect after the crime but was able to provide police with vehicle information. This information allowed police to determine the residence of the suspect and go to the home without a warrant only one hour after the burglary. (Id. at pp. 804–805.) To the court, these facts constituted hot pursuit. Getting a warrant would have enhanced a flight risk under the circumstances. (Id. at p. 811.)

Appellant argues she is not aware of cases dealing with hot pursuit into back yards as opposed to private homes. However, the fact the doctrine has been embraced when police engage in hot pursuit and enter private dwellings suggests the entry into a back yard, which is a lesser invasion of privacy, would be, at least, an equally viable theory. It is the tolerance of entry into private property that is assessed here. The chase originated on a public street and only extended itself to the private property of appellant because the suspect took the chase there. Denying law enforcement the opportunity to pursue an escaping individual because of the private property perimeter when police are in hot pursuit could increase the likelihood of danger to the occupants of the home involved and create potential for a serious hostage situation. Under People v. Thompson, supra, 38 Cal.4th at pages 827–828, the nature of the suspect’s flight and the actual degree of intrusion into the Fourth Amendment interests of the private property occupant are relevant factors to consider. In this case, the suspect had escaped through several yards and properties. The intrusion was not into the actual building of appellants; instead Officer Warford entered the back yard. This area, while private, is less intrusive than appellant’s building.

Additionally, because the chase was on at the time of entry, there was obviously no opportunity to get a search warrant.

Respondent also contends Officer Warford’s conduct is protected by federal qualified immunity. The doctrine aims at providing civil protection to police officers, among other governmental agents, for all but the plainly incompetent or those who knowingly violate the law. The notion of qualified immunity protects a defendant who has a reasonable, but mistaken, belief regarding the facts or the law in the situation he or she faces. (Malley v. Briggs (1986) 475 U.S. 335, 341.) Any Fourth Amendment right violated by Officer Warford here must be clearly established in the particular setting of the case; an objectively reasonable official would understand what he or she is doing violates the particular constitutional right that underlies the violation. (Anderson v. Creighton (1987) 483 U.S. 635, 640 (Anderson).) In other words, the unlawfulness by the official must be apparent. (Ibid.) For a government official’s conduct to violate clearly established law, so that the official is not entitled to qualified immunity from claims for money damages, a case directly on point is not required, but existing precedent must have placed the statutory or constitutional question beyond debate. (Ashcroft v. al Kidd (2011) 563 U.S. 731, 741 (Ashcroft).) If a reasonable officer could have believed he had probable cause to engage in the action involved in the civil rights suit, then qualified immunity in fact applies. Even if mistaken, if the officer reasonably believes he is acting with probable cause he will enjoy qualified immunity. (Hunter v. Bryant (1991) 502 U.S. 224, 227.)

The assessment of the facts underlying this reasonable belief on the part of Officer Warford he had probable cause is a legal one determined by the court. (Anderson, supra, 438 U.S. at p. 641.) The facts in this case are essentially not in dispute, since Officer Warford provided the factual context for the chase of the suspect and the Fourth Amendment issues that are presented by that pursuit. Hence the issue is one of law and ripe for adjudication in a summary judgment motion. The trial court reviewed the issue consistent with the law of qualified immunity as it exists and we see no reason to disturb it.

The first cause of action in the FAC alleges appellant’s Fourth Amendment rights were violated when Officer Warford “seized property” (the pit bull dog) which appellant identifies as one of her personal effects. We find this claim fails for the following reasons.

First, a violation of unreasonable seizure under the Fourth Amendment requires an intentional acquisition of physical control of the property. (Brower v. Inyo County (1989) 489 U.S. 593, 596.) In this case, there was no intentional acquisition of physical control of the pit bull. The dog was never seized by Officer Warford after he shot it; the dog ran away from the officer. There can be no seizure under the Fourth Amendment where the act by Warford only results in wounding the animal.

Also, at the time Officer Warford entered the yard at 875 Schembri Lane, he saw no evidence there was a dog in the back yard. He was only in pursuit of a suspect. He did see two sheds in the yard but witnessed nothing else. While appellant argues Officer Warford should have recalled the dog from three years before this incident, when the officer encountered the pet in the front yard of the residence, the fact remains the officer never encountered the dog in the back yard at any time. Importantly, the officer had no basis for knowing the back yard he entered in this case was the same property he had responded to three years earlier.

Again, the shooting here only took place when the officer was confronted by the 85-pound pit bull, who suddenly appeared once the officer was in the yard. While the officer tried to climb the fence and vacate the yard, he was unable to succeed because the animal appeared ready to bite him. He was able to fire to avoid injury. The events here were sudden and brief; the officer’s reactions were not unreasonable. Appellant relies on San Jose Charter of Hells Angels v. San Jose (9th. Cir. 2005) 402 F.3d 962. In that case, the court found the killing of a dog during the execution of a search warrant by police on the clubhouse was unreasonable under the Fourth Amendment. The police knew for one week before the execution of the search warrant the plaintiff had dogs on the property but, in the court’s view, developed no strategy to deal with the animals during the implementation of the warrant. (Id. at p. 977.) There the authorities had notice but developed no plan. Here the officer had no notice and cannot be faulted for what he did not know. Reliance on this federal decision by appellant is misplaced.

The final basis supporting qualified immunity here is the wounding of the dog does not amount to a seizure. There is no case presented where the act of wounding of an animal amounts to unreasonable conduct by police under these facts. More importantly, since the standard for denying a claim of qualified immunity can only be sustained under Anderson and Ashcroft if it is beyond debate the officer’s conduct involved a violation of the Fourth Amendment, the shooting of the dog would not preclude qualified immunity.

In her eighth cause of action, appellant alleges excessive force under Civil Code section 52.1 and title 42 United States Code section 1983. Appellant’s claim for excessive force in this case is legally defective. Under the Fourth Amendment, the term “person” does not include animals such as pet dogs. There can be no constitutionally excessive force imposed on a dog. (Sandoval v. Las Vegas Metropolitan Police Dept. (9th Cir. 2014) 756 F.3d 1154, 1167, fn. 10.) Additionally, appellant was not present when the animal was shot and could not therefore experience the trauma of observing the infliction of excessive force vicariously.

It is also the case, as has been discussed above, Officer Warford acted reasonably under the circumstances of this case. He faced a hostile dog approaching his person, and concerned for safety, fired but one shot at the animal. The facts therefore do not support the eighth cause of action under federal law. The same reasoning applies to Civil Code section 52.1.

We have previously concluded that appellant abandoned her several specific causes of action alleging violations of state law. If we were to address the substantive merits of these abandoned claims, we would find the claims lack merit based on the law relating to the particular statutes and the causes of action.

The second cause of action alleges a violation of Civil Code section 52.1. As indicated previously, section 52.1 of the Civil Code prohibits a person from interfering, or attempting to interfere, with the exercise or enjoyment of constitutional rights of another by means of threats, intimidation or coercion. A police officer violates this statute only if his or her conduct is “deliberate or spiteful.” (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959.) There is simply no evidence in this record Officer Warford deliberately or spitefully prevented appellant from exercising a constitutional right; he did not know appellant had any connection with the property where the shooting took place. When the officer shot her dog, appellant was not present. The police officer did not enter appellant’s yard with a purpose of injuring the animal; he was not aware the dog was present in the yard. There are no facts presented to support the second cause of action.

The third cause of action alleges Officer Warford’s shooting of the dog was a trespass to chattel. This is an intentional tort and requires liability only if the actor acts without justification under the circumstances. For example, the use of self-defense is based on the theory of justification and necessity; it precludes responsibility for particular conduct that otherwise would be a basis for liability. Such behavior is not willful and an actor like Officer Warford avoids liability for intentionally injurious conduct if the facts support justification. (Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 730.) In this case, the officer fired his weapon only once and did so to avoid being bitten by the appellant’s dog. The trespass to chattel claim fails.

The fourth cause of action is for conversion. The tort involves the intent to convert the goods of another by the actor and to exercise ownership over such property of another. (Collin v. American Empire Ins. Co. (1994) 21 Cal.App.4th 787, 812.) There are no facts presented in this record reflecting an intent on Warford’s part to either exercise ownership over the dog or prevent appellant from her right to exercise such control. Indeed, after the animal was injured the police took the dog to a veterinarian and appellant took custody of the animal at the location. This cause of action is without legal basis.

The fifth cause of action alleges the intentional infliction of emotional distress. A claim here requires proof of “extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) The police officer did not know the dog was in the yard when he entered it and certainly had no basis to believe this appellant was connected with the property. Appellant was not a person Warford had an intent to upset in any fashion, let alone in a reckless or extreme degree.

The sixth cause of action alleges negligence on the part of Officer Warford. When discussing negligence by an officer in the exercise of his or her professional conduct, we need to focus on the reasons for the exercise of official conduct—was the officer acting in an unconstitutional manner when he sought to arrest a criminal suspect. (Moore v. City and County of San Francisco (1970) 5 Cal.App.3d 728, 735.) Since we have found Warford was properly acting in hot pursuit to apprehend an escaping felon, we cannot conclude he was negligent in the exercise of his professional duties. The unfortunate shooting of the dog during the pursuit was an act of self-defense and reasonable under the circumstances.

The seventh cause of action alleges negligent training and supervision against the City of East Palo Alto (City) and Chief Pardini, Officer Warford’s boss. The claim alleges a violation of Civil Code section 52.1 and title 42 United States Code section 1983. Against these two parties, the claim under Civil Code section 52.1 fails because there is a lack of spiteful conduct and an absence of threat or coercion by the named parties. Nothing in this section of the Civil Code deals with the supervision of Warford or the training he has received. Regarding the application of title 42 United States Code section 1983, federal law mandates that a review of officer supervision arises only if appellant first establishes that Officer Warford did violate the constitutional rights of another. (City of Los Angeles v. Heller (1986) 475 U.S. 796.) The Supreme Court of the United States has made it clear that there is no respondeat superior liability against a third party like a municipal government if the only evidence presented is the officer acted in an unconstitutional manner. (Board of Commissioners of Bryan County v. Brown (1997) 520 U.S. 397, 403 (Brown).) The failure to train or supervise requires more than negligence on the part of the entity, it requires proof of “ ‘deliberate indifference.’ ” (Id. at p. 407.) If the theory under the title 42 United States Code section 1983 claim is an implied notion of deliberate indifference in the training of police or law enforcement personnel, the appellant must establish the officer’s conduct as a threshold position was so violative of another’s constitutional rights that the need for better training was “plainly obvious to the city policymakers.” (Brown, at p. 407.) ) Furthermore, this deliberate indifference on the part of policymakers must be the moving force in the link to the officer’s alleged constitutional misconduct. (Id. at pp. 407–408.) In this case, there is no proof either Chief Pardini or the City have engaged in tolerating a pattern of behavior like that engaged in by Officer Warford; neither party could be therefore deliberately indifferent to unconstitutional conduct. Additionally, appellant contends the City does not have a policy dealing with handling dogs during the exercise of search warrants and like behavior. However, she does not support this claim and it is her burden to do so. During oral argument below, counsel for appellant referenced POST training procedures, including animal control during the execution of a search warrant and having it serve as a basis for hot pursuit training. However, the claim by counsel is not admissible evidence in a motion for summary judgment without support in her papers. Also, the Yolo County settlement agreement (filed in Dixon v. City of Woodland Police Department et al. (Super. Ct. Yolo County, 2008, No. CV03536)), attached to appellant’s opening brief, was not presented before the trial court and lacks relevance to our case. Finally, any protocols police departments may implement in executing organized and planned search warrants on a residence are not compatible with the exigent circumstances and hot pursuit principles present in this case.

The final state law cause of action is the ninth. It alleges both negligence and gross negligence, but its lack of merit is consistent with our rejection of the sixth cause of action for negligence.

A final barrier to the lawsuit here is the principle of statutory immunity under Government Code sections 815, subdivision (b) and 815.2. Appellant concedes in her opening brief at page 9 that Government Code section 821.6 bars plaintiff’s state law claims against Officer Warford. She relies on Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205 (Amylou R.). Government Code section 821.6 provides immunity to law enforcement personnel from state law tort claims in any pre-arrest criminal law enforcement litigation except when unreasonable force is used by the officer. Government Code section 821.6 states: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This application was discussed in Amylou R. and Baughman v. State of California (1995) 38 Cal.App.4th 182, 193 (Baughman). In Baughman, the police were executing a search warrant and during this execution did damage to the plaintiff’s property. (Baughman, at p. 186.) The appellate court held plaintiff could not recover in such a situation because the immunity provision of Government Code section 821.6 precludes liability even if the plaintiff is not the subject of the criminal prosecution. (Baughman, at p. 192.) The statute was adopted by the Legislature to shield law enforcement from the fear of retaliation for misjudgment in the performance of their duties. (Id. at p. 193.)

In Amylou R., the Court of Appeal held the section as well as other statutory immunities apply to any police function up to an arrest. (See Amylou R., supra, 28 Cal.App.4th at p. 1210.) The reason for such broad application of immunity is to recognize the necessary balance between proper police law enforcement and the need for accountability. “To eliminate that fear of litigation . . ., law enforcement officers are granted immunity from civil liability, even for the malicious abuse of their power.” (Id. at p. 1213.) In fact, section 821.6 of the Government Code and its legislative purpose has been held to trump application of Civil Code section 52.1, discussed previously. If we were to apply Civil Code section 52.1 in this case, which we do not do, we would have to acknowledge section 821.6 of the Government Code overrules the application of that Civil Code section. (County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 231.)

DISPOSITION

The trial court engaged in a correct review of the numerous legal principles involved in this unfortunate incident. We therefore affirm the grant of summary judgment.

_________________________

Dondero, J.

We concur:

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Margulies, Acting P. J.

_________________________

Banke, J.

A151297 Prado v. East Palo Alto Police Department