Markowitz v. City of Pasadena

Filed 5/27/10 Markowitz v. City of Pasadena CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph R. Kalin, Judge. Affirmed.

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

Michele Beal Bagneris, City Attorney, Frank L. Rhemrev, Assistant City Attorney, for Defendant and Respondent City of Pasadena.

____________________________

This lawsuit arose from appellant Philip Markowitzs arrest by officers of the Los Angeles Police Department (LAPD), who were acting on a request from the Pasadena Police Department. Appellant sued the City of Pasadena and officers of the Pasadena Police Department (Pasadena defendants), and the City of Los Angeles and LAPD officers (Los Angeles defendants), alleging insufficient probable cause justifying his arrest, and mistreatment by the LAPD during and after the arrest. On the Pasadena defendants motion, the trial court granted summary judgment against appellant as to those defendants.[1] On appeal, appellant argues there were disputed facts as to the probable cause supporting his arrest, and claims that the Pasadena defendants are responsible for the manner in which he was arrested.He also argues the trial court erred in denying his evidentiary objections to portions of the Pasadena defendants declarations filed in support of their motion for summary judgment. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

We take portions of our factual summary from the undisputed facts presented on summary judgment.

At 4:40 a.m. on January 15, 2007,[2]Pasadena Police Officer David Duran went to the apartment of Priscilla Hernandez, who had called the Pasadena Police Department claiming that appellant threatened her life. Hernandez told Officer Duran that she had dated appellant, but since she ended the relationship some two weeks before, appellant had called her numerous times and threatened to kill her. While Officer Duran was at Hernandezs apartment, Hernandez received a call from a restricted number. She said it was appellant, and Officer Duran answered the phone. Officer Duran asked if he was speaking with Philip. A male voice replied he was not, and said [p]ut that bitch on the phone. The caller hung up without being identified, and Officer Duran resumed his interview.

Hernandez told Officer Duran that appellant initially took the news well that she did not want to continue the relationship. Beginning on January 13, she began receiving hang-up calls from a restricted number. On January 14 at 11:45 p.m., Hernandez received a call from a restricted phone number, which she answered. She recognized the caller as appellant. He called her several derogatory and vulgar names, and hung up. He called her twice more during the next hour, the third time saying, Im going to kill you bitch. Hernandez told Officer Duran that appellant threatened to kill her six additional times, and also told her that someone was going to hurt her. Officer Duran checked the call log on Hernandezs two cell phones and found 28 phone calls from a restricted number between January 14 at 11:45 p.m. and January 15 at 4:45 a.m.

Hernandez appeared shaken, and told Officer Duran she feared for her life. She had seen a handgun underneath appellants pillow at his residence. Hernandez gave Officer Duran a description of appellant, and said he lived on Hercules Drive in Los Angeles. Officer Duran returned to the police station and ran a Department of Motor Vehicles (DMV) inquiry based on the name and description Hernandez had given him. He found an individual named Philip Markowitz, with an address on Hercules Drive, who closely matched Hernandezs description of appellant. A gun registration inquiry revealed that the individual at that address had three handguns registered to his name, and a criminal history inquiry showed he previously had been arrested for firearm and domestic battery violations. Officer Robert Christian brought a DMV photograph of the individual to Hernandez, who identified him as appellant.

Based on his interview with Hernandez and appellants gun registration and arrest record, Officer Duran believed there was probable cause to arrest appellant for making a criminal threat (Pen. Code, 422). Sergeant Arthur Chute concurred with Officer Durans probable cause determination, and approved appellants arrest. Officer Christian contacted the LAPD and requested appellants detention at his home on Hercules Drive, while Officer Duran obtained an emergency protective order on behalf of Hernandez and against appellant.

At 7:00 a.m. on January 15, officers from the LAPD arrested appellant at his home. According to appellant, he suffered mistreatment during the arrest, including being misled as to whether there was a warrant for his arrest or the search of his home, being made to stand outside in cold weather, and having his handguns seized illegally. He also claimed that once he was taken to the police station in Hollywood, he was not allowed to make telephone calls and was not given water. At approximately 11:00 a.m. that day, two Pasadena police officers transported appellant to the Pasadena police station where he was booked for a violation of Penal Code section 422. The charges were dismissed in July 2008.

Some months later, appellant sued the Los Angeles defendants and Pasadena defendants. His complaint stated causes of action for false arrest, deprivation of civil rights under color of state law (Civ. Code, 51.7, 52.1), intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent training and/or supervision. The Pasadena defendants moved for summary judgment, contending that because there was probable cause justifying appellants arrest, he could not state a claim for relief. Following a hearing, the trial court granted the motion. ~(RT 9)~ It refused to rule on appellants evidentiary objections because they were not presented in conformity with the California Rules of Court. The trial court found no material facts in dispute, and found that, as a matter of law, probable cause existed for appellants arrest. It also found that the Pasadena defendants were not liable for the conduct of the LAPD. Judgment was granted for the Pasadena defendants against appellant, from which he timely appeals.[3]

DISCUSSION

I

We review the judgment from grant of a summary judgment motion de novo, and are governed by [Code of Civil Procedure] section 437c, which provides in subdivision (c) that a motion for summary judgment may only be granted when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit. The pleadings govern the issues to be addressed. [Citation.] (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1331.) A defendant moving for summary judgment must demonstrate there is no triable issue of fact by producing evidence that demonstrates that a cause of action has no merit because one or more of its elements cannot be established to the degree of proof that would be required at trial, or that there is a complete defense to it. Once that has been accomplished, the burden shifts to plaintiff to show, by producing evidence of specific facts, that a triable issue of material fact exists as to the cause of action or the defense. (Aguilar [v. Atlantic Richfield Co. (2001)] 25 Cal.4th [826,] 849-851, 854-855.) (Ibid.)

II

The existence of probable cause for appellants arrest was dispositive of his claims against the Pasadena defendants. Peace officers are statutorily protected from civil liability for false arrest or imprisonment if probable cause supports the arrest. A claim for a civil rights violation requires interference with a legal right, or violence or intimidation based on membership in a protected class. (See Pen. Code, 847, subd. (b)(1); Civ. Code, 51.7, 52.1.) Appellant does not claim membership in a protected class, and argues that there are disputed issues of material fact as to whether there was probable cause justifying his arrest.

Probable cause to arrest exists when facts known to the arresting officer would lead a reasonable person to have a strong suspicion of the arrestees guilt. (People v. Mower (2002) 28 Cal.4th 457, 473.) Information provided by a crime victim or chance witness alone can establish probable cause if the information is sufficiently specific to cause a reasonable person to believe that a crime was committed and that the named suspect was the perpetrator. (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1045.)

The Pasadena defendants put forward evidence showing that there was adequate probable cause justifying appellants arrest for a violation of Penal Code section 422. A violation of Penal Code section 422 occurs when a threatening statement, on its face and under the circumstances in which it was made, conveyed to the person threatened a gravity of purpose and an immediate prospect of execution. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.) In Officer Durans declaration filed in support of the Pasadena defendants motion for summary judgment, he stated that Hernandez told him appellant had threatened to kill her after she broke off her relationship with appellant. This showed that appellant had a motive to carry out his threat. Hernandez told Officer Duran that appellant owned a firearm, a claim which was later confirmed by Officer Durans gun registration inquiry at the police station. Appellants ownership of three firearms demonstrated his ability to carry out the threat. Hernandez told Officer Duran that appellant had threatened her when calling from a restricted number. Her call logs showed she had received some 28 calls from a restricted number over a five-hour period between 11:45 p.m. on January 14 and 4:45 a.m. on January 15. It was reasonable to infer that appellant made those calls, and the escalation in his aggressive behavior conveyed the prospect of the immediate execution of his threats against Hernandez.

Appellants claim that there are material facts in dispute as to whether there was probable cause justifying his arrest is without merit. Appellant did not offer evidence as to what Officer Duran knew at the time he requested appellants arrest. Indeed, appellant admitted he had no such facts in response to requests for admission propounded on him by the Pasadena defendants. In appellants separate statement of disputed material fact, filed in support of his opposition to the Pasadena defendants motion for summary judgment, he set forth an alternate version of what transpired between him and Hernandez, admitting calling Hernandez once after she had emailed him.[4] This evidence is not material to whether Officer Duran had probable cause to arrest appellant because it does not relate to what Officer Duran knew at the time he requested the arrest. (See Johnson v. Lewis (2004) 120 Cal.App.4th 443, 453-454 [the validity of an arrest is measured by whether the facts known to the officer support a reasonable suspicion of criminal activity, not whether the facts are sufficient to convict].) As the material facts were undisputed, the issue of reasonable cause for arrest became a question of law. (OToole v. Superior Court (2006) 140 Cal.App.4th 488, 511.)

Officer Durans discovery of appellants arrest record and verification of his identity, taken together with Hernandezs statements, provided ample probable cause to justify appellants arrest for making a criminal threat. As the trial court put it, the evidence here is extremely strong that there was probable cause.

As we understand his argument, appellant also claims there are disputed issues of material fact related to his arrest because the Pasadena defendants told the LAPD there was a felony warrant for appellants arrest when none was issued. It does not appear from the record that a warrant had issued for appellants arrest or the search of his home. As we have discussed, there was probable cause for appellants arrest, and any dispute as to the existence of a warrant is not material to appellants claims against the Pasadena defendants. But we note that the gravity and circumstances of appellants alleged threat rendered a warrantless arrest reasonable. (See Pen. Code,  836 [(a) A peace officer may arrest a person . . . without a warrant . . . whenever . . . [] (3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed]; People v. Ortiz (1995) 32 Cal.App.4th 286, 291-292 [Exigent circumstances justifying a warrantless in-home arrest refer to an emergency situation requiring swift action to prevent imminent danger to life].)

III

Appellant argues that the manner of his arrest violated Civil Code section 52.1, which provides a private right of action against any person who interferes with the exercise of an individuals constitution right. He contends that the Pasadena defendants are liable for his mistreatment by the LAPD because they set in motion a chain of events leading to the mistreatment.

In order for an officer to be liable for the violation of [appellants] constitutional rights, that officer must have been either personally involved in that violation or an integral participant in the conduct giving rise to the violation. (Macias v. County of Los Angeles (2006) 144 Cal.App.4th 313, 323.) The Pasadena Police Department officers were not personally involved in any alleged violation of appellants constitutional rights, nor were they integral participants in the arrest. We see no basis for imposing liability on officers for unplanned conduct that they did not engage in or facilitate themselves, and of which they were not even aware. (Id. at p. 324.)

Citing the Restatement of Torts, appellant argues that the Pasadena defendants proximately caused the tortious conduct of the LAPD because the likelihood of the LAPDs actions should have been reasonably foreseeable. We disagree because it would not have been reasonable for the Pasadena defendants to foresee any mistreatment of appellant by the LAPD. Appellant also relies on the so-called but-for rulethat the alleged mistreatment of appellant by LAPD officers could not have occurred but for the request by the Pasadena Police Department. That simplistic approach to causation and liability is not the law and has been thoroughly discredited. (See Rest.3d Torts, 26, com. b, p. 347.)

IV

Appellant argues the trial court abused its discretion in denying his objections to and motions to strike portions of declarations filed by the Pasadena defendants in support of their summary judgment motion. Appellants objections were based on relevancy, lack of personal knowledge, lack of foundation, and hearsay. The transcript of the hearing on the summary judgment motion does not show that appellant requested that the court specifically rule on the objections. But at the hearing, the trial court stated: [L]et me indicate that there [are] objections to evidence in this case. I have read everything in this file. I am not going to rule on these objections to the evidence for the very reason that it was not presented in the appropriate manner to the court. California Rules of Court specif[y] exactly how objections to admissions must be made. You have to set forth what issues youre dealing with, what the evidence is, what the objections are, and then a place for the court to make a ruling. And these papers are somewhat . . . confusing and I had to read them twice to understand what was going on with them. The trial court then went on to grant the motion for summary judgment without ruling on the objections; at no point did appellant request evidentiary rulings at the hearing.

[A] trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections, and if it does not, the objections are deemed waived and the objected-to evidence included in the record. (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 578.) Moreover, objections not presented to the trial court in the form mandated by California Rules of Court, rule 3.1354, are deemed waived. (See Superior Dispatch, Inc.v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 192-193.) Appellant did not object to the evidence in the proper form, and the trial court did not rule on his faulty objections. The declarations are included in the record and any objection is waived.

DISPOSITION

The judgment is affirmed. Respondents to have their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] Although appellants notice of appeal states he appeals from the order granting summary judgment, which is not an appealable order, we deem his appeal to be from the judgment entered against him the following week.

[2] Unless otherwise noted, all dates are in 2007.

[3] The Los Angeles defendants are not party to this appeal. Appellant and Los Angeles defendants signed a stipulation agreeing that the action would be dismissed as to the Los Angeles defendants if we affirm the trial courts judgment.

[4]Among other claims, appellant characterizes Officer Durans declaration as a false statement by attempting to impeach it with supposedly contradictory statements from Officer Durans deposition testimony and crime report. Our review of the record reveals a small number of insignificant and minor discrepancies between the documents which do not relate to the probable cause justifying appellants arrest. Appellant also argues that Officer Duran did not have adequate training to make a probable cause determination, and alleges that Officer Duran failed to follow police procedures. To the extent, if any, that these contentions have merit, they are not material to whether there was probable cause supporting appellants arrest for a violation of Penal Code section 422.