Filed 8/27/20 Legaspi v. City of La Verne CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

DAVID LEGASPI et al.,

Plaintiffs and Appellants,

v.

CITY OF LA VERNE et al.,

Defendants and Respondents.

B295822

(Los Angeles County

Super. Ct. No. BC637152)

APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth A. White, Judge. Affirmed.

Mobley Law Office, Felicia A. Mobley, and Thomas E. Maciejewsi for Plaintiffs and Appellants.

Pollak, Vida & Barer, and Daniel P. Barer, for Defendants and Respondents.

* * * * * *

In a late-night encounter near the site of a possible residential burglary, a city police officer used force to get a 17-year-old male into a seated position after the male refused the officer’s repeated commands not to place a call with his cell phone. The male and his 16-year-old sister sued the officer and the city on a variety of legal theories, all of which were premised on the use of excessive force. The trial court granted summary judgment to the officer and city. This was correct, so we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A little before 10 p.m. on a school night in October 2015, David Legaspi (David) and his sister Amanda Legaspi (Amanda) drove to the City of La Verne (the City) to attend a party at a private house. At that time, David was 17 years old; Amanda, 16. David parked around the corner from the house, even though there was street parking available right out front. As they approached the house, they found that the house had no lights on and was “very dark.” They also saw a bunch of kids they had “never seen before.” All of this struck David as “off” and as “a little odd.”

A few minutes before David and Amanda arrived, a concerned neighbor had called the La Verne Police Department (the Department) to report four people lingering in front of the house and “looking into the windows.” The neighbor also reported that the house was “empty.”

The Department dispatched Sergeant Cory Leeper (Sgt. Leeper) to investigate this “possible burglary.”

As Sgt. Leeper drove toward the house in a marked patrol car, he saw David and Amanda walking away from the house. He made a U-turn, pulled up next to them, and rolled down his passenger side window to ask them “what was going on.” David pointed to the house at issue, responded that “there was supposed to be a party down at that house,” and continued that “there isn’t anything going on so we’re going to head home.” Sgt. Leeper instructed David and Amanda to wait on the sidewalk, got out of the patrol car, and told the teens that they were “coming with [him]” back to the house.

At that point, David told Sgt. Leeper that he wanted to “call [his] mom” and pulled his cell phone out of his pocket. When Sgt. Leeper told David, “No, you’re not calling her, anyone,” David insisted that he was “pretty sure” he “ha[d] the right to call [his] mom.” Sgt. Leeper again told him not to do so.

When David persisted in his demands and did not put away his phone, Sgt. Leeper put one hand on David’s left forearm and repositioned it behind David’s back at a 90 degree angle “like a chicken wing”; put a second hand on David’s shoulder; and pushed David downward into a seated position on the curb. The maneuver was “quick,” and Sgt. Leeper let go of David once he was seated on the curb.

Sgt. Leeper did not touch Amanda at all.

Ultimately, Sgt. Leeper issued David and Amanda citations for violating the City’s curfew law for minors.

At the time of this incident, Lieutenant Gary Mason was the Department’s watch commander, and Scott Pickwith was the chief of police.

II. Procedural Background

A. Complaint

In October 2016, David and Amanda (collectively, plaintiffs) initiated litigation based on the above described incident.

In the operative and unverified Third Amended Complaint, plaintiffs sued Sgt. Leeper (in his individual and official capacities), the chief of police (ultimately, in only his official capacity), the Department and the City (collectively, defendants).

By himself, David sued defendants for (1) violating his constitutional rights through the use of excessive force, the use of which was part of a broader City “policy,” “practice[]” and “custom[],” and thus actionable under Title 42, United States Code, section 1983 (Section 1983 claim), (2) violating his “right to be free from excessive force” under the Bane Act, Civil Code, § 52.1, (3) battery, based on Sgt. Leeper’s violation of his duties to “refrain from” “us[ing] no more than a reasonable level of force to detain” him and from touching David “without lawful necessity,” and (4) negligence, including the “negligent use of excessive force.”

Both David and Amanda sued defendants for intentional infliction of emotional distress.

Plaintiffs sought compensatory damages, punitive damages and attorney fees.

B. Summary judgment

Defendants moved for summary judgment. After a full round of briefing and a hearing, the trial court issued a 10-page ruling granting summary judgment in favor of defendants as to all claims. Accepting the facts presented by plaintiffs as true, the court concluded that Sgt. Leeper’s seizure of David did not constitute an excessive use of force because it was “not unreasonable under the circumstances.” The court further concluded that the City’s “policies regarding force confirm that force is only to be used when necessary and to a reasonable degree.” These conclusions also barred plaintiffs’ remaining claims.

C. Appeal

Following the entry of judgment in favor of defendants, plaintiffs filed this timely appeal.

DISCUSSION

Plaintiffs argue that the trial court erred in granting summary judgment to defendants. Summary judgment is appropriately granted “where ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286 (Hartford Casualty Ins. Co.), quoting Code Civ. Proc., § 437c, subd. (c).) In other words, summary judgment is warranted where “the plaintiff has not established, and reasonably cannot be expected to establish, one or more elements of the cause of action in question.” (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 500.) “‘“‘We review the trial court’s decision [granting summary judgment] de novo, considering all of the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.’” [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’ [Citation.]” (Hartford Casualty Ins. Co., at p. 286.) We may affirm on any ground “asserted in the trial court,” even if the trial court did not rely on that ground. (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 636-637.)

I. Claims Against Sgt. Leeper in His Individual Capacity

The trial court properly granted summary judgment in favor of Sgt. Leeper as to all of plaintiffs’ claims for three reasons.

A. The facts construed in David’s favor establish that there was no excessive force as a matter of law

All of plaintiffs’ claims against Sgt. Leeper are premised on the allegation that Sgt. Leeper used excessive force against David within the meaning of the Fourth Amendment of the United States Constitution. (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 805-806 (Zoran) [on summary judgment, “[w]e examine the pleadings to ascertain the elements of the plaintiff’s claim”].) A Section 1983 claim requires proof that a person acting under color of state law has violated the plaintiff’s constitutional rights (Parratt v. Taylor (1981) 451 U.S. 527, 535, overruled on other grounds as stated in Daniels v. Williams (1986) 474 U.S. 327, 330; Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1472), and David’s Section 1983 claim alleges that Sgt. Leeper “used” “excessive force” when detaining him. “Where, as here, [an] excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment . . .” (Graham v. Connor (1989) 490 U.S. 386, 395 (Graham).) David’s allegation that the stop at issue also violated his rights under the California Constitution adds nothing because “California has generally adopted Fourth Amendment jurisprudence for interpreting analogous provisions of the California Constitution.” (People v. Perry (2019) 36 Cal.App.5th 444, 466 (Perry).) The Bane Act requires proof that a person has “interfere[d] by threat, intimidation, or coercion . . . with the exercise or enjoyment . . . of [constitutional] rights” and has done so with the “specific intent to violate the plaintiff’s civil rights” (Civ. Code, § 52.1; B.B. v. County of Los Angeles (2018) 25 Cal.App.5th 115, 133 (B.B.)), and David has alleged that Sgt. Leeper violated his “right to be free from excessive force” (accord, Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 978). A battery claim against a police officer requires proof that the officer acted “‘without lawful necessity’” and hence with “‘more force than was necessary under the circumstances’”—in other words, that the officer used excessive force. (Perry, at p. 467.) A negligence claim requires proof that the defendant breached a duty of care (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62), “peace officers have a duty to act reasonably when using . . . force” (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 629), and David has alleged a breach of that duty. A claim for intentional infliction of emotional distress requires “‘“extreme and outrageous conduct”’” done intentionally or recklessly (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903), and plaintiffs have alleged that Sgt. Leeper’s “outrageous” act was his use of “excessive force.”

Whether a police officer’s use of force in the context of an investigatory stop is reasonable—rather than excessive—requires a “careful balancing of ‘“the nature and quality of the intrusion on the individual’s Fourth Amendment interests”’ against the countervailing governmental interests at stake.” (Graham, supra, 490 U.S. at p. 396.) This balance looks to the totality of “the facts and circumstances,” including (1) “the severity of the crime” that justified the stop, (2) “whether the suspect pose[d] an immediate threat to the safety of the officers or others,” and (3) whether the suspect was “actively resisting arrest or attempting to evade arrest by flight.” (Ibid.; Shafer v. City of Santa Barbara (9th Cir. 2017) 868 F.3d 1110, 1116 (Shafer).) The reasonableness of the use of force is to be judged “objectively” “from the perspective of a reasonable officer [at] the scene, rather than with the 20/20 vision of hindsight.” (Graham, at pp. 396-397.) This perspective “allow[s] for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” (Id. at p. 397.) Thus, a court may consider whether “‘less intrusive alternatives to the force employed’” were “‘available’” (S.B. v. Cnty. of San Diego (9th Cir. 2017) 864 F.3d 1010, 1013), but an officer’s failure to use the “least intrusive degree of force possible” does not render that use of force excessive (Forrester v. City of San Diego (9th Cir. 1994) 25 F.3d 804, 807).

Because a police officer’s “right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it” (Graham, supra, 490 U.S. at p. 396), an officer’s use of force is reasonable as a matter of law if (1) the force used is de minimis, and (2) the injury caused is de minimis. (Parker v. City of Los Angeles (C.D.Cal. 2016) 2016 U.S. Dist. LEXIS 189030, *19 (Parker) [“a de minimis use of force is insufficient to support a claim of excessive force”]; Fisher v. City of Las Cruces (10th Cir. 2009) 584 F.3d 888, 894 [a “de minimis” injury is insufficient to support a claim of excessive force]; see generally Graham, at p. 396 [“‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ . . . violates the Fourth Amendment”].) As a result, courts have concluded that an officer’s use of force is reasonable when the officer used a “‘little shove’” to force a detainee to sit on a curb, even if the detainee fractured his wrists (Parker, at *7, *9, *20-*21); when the officer grabbed a detainee’s hand, twisted her wrist, pulled on her arm to force her to exit her vehicle, handcuffed her and then forced her to sit on a curb, even if the detainee claimed to have experienced “severe pain” in her shoulder, elbow and wrists but provided no “medical . . . evidence to corroborate” her claims of injury (Belcher-Bey v. City of Las Vegas (D. Nev. Mar. 20, 2015) 2015 U.S. Dist. LEXIS 35918, *15-*19); when the officer pulled the detainee out of his car, handcuffed him, and pushed him up against a wall twice, even if the detainee claimed to have suffered temporary nerve damage and pain but provided no medical records to corroborate his claims of injury (Foster v. Metropolitan Airports Com. (8th Cir. 1990) 914 F.2d 1076, 1082-1083); and when the officer used force to handcuff a detainee who stiffened her arm to prevent handcuffing, even if the detainee claimed injury but provided no “medical records” to corroborate that claim (Arpin v. Santa Clara Valley Transp. Agency (9th Cir. 2001) 261 F.3d 912, 921-922). (See also Alexander v. City of Shelby Twp. (E.D. Mich. Oct. 8, 2009) 2009 U.S. Dist. LEXIS 93960, *5-*7 [single use of taser not excessive when no permanent injury resulted]; cf. Payne v. Parnell (5th Cir. 2007) 246 Fed. Appx. 884, 888 [single use of cattle prod to administer electric shock not “de minimis”]; Adamson v. City of San Francisco (N.D.Cal. 2015) 2015 U.S. Dist. LEXIS 124588, *20 [use of “carotid hold” after suspect was disarmed creates triable issue of use of “excessive force”]; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1680-1681 [accepting, without analysis, jury’s finding of excessive force based on use of “compliance hold” in addition to arm twist to “force[] [plaintiff] to the ground”].)

Accepting David’s account of what happened, both Sgt. Leeper’s use of force and the injuries David sustained were de minimis. Sgt. Leeper’s use of force was de minimis because it consisted entirely of a “quick” repositioning of David’s arm behind his back “like a chicken wing” followed by a push into a seated position. The above cited cases have declared greater uses of force than this to be de minimis. Further, the injury David suffered was de minimis. As to his injuries, David testified in his deposition that (1) his arm was “red” and “swollen” but not “black and blue,” (2) he felt pain and soreness in his chest and arm “the next day,” for which he took ibuprofen for a week, and (3) he experienced “flaring [to his] sides.” There was no evidence that any of these conditions persisted beyond a day or possibly a week, and David submitted no medical records to corroborate any of these conditions. These injuries are de minimis as a matter of law. (E.g., Sisneros v. Fisher (D.N.M. 2010) 685 F.Supp.2d 1188, 1208 [“temporary redness or soreness is, as a matter of law, a de minimis injury for the purpose of an excessive-use-of-force claim”]; Tillis v. City of Minneapolis (D. Minn. Nov. 18, 2013) 2013 U.S. Dist. LEXIS 163450, *15-*16 (Tillis) [same]; Marshall v. Milyard (10th Cir. 2011) 415 Fed. Appx. 850, 853 [same]; Seabrooks v. Cooper (D.S.C. Sept. 23, 2008) 2008 U.S. Dist. LEXIS 72883, *15 [“chest pain” is de minimis injury]; Milo v. City of New York (E.D.N.Y. 2014) 59 F.Supp.3d 513, 522 [“temporary discomfort” is de minimis injury]; Tillis, at *15-*16 [injury prompting prescription of ibuprofen, ice and rest is de minimis injury].) Because Sgt. Leeper’s use of force and David’s injuries were both de minimis, that use of force is not excessive as a matter of law.

The propriety of this conclusion is only reinforced if one looks to the other factors bearing on reasonableness. Sgt. Leeper was responding to a possible residential burglary in progress, and burglary is a serious crime. (Lowry v. City of San Diego (9th Cir. 2017) 858 F.3d 1248, 1257-1258 [“[B]urglary is dangerous because it can end in confrontation leading to violence”]; see also Pen. Code, § 1192.7, subd. (c)(18) [listing first degree burglary as a “serious” felony]; id., § 667.5, subd. (c)(21) [listing first degree burglary where an inhabitant is present as a “violent” felony].) A reasonable officer in Sgt. Leeper’s position had a basis to conclude that David might be involved in that burglary and thus pose a safety threat, given that Sgt. Leeper was responding to a report of four possible suspects outside a house, he encountered David (and his sister) walking away from the house at issue, David had chosen to park around the corner from the house despite ample parking in front, David admitted to being at the house, David indicated he was going to “go home,” and David insisted on using his phone to call someone (who may have included the two other possible suspects). That David ended up not being involved—and being cited only for a curfew violation—is irrelevant because it would impermissibly view the encounter through the distorting lens of hindsight. And, as just noted, David was also resisting Sgt. Leeper’s commands not to call anyone by pulling out his phone and insisting that he had a right to make a call. (E.g., Mecham v. Frazier (10th Cir. 2007) 500 F.3d 1200, 1204-1205 [detainee’s acts in “persist[ing] in using a cell phone during the encounter despite [officer’s] instructions to put it down” contributed to finding that detainee was resisting officer’s commands].)

Although the “inquiry” into the reasonableness—or, on the flip side, the excessiveness—of force is “inherently fact specific” and hence “‘should . . . be taken from the jury [only] in rare cases’” (Green v. City & County of San Francisco (9th Cir. 2014) 751 F.3d 1039, 1049), this is one of those rare cases where Sgt. Leeper’s de minimis degree of force and David’s de minimis injury render Sgt. Leeper’s use of force reasonable as a matter of law.

David resists this conclusion by pointing to four different factual disputes that, in his view, constitute triable issues of material fact that preclude summary judgment—namely, that (1) defendants assert in their Separate Statement in support of summary judgment that Sgt. Leeper was responding to a “possible burglary,” but the police records show he was responding to a call about people lingering in front of a house and “looking into the windows”; (2) Sgt. Leeper said David disobeyed an order to sit on the curb, but David testified Sgt. Leeper gave no such order; (3) Sgt. Leeper implied he had a reason to fear for his safety if David called anyone for back-up, but David said Sgt. Leeper had a larger physical stature; and (4) defendants assert in their Separate Statement that Sgt. Leeper “pulled” David down into a seated position, but Sgt. Leeper denied using any force on David in his police report.

None of these disputes precludes summary judgment. The first “dispute” is not a dispute at all because plaintiffs’ allegation in their operative complaint that Sgt. Leeper was responding to a “possible burglary” constitutes a judicial admission that he was, in fact, responding to a possible burglary. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746.) There is no dispute on this point anyway because burglary is the crime that people milling about a house and looking into its windows might be committing. None of the other purported factual disputes is material: Because the grant of summary judgment is based on accepting David’s account of events as true, any dispute between his account and defendants’ account has no bearing on the propriety of granting summary judgment. (E.g., Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1011 [dispute between plaintiff’s and defendant’s evidence is not “material” when plaintiff’s evidence is accepted as true].)

B. As to David’s Section 1983 claim, the facts construed in David’s favor establish that Sgt. Leeper is entitled to qualified immunity

Even if we assume that Sgt. Leeper violated David’s constitutional right against excessive force, Sgt. Leeper has a qualified immunity that precludes his liability for that violation in a Section 1983 claim unless that right was “clearly established at the time of the alleged violation.” (Isayeva v. Sacramento Sheriff’s Dep’t (9th Cir. 2017) 872 F.3d 938, 945; Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 384-385.) A constitutional right is “clearly established” only if it is “‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” (Mullenix v. Luna (2015) 136 S.Ct. 305, 308.) This test looks to the officer’s “particular conduct.” (Shaffer, supra, 868 F.3d at p. 1118.) The precedent set forth above does not “clearly establish” that Sgt. Leeper’s use of force in putting David’s arm behind his back and pushing him into a seated position, when combined with David’s resultant fleeting injury, constitutes excessive force. Sgt. Leeper would accordingly be entitled to qualified immunity. David’s sole response is to ask us to hold off ruling on this issue in the event the United States Supreme Court or Congress decides to revisit the definition of “qualified immunity”; because our duty is to decide cases based on the law as it is rather than the law as it might be changed at some point in the future, we respectfully decline David’s invitation.

C. As to David’s Bane Act claim, there is no evidence that Sgt. Leeper acted with the requisite specific intent

Even if we assume that Sgt. Leeper violated David’s constitutional right against excessive force, David’s Bane Act claim must be rejected as a matter of law because he has adduced no evidence that Sgt. Leeper acted with the “specific intent to violate [David’s] civil rights.” (B.B., supra, 25 Cal.App.5th at p. 133.) The absence of such proof is fatal to this claim.

II. Claims Against the City, the Department, and the Remaining Individuals in Their Official Capacities

The trial court properly granted summary judgment in favor of the City and the Department, as well as the chief of police and Sgt. Leeper in their official capacities (“the City defendants”), for two reasons.

First, and as explained above, all of plaintiffs’ claims against the City defendants rise or fall on whether Sgt. Leeper used excessive force. Because, as also explained above, Sgt. Leeper’s use of force was not excessive as a matter of law, all of plaintiffs’ claims against the City defendants also fail as a matter of law.

Second, David’s Section 1983 claim against the City defendants lacks merit as a matter of law because David did not carry his burden of producing evidence to support a finding that the City defendants had a policy, practice or custom of sanctioning the use of excessive force. Although cities and their officers sued in their official capacities are not vicariously liable under Section 1983 for the constitutional violations committed by their officers (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 829), such defendants may be directly liable under Section 1983 if they have an “official policy, a longstanding [but unofficial] practice or custom, or the decision of a ‘final policymaker’” that sanctions the violation of a plaintiff’s rights at issue if that policy, practice or custom, or decision operates as the “moving force” behind the plaintiff’s injury. (Pitts v. County of Kern (1998) 17 Cal.4th 340, 348-349; Ellins v. City of Sierra Madre (9th Cir. 2013) 710 F.3d 1049, 1066; Gillette v. Delmore (9th Cir. 1992) 979 F.2d 1342, 1348-1349 [to be actionable, a policy must be “‘widespread,’” “‘permanent’” and “‘well settled’”].) Although plaintiffs allege that the City defendants had a policy, practice or custom of sanctioning the use of excessive force, their unverified allegations do not constitute evidence for purposes of a summary judgment motion (Code Civ. Proc. § 437c, subd. (p)(2); Zoran, supra, 185 Cal.App.4th at p. 805), and plaintiffs adduced no other evidence of such a policy, practice, or custom in opposing that motion.

Plaintiffs respond that they had no duty to produce evidence showing an unofficial practice or custom of encouraging the use of excessive force because the City defendants did not carry their initial burden to show the non-existence of such a practice or custom under the summary judgment statute. To be sure, the summary judgment statute employs a burden-shifting mechanism that puts the initial onus on the party moving for summary judgment either to (1) “conclusively negate” one or more elements of a claim or (2) “present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence” to support one or more elements of a claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 (Aguilar).) This burden must be met by looking solely to the evidence presented by the moving party. (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) A moving party’s mere argument that the non-moving party cannot prove a particular element is not enough to carry this burden. (Aguilar, at p. 855.)

Contrary to what plaintiffs argue, the City defendants carried their initial burden to disprove the existence of an unofficial practice or custom. The chief of police submitted a declaration indicating that (1) he was “familiar with the . . . Department’s policies that were in force and effect” on the date of the incident; and (2) the “Department’s Policy that relates to the Use of Force was written in accordance with federal and state constitutional guidelines.” By indicating the Department’s “Use of Force” policy was “written,” the chief of police implicitly denied the existence of any informal, unwritten practice or custom on the same topic. This was sufficient to shift the burden to plaintiffs to produce evidence to the contrary, which is a burden they never carried.

DISPOSITION

The judgment is affirmed. Defendants are entitled to their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P.J.

ASHMANN-GERST

_________________________, J.

CHAVEZ