Esteki v. City of Los Angeles

Filed 3/23/07 Esteki v. City of Los Angeles CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from judgments of the Superior Court of Los Angeles County, Michael B. Harwin, Judge. Affirmed in part; reversed in part.

Law Offices of B. Kwaku Duren and B. Kwaku Duren for Plaintiff and Appellant.

Rockard J. Delgadillo, City Attorney, Janet G. Bogigian, Assistant City Attorney, and Amy Jo Field, Deputy City Attorney, for Defendants and Respondents City of Los Angeles, Edward Espinosa, Michael Babel, and John Cudworth.

No appearance by Defendant and Respondent Ross Reghabi.

* * * * * *

Fatemeh Esteki appeals from judgments entered in favor of respondents City of Los Angeles (City) and its employees, police officers Edward Espinosa, Michael Babel and John Cudworth, and Ross Reghabi, an attorney for appellants daughter-in-law. Reghabi went to appellants home accompanied by police officers to serve a family court order. The order required appellants son to vacate the family home, which appellant had quitclaimed to her daughter-in-law. Appellant claimed Reghabi, assisted by respondent officers, demanded that appellant leave the home even though the court order did not mention her, as a result of which appellant fell ill. The trial court granted a summary judgment to the City and officers on appellants claim for violation of civil rights under 42 United States Code section 1983 ( 1983). After hearing the evidence against Reghabi, the court granted Reghabis motion for judgment on appellants causes of action for intentional infliction of emotional distress, abuse of process and violation of civil rights. We conclude the trial court properly entered judgment in favor of the City and Reghabi but erred in granting summary judgment to the officers.

PROCEDURAL HISTORY

Appellant filed a complaint against the City, the officers and Reghabi, among others. In her initial complaint, appellant asserted claims for wrongful eviction against all respondents, abuse of process and negligent misrepresentation against Reghabi, negligent employment training against the City and the officers and intentional infliction of emotional distress against all respondents except the City. The trial court sustained the Citys demurrer to the claim for wrongful eviction without leave to amend and to the claim for negligent employment training with leave to amend.^[1]

In a second amended complaint, appellant abandoned her claim for negligent employment training but added a claim for violation of civil rights under 1983, alleging the City, the officers and Reghabi had violated her due process rights under the Fourteenth Amendment to the United States Constitution. Appellant also claimed the City was liable under Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 (Monell) for depriving appellant of her constitutional right to due process of law pursuant to an official custom, policy or practice.

The court sustained the Citys demurrer to appellants claim for intentional infliction of emotional distress in the second amended complaint without leave to amend, leaving remaining against the City and its officers only appellants claims for violation of civil rights under 1983.

The City and its officers moved for a summary judgment on the 1983 claims, and the court entered a judgment in their favor. The court found appellant had failed to raise a triable issue of fact as to a violation of her right of due process under the Fourteenth Amendment and this failure also negated her ability to establish the Citys liability under Monell.

The matter proceeded to a court trial against Reghabi alone, on claims of intentional infliction of emotional distress, abuse of legal process and violation of civil rights under 1983. After appellant rested her case, the trial court granted Reghabis motion for judgment. (See Code Civ. Proc., 631.8.) The court determined that appellant had failed to meet her burden of proof by a preponderance of the evidence. The court found that a valid court order was in effect at the time of the incident, the police officers did not order anyone to leave the premises, and appellant left the premises with the assistance of her son.

Appellant timely appealed from both judgments.

FACTS

1. Facts Relating to Summary Judgment

Appellant, a 75-year-old Farsi speaking woman in poor health, lived in a home in Tarzana, California with her son. Appellant had purchased the home in 1998 with the help of her children. In September 2001, needing to return to Iran for an extended period, appellant quit-claimed the home to her daughter-in-law, in part because her son was having problems with his creditors. While appellant was in Iran, her son and daughter-in-law commenced dissolution proceedings. Appellant returned from Iran in March 2003. By that time, her daughter-in-law was no longer living in the home. Appellant resumed living with her son in the family home.

In August 2003, a family law judge issued an order in the dissolution proceedings granting the daughter-in-law sole and exclusive use, possession and control of the family residence. The order directed appellants son to vacate the property within [a] reasonable time but no later than 15 days from the date of . . . notice. The court issued a formal written order to that effect in October 2003. The order made no mention of appellant.

As of January 24, 2004, neither appellant nor her son had vacated the residence, and the daughter-in-laws attorney, respondent Reghabi, sought to enforce the court order. Reghabi called the Los Angeles Police Department to come to the family residence with him. Appellant was home alone that day when she heard a knock on her door and someone calling her sons name. According to appellant, when she opened the door, one of the officers placed his foot in the door to prevent her from shutting it. The officer had a paper in his hand. Reghabi, and perhaps one of the officers, entered the house.

Appellant does not speak any English, nor is she able to read English. She was therefore not able to communicate with the officers or read the court order herself. Because appellant spoke only Farsi, the officers did not speak to her. Reghabi told appellant in Farsi, You have to leave the house. . . . The police came to throw you out. According to appellant, Reghabi began to pack appellants luggage.

Appellant became very upset and called her son at work. After speaking with his mother, appellants son spoke with one of the officers. Appellant claimed in a declaration that the officer informed the son he needed to leave work and come and remove his mom from the residence. Appellant admitted the officers were professional and nice and that they did not physically evict her from the home.

After appellants son arrived home from work, he escorted her out of the home. Appellant left the residence with a friend, who took her to a hospital. Doctors at the hospital advised appellant she had suffered a heart attack and that her stomach was bleeding.

2. Additional Facts Developed at Trial

Appellants son testified that he had known of the court order since October 2003. His attorney had advised him of the order and said she would seek to have it vacated. When appellants son returned home after his mothers call on the day of the incident, an officer showed him an order to show cause stating the son had to get out of the house and said that he had to get his mom out of the residence as well.

Appellant testified that respondent attorney Reghabi and the officers came to her house together. The officers knocked on the door and rang the bell. When appellant answered the door, Reghabi told her in Farsi, you just have to leave. She did not talk to the officers as she did not speak their language. The officers and Reghabi poured in after she opened the door. Appellant went into her bedroom, from which she called her son and asked him to return home. Appellant packed her bags, and Reghabi assisted her.^[2] When appellants son returned home, he told her, [t]he police is telling me, mother, we have to leave.^[3] Appellant then left in her friends car. Appellant, who had heart surgery four or five years earlier, looked poorly, so the friend took her to the emergency room. Appellant spent four or five days in the hospital, after which she and her son stayed at a friends home. Appellant testified she did not go back home from the hospital because she was scared that the police would come again.

Appellant called respondent Reghabi as an adverse witness. Reghabi testified that he went to the residence with two private persons, one of whom was to serve the order on appellants son. January 24, 2004, was a Saturday, and Reghabi had expected appellants son to be at home. Reghabi called the police the morning of the incident in order to have protection when the order was served on appellants son. He was unaware that appellant was at the house. He became aware of appellant only when the officers asked him to explain to appellant their presence had nothing to do with her. Reghabi denied ever telling appellant she had to leave the residence.

Two of the officers testified they went to the residence in response to a radio call. They were met by an attorney who showed them a family court order concerning possession of the home. The attorney said he was there to serve the order on appellants son and asked the officers to stand by to keep the peace. The officers informed the attorney they could not order anyone to leave and summoned their supervisor. Officers entered the residence only after appellant asked them to come in and speak to her son on the telephone. The police officers did not order or request appellant to leave the family home. Rather, appellants son informed the officers that his mother was voluntarily leaving the residence and that he was arranging for someone to pick her up from the home.

DISCUSSION

1. The Trial Court Properly Granted Summary Judgment to the City but Not the Officers

Appellant contends the trial court erred in granting the City and the officers a summary judgment.

We review the trial courts decision de novo, considering all of the evidence set forth in the supporting and opposition papers, except evidence properly excluded by the court, and all uncontradicted inferences that are reasonably deduced from the evidence. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) In independently reviewing a grant of summary judgment, we employ the same three-step analysis used by the trial court: we identify the issues framed by the pleadings, determine if the moving party has negated the opposing partys claims and decide whether the opposition has demonstrated the existence of a triable, material issue of fact. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)

To establish a violation under 1983,^[4]a plaintiff must establish: (1) some person has deprived her of a federal right and (2) the person depriving her of that right acted under color of state or territorial law. (See Gomez v. Toledo (1980) 446 U.S. 635, 640.)

Appellant alleged in her second amended complaint that respondents under color of law caused her to be wrongfully removed from her residence without due process of law, thus violating [her] rights under the Fourteenth Amendment to the United States Constitution. She alleged that respondent officers authorized her forced removal when they knew, or should have known,^[5]that the court order did not apply to her and did not authorize her forced removal from the residence.

A. There Was a Triable Issue of Fact Whether the Officers Evicted Appellant Under Color of State Law

The officers contend that it was not enough for appellant to establish that she was deprived of her possessory interest in her home without due process of law to prevail on her due process claim. An essential element of her 1983 claim is a showing the deprivation was accomplished by someone acting under color of state law. Appellant needed to demonstrate that the officers affirmatively intervened and aided in evicting her from the home. (Harris v. City of Roseburg (9th Cir. 1981) 664 F.2d 1121, 1127.) The officers argue that if they simply stood by in case of trouble, as they did in this case, there is no state action and appellants 1983 claim fails as a matter of law. We conclude the evidence with respect to the summary judgment motion raised a triable issue of fact whether the officers affirmatively intervened and aided in appellants removal from her home under color of law.

According to the undisputed evidence, appellant heard a knock at the door and someone calling her sons name. When appellant opened the door, one of the officers placed his foot in it to prevent her from shutting it. Appellant saw the officer had a paper in his hand. Reghabi told appellant in Farsi, You have to leave the house. The police came to throw you out. Reghabi, together with at least one of the officers, entered appellants home. Appellant called her son on the telephone, and her son spoke with one of the officers. According to appellant, the officer told the son he needed to leave work and come and remove his mom from the residence. Appellant claimed Reghabi began to pack her luggage.

On a motion for summary judgment, appellant as the opposing party was entitled to reasonable inferences. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) It could reasonably be inferred from the evidence presented that the officers were assisting Reghabi. The evidence that supports this inference is that the officers, by their conduct in placing a foot in the door, displaying the court order, entering appellants home and standing by while Reghabi started packing her luggage, participated in or assisted Reghabis alleged conduct, causing appellant to leave her home. This is not to say that there is no evidence that supports a contrary inference, nor do we express an opinion which of these inferences is more credible. This is a matter for the trier of fact. We only conclude that on the basis of the evidence before the trial court at the time of the summary judgment motion, it was a question of fact whether appellant was unconstitutionally evicted from her home under color of law.

Because the trial court should not have granted summary judgment to the officers on the evidence before it, the summary judgment in their favor must be reversed.^[6]

B. There Was No Basis for Municipal Liability of the City

Appellant asserts she established a triable issue regarding the Citys liability under 1983 based on a failure to adequately train its officers. Inadequacy of police training may serve as a basis for municipal liability, but only where the failure to train amounts to a deliberate indifference to the rights of persons with whom the police come into contact. (Canton v. Harris (1989) 489 U.S. 378, 388.) There was no evidence that a City policymaker exercised a deliberate indifference to the rights of occupiers of property such as appellant. Moreover,  [m]unicipal liability under 1983 attaches where ‑‑ and only where ‑‑ a deliberate choice to follow a course of action is made from among various alternatives by city policymakers. [Citation.] (Id. at p. 389.) Appellant offered no evidence establishing that City policymakers deliberately chose a training program for its officers that would prove inadequate.

Appellant further contends that the incident in and of itself served as evidence of the Citys failure to train its officers adequately. However, [p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. (Oklahoma City v. Tuttle (1985) 471 U.S. 808, 823-824.) Appellant does not assert there was an existing, unconstitutional municipal policy causing a violation of her civil rights. She asserts respondent officers failed to follow an existing City policy that directed them to scrupulously avoid taking sides in any civil dispute. However, an employees failure to follow proper official policy is insufficient to invoke the Citys liability under 1983. (See Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922, 940.)

Because appellant raised no triable issue of material fact regarding the Citys liability under 1983, the trial court properly granted the City a summary judgment.

2. The Trial Court Properly Granted Reghabis Motion for Judgment

Appellant contends the court abused its discretion in granting a non-suit to Reghabi.^[7] A successful nonsuit motion precludes submission of a plaintiffs case to a jury. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838; see Code Civ. Proc., 581c.) Since this was a court trial, however, principles governing nonsuits are not applicable. Reghabi moved, and the trial court granted, a motion for judgment under Code of Civil Procedure, section 631.8 (section 631.8). Under section 631.8, when a party moves for judgment, [t]he court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party. ( 631.8, subd. (a).) On appeal of a judgment rendered under section 631.8, the substantial evidence standard of review applies, and the trial courts grant of the motion will not be reversed if its findings are supported by substantial evidence. (Roth v. Parker (1997) 57 Cal.App.4th 542, 549-550.) Further, because section 631.8 authorizes the trial court to weigh evidence and make findings, the court may refuse to believe testimony of witnesses at trial. (Ibid.)

Appellants second amended complaint went to trial against Reghabi on causes of action for abuse of process, intentional infliction of emotional distress and violation of civil rights. In granting Reghabi judgment, the trial court determined appellant had not met her burden of proof. Specifically, the court found that there was a valid court order in force at the time of service, the officers did not order anyone to leave the residence and in fact appellants son and others helped appellant to leave. Further, the court implicitly found Reghabis actions in seeking to enforce the court order were reasonable, since the evidence established his client held a quitclaim deed to the residence and the title report showed she held title to the property.

Appellant makes various contentions in arguing that the court erred in granting judgment to Reghabi:

Appellant argues that Reghabi subjected her to an abuse of process. An abuse of process arises when one uses the courts process for a purpose other than that for which the process was designed. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) The essence of the tort is a misuse of the power of the court, an act done in the courts name and under its authority for the purpose of perpetrating an injustice. (Id. at p. 1057.) To establish a cause of action for abuse of process, the plaintiff must demonstrate both (1) a willful act in the use of process not proper in the regular conduct of the proceedings and (2) an ulterior motive. (Ibid.)

In this case, appellant argues that Reghabi, as attorney for the daughter-in-law, prepared and obtained an ex parte order that he knew or should have known did not require appellant to be excluded from the family residence. She claims that Reghabi testified he came to the residence to serve the notice upon appellants son even though he knew the son had the order prior to the incident. She asserts that Reghabis ulterior motive was shown by his seeking to serve the son with a notice that Reghabi knew the son had already received. None of these assertions amounts to an abuse of process. The acts of an attorney in preparing a court order and in causing the order to be served upon a party are part of the regular conduct of court proceedings. The order declared Reghabis client, appellants daughter-in-law, was to have sole and exclusive use, possession and control of the family residence. Reghabi came to the residence accompanied by a process server who was to serve the order on appellants son.^[8] We fail to see any impropriety or ulterior motive in such behavior, even if the son had once already been served with the order.

To the extent that appellant vacated her home as the result of Reghabis attempt to have her son served with the court order, the gravamen of appellants action was Reghabis communicative conduct in attempting to execute the order. As such, Reghabis conduct was subject to the litigation privilege codified in Civil Code section 47. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [absolute privilege applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved]; see also Rusheen v. Cohen, supra, 37 Cal.4th at p. 1065 [if the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct, including acts necessary to enforce the judgment].)

The court determined there was a valid court order in effect on the day of the incident. Appellant asserts that, even if Reghabis obtaining the order may have been privileged, his wrongful conduct in executing the order in such a manner as to cause her to be removed from her home without due process its not. Appellants argument ignores the trial courts finding that appellant was not removed from her home but left voluntarily, escorted by her son. That finding is supported by ample evidence, as set forth ante, in our recitation of the facts. Acts that are privileged also are not actionable on a theory of intentional infliction of emotional distress. (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 640-641; see also Rusheen v. Cohen, supra, 37 Cal.4th at p. 1063.)

Appellant claims Reghabi was liable for violating her civil rights as he was a willing participant in state action and engaged in a joint action with the state. There is substantial evidence to support the courts determination that Reghabi was not a state actor. He summoned the officers merely to stand by while the order was served and keep the peace. Reghabi testified he asked for the police to be present for protection when they served the court order. The officers took no active role and specifically informed Reghabi they had no authority to request anyone to leave. Reghabi reassured appellant that the order had nothing to do with her and concerned only the family divorce case involving her son. At no time did he tell appellant she had to leave the residence. A private party is presumed not to act under color of law. (Sutton v. Providence St. Joseph Medical Center (9th Cir. 1999) 192 F.3d 826, 835.) For private conduct to constitute governmental action, something more must be present. (See Lugar v. Edmondson Oil Co., Inc., supra, 457 U.S. at p. 939; Sutton, at p. 835.) The present case involves a single incident of police consent to stand by in case of trouble, unlike the situation in Howerton v. Gabica (9th Cir. 1983) 708 F.2d 380, 384, where the police were on the scene at each step of the tenants eviction and actively intervened, even making an unsolicited visit to recommend to the tenants that they leave the premises.

Appellant raises addition contentions, none of which has merit.

DISPOSITION

We affirm the judgments as to the City and Reghabi and reverse as to the officers. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

^[1] Appellant does not challenge these rulings on appeal.

^[2] Appellant was impeached on this point with her deposition testimony that Reghabi had merely helped to carry her suitcase as she was trying to drag it across the room.

^[3] At deposition, appellant admitted that when the police was there with my son, . . . my son took me outside and handed me to my friend. When asked, So your son is the person who escorted you outside the house . . . ? Appellant answered, Thats correct.

^[4] Section 1983 provides that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.

^[5] Negligent conduct alone, however, is insufficient to constitute a deprivation of due process under the Fourteenth Amendment in an action under 1983. (Daniels v. Williams (1986) 474 U.S. 327, 328.)

^[6] On remand, the officers are free to renew their motion for summary judgment based on other evidence, including evidence presented at the later trial, and may raise any defense to appellants claims available to them, including any claim that appellant is collaterally estopped from relitigating issues determined with respect to her claims against Reghabi.

^[7] Reghabis application for extension of time to file a respondents brief was denied without prejudice by this court, and he has not filed a respondents brief. We thus determine the appeal as to Reghabi based on the record, the opening brief and appellants argument. (Cal. Rules of Court, rule 8.220(a)(2).)

^[8] Reghabi did not intend to and did not have any direct communication with the son, who was represented by counsel.