Filed 3/5/20 Cotton v. County of San Bernardino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ROBERT A. COTTON,

Plaintiff and Appellant,

v.

COUNTY OF SAN BERNARDINO et al.,

Defendants and Respondents.

E071288

(Super.Ct.No. CIVDS 1700158)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Pacheco, Judge. Affirmed.

Robert A. Cotton, in pro. per., for Plaintiff and Appellant.

Michelle D. Blakemore, County Counsel, and Laura L. Crane, Deputy County Counsel, for Defendants and Respondents.

Plaintiff and appellant Robert A. Cotton filed this civil lawsuit, representing himself, after he was acquitted on a domestic violence charge, alleging that his arrest and prosecution were not supported by probable cause. Cotton appeals from the judgment entered against him on all of his claims, some of which were dismissed after a demurrer to them was sustained without leave to amend, while the remainder were resolved on summary judgment. We affirm the judgment.

I. BACKGROUND

In March 2014, Cotton physically fought with his wife. The responding sheriff’s deputy, Abernathy, interviewed Cotton’s wife in the hospital. She said that she remembered sitting on her bed arguing with Cotton, and that she remembered waking up on the bed with injuries to her head, but nothing in between. Abernathy observed that Cotton’s wife had a lump on her head and a swollen eye. Abernathy also interviewed Cotton, who admitted that he “shook her,” stating that he did so in self-defense after she bit him on the lip. Cotton acknowledged that his wife had hit her head several times on the headboard of the bed when he shook her, causing the lump on her head.

Abernathy arrested Cotton, and he was charged with felony domestic violence. (Pen. Code, § 273.5.) After a jury trial, Cotton was acquitted.

Cotton subsequently filed this action. His second amended complaint (complaint) alleged causes of action for invasion of privacy, false imprisonment, intentional infliction of emotional distress, violation of Civil Code section 51.7, and violation of Civil Code section 52.1.

The trial court overruled defendants’ demurrer to the complaint as to Cotton’s claims for invasion of privacy and false imprisonment, but sustained it without leave to amend as to his other claims. The trial court later granted defendants’ motion for summary judgment on the two claims that had survived demurrer.

II. DISCUSSION

A. Applicable Law

Some of Cotton’s claims were dismissed on demurrer, while others survived until the summary judgment stage. There are, therefore, two applicable standards of review.

1. Demurrer

On appeal from a judgment based on an order sustaining a demurrer, we assume all the facts alleged in the complaint are true. (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 528.) We accept all properly pleaded material facts but not contentions, deductions, or conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 (Evans).)

We determine de novo whether the complaint alleges facts sufficient to state a cause of action under any legal theory. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) “‘Where the complaint’s allegations or judicially noticeable facts reveal the existence of an affirmative defense, the “plaintiff must ‘plead around’ the defense, by alleging specific facts that would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action . . . .”’” (Doe II v. MySpace, Inc. (2009) 175 Cal.App.4th 561, 566.) We read the complaint as a whole and its parts in their context to give the complaint a reasonable interpretation. (Evans, supra, 38 Cal.4th at p. 6.)

When a trial court has sustained a demurrer without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Ibid.) “[U]nless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

2. Summary judgment

Under Code of Civil Procedure section 437c, subdivision (c), a motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. A defendant meets its burden on summary judgment by showing that the plaintiff cannot prove its causes of action, or by establishing a complete defense to the plaintiff’s causes of action. (Id., subd. (p)(2).) The burden then shifts to the plaintiff to show a triable issue of fact material to the causes of action or defense. (Ibid.) Claims and theories not supported by admissible evidence do not raise a triable issue. (Id., subd. (b)(3).)

We evaluate a summary judgment ruling de novo, independently reviewing the record to determine whether there are any triable issues of material fact. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) “In practical effect, we assume the role of a trial court and apply the same rules and standards that govern a trial court’s determination of a motion for summary judgment.” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1258.) In general, we give no deference to the trial court’s ruling or reasoning, and only decide whether the right result was reached. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)

B. Analysis

Each of the causes of action asserted in the complaint rest on the premise that there was no probable cause to justify Cotton’s arrest and prosecution. Cotton has not argued that any of his causes of action might be viable even if his arrest and prosecution were in fact supported by probable cause, nor do any facts that might support such an argument appear in the record. For example, the invasion of privacy he alleges in his first cause of action, is that he “expected privacy in that he was not expected to be arrested without probable cause and without proof that he assaulted his wife.” Cotton contends that he was falsely imprisoned because “[t]here was no basis for the arrest and imprisonment,” and because his prosecution continued even though the prosecutor “knew about the fact that Plaintiff’s wife bit him on the lips first.” Similarly, the acts giving rise to the intentional infliction of emotional distress claim are that he was “falsely arrest[ed]” and then had to defend against criminal prosecution. Cotton’s Civil Code sections 51.7 and 52.1 causes of action, too, are based on the assertion that his arrest was not supported by probable cause, but rather was an act of “violence” motivated by his race.

Cotton’s premise, however, is false. Both the facts pleaded in the complaint and the undisputed evidence submitted at the summary judgment stage demonstrate that the arrest and prosecution were supported by probable cause. We therefore affirm the judgment.

“Probable cause to arrest exists where facts known to the arresting officer would be sufficient to persuade a person of ‘reasonable caution’ that the individual arrested committed a crime.” (People v. Spencer (2018) 5 Cal.5th 642, 664-665.) “[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment . . . .” (Hill v. California (1971) 401 U.S. 797, 804; see People v. Thompson (2006) 38 Cal.4th 811, 820 [same].) Similarly, there is probable cause in support of a criminal prosecution where it is “objectively reasonable for the defendant to suspect the plaintiff had committed a crime.” (Ecker v. Raging Waters Group, Inc. (2001) 87 Cal.App.4th 1320, 1330.) Acquittal on a criminal charge “is not evidence of the lack of probable cause.” (Williams v. Taylor (1982) 129 Cal.App.3d 745, 755; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 743 [“[J]ust as an action that ultimately proves nonmeritorious may have been brought with probable cause, successfully defending a lawsuit does not establish that the suit was brought without probable cause”].)

Here, the evidence establishes that there was ample probable cause to support Cotton’s arrest and prosecution. Cotton’s wife told Abernathy that she did not remember being struck by Cotton, but that she had been arguing with him when she lost consciousness, and she woke up with head injuries, at least some of which Abernathy could see. Cotton admitted to Abernathy that he had shaken his wife, causing her to strike her head and injuring her. Cotton claimed that he had been acting in self-defense, but neither Abernathy nor the prosecutors were compelled to believe him, or to accept that the amount of force that he had used was reasonably necessary under the circumstances. (See People v. Villanueva (2008) 169 Cal.App.4th 41, 49-50 [elements of self-defense include that the defendant used no more force than reasonably necessary to defend against the danger]; CALCRIM No. 3470 [instruction on self-defense].) Cotton’s contention that there was no probable cause to arrest or prosecute him simply because he had asserted that his wife “bit [him] first” is without merit.

Our analysis is no different with respect to the causes of action dismissed at the pleading stage. The facts pleaded include an admission that Cotton engaged in a physical altercation with his wife, albeit framed as a claim of self-defense: “No violence was done by Plaintiff, except in self-defense.” The complaint admits that Cotton’s wife had visible injuries when Abernathy interviewed her. The complaint alleges that Cotton’s wife “bit Plaintiff on his lips first” (italics & bolding omitted), but includes no facts demonstrating that either Abernathy or the prosecutors were compelled to believe Cotton’s contention that she did so, or to accept that the amount of force Cotton used to defend himself was reasonable. Thus, the facts pleaded in the complaint revealed the existence of a defense to the asserted claims, and Cotton failed to “plead around” those facts, so a demurrer was properly sustained. (Doe II v. MySpace, Inc., supra, 175 Cal.App.4th at p. 566.) Additionally, Cotton has proposed no manner in which the complaint could be amended that would demonstrate a lack of probable cause, particularly in light of the circumstance that he failed to produce sufficient evidence in support of that conclusion at the summary judgment stage.

III. DISPOSITION

The judgment is affirmed. Defendants and respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

RAPHAEL

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.

Parties and Attorneys
Robert Cotton v. County of San Bernardino et al.
Case Number E071288
Party Attorney

Robert A. Cotton : Plaintiff and Appellant
P.O. Box 98
San Bernardino, CA 92402 Pro Per

County of San Bernardino (+5) : Defendant and Respondent
Laura L. Crane
Office of the County Counsel
385 North Arrowhead Avenue, 4th Floor
San Bernardino, CA 92415-0103

Office of the State Attorney General : Other