Lara v. Bunch

Filed 3/23/06 Lara v. Bunch CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Rolf M. Treu, Judge. Reversed.

Law Offices of Robert S. Scuderi and Robert S. Scuderi for Plaintiff and Appellant.

Michael P. Stone and Marc J. Berger for Defendant and Respondent.

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Appellant Julio Cesar Lara (Lara) appeals from a judgment entered after the trial court granted the demurrer, without leave to amend, of respondent Daniel Bunch (Bunch) to Lara's second amended complaint for malicious prosecution. We reverse.

CONTENTIONS

On appeal, Lara contends that: (1) the trial court did not find probable cause existed with respect to the actions of Bunch; (2) the pleadings in the original complaint do not preclude his amended complaint alleging malicious prosecution against Bunch as a private citizen; and (3) he is not required to plead facts showing the actions of Bunch were outside the scope of his employment as a police officer.

FACTS AND PROCEDURAL BACKGROUND

The complaint

On July 14, 2003, Lara filed an unverified complaint for damages for false arrest, false imprisonment and deprivation of civil rights against the City of Los Angeles (the City),^[1] Bunch, Jason Chappell (Chappell), Floyd Walton (Walton), Michael Patriquin, John Clark (Clark),^[2] and Daryoush Sameyah.^[3] The complaint alleged the following. On December 20, 2003, during a high school soccer match, a player on the opposing team was injured when he physically contacted Lara. Bunch, the coach of the opposing team, is a police officer employed by the Los Angeles Police Department (the Department), as are the other individual defendants. The defendants unreasonably and unlawfully detained, arrested and incarcerated Lara. On January 27, 2003, Lara was arrested in his classroom on a charge of assault with intent to do great bodily harm. On January 29, 2003, the city attorney for the City filed and issued a misdemeanor complaint for battery against Lara. On March 20, 2003, the case was dismissed by the city attorney on the basis that there was insufficient evidence to support an allegation of the commission of the crime. In their answer to the complaint, defendants pled the affirmative defense of immunity under various Government Code and Penal Code sections.

On May 21, 2004, the defendants filed a motion for summary judgment or summary adjudication on the basis that the individual police officers were entitled to qualified immunity; the individual police officers were immune from liability because probable cause existed for Lara's arrest; and the City was entitled to summary judgment because there was no evidence of an underlying constitutional violation caused by a policy, practice or pattern of the City. In his declaration filed in support of the summary judgment motion, Bunch declared that he is employed with the Department in the gang enforcement detail. He stated that he is the coach for the injured boy's team, and that on the day of the match, two teammates saw Lara intentionally hit the victim in the nose, causing it to break. The two referees did not see Lara punch the victim. On his next work day, Bunch spoke with Clark, head of the juvenile division, who instructed him to have a preliminary investigation report (report) filled out because a possible crime had been committed. Clark told Bunch he would consult with a deputy district attorney assigned to juvenile hall about the incident. Bunch asked Chappell, who interviewed the victim by telephone, to complete an initial report. Bunch drove to the victim's house to give him the report for his review and signature. Clark informed Bunch that the deputy district attorney advised him that the incident could be prosecuted as a crime.

Clark declared that after he reviewed the report, he spoke with a deputy district attorney who informed him that probable cause existed to arrest Lara. Clark assigned Walton, an officer in the juvenile unit, to arrest Lara for felony battery after Walton confirmed the severity of the victim's injury.

After hearing the motion for summary judgment, the trial court granted the motion for summary adjudication as to all defendants, including Bunch. It specifically found that, â€