LEVIN v. UNITED AIRLINES

Filed 1/10/08

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Story continued from Part I

[The following DISCUSSION section, part A, is certified for publication]

DISCUSSION

A. The Modified Instruction

Plaintiff contends that the trial courts modified probable cause instructionas it related to the facts necessary for a violation of section 148.1, subdivision (a)^[1]misstated the law and, in effect, directed a verdict in defendants favor. [I]nstructional error requires reversal only where it seems probable that the error prejudicially affected the verdict. ([Soule v. General Motors Corp. (1994) 8 Cal.4th 548,] 580.) The reviewing court should consider not only the nature of the error, including its natural and probable effect on a partys ability to place his full case before the jury, but the likelihood of actual prejudice as reflected in the individual trial record, taking into account (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsels arguments, and (4) any indications by the jury itself that it was misled. (Id. at pp. 580-581.) (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983.)

In connection with plaintiffs seventh cause of action for false imprisonment and arrest,^[2]the parties stipulated that the following version of BAJI 7.66 jury instruction should be read to the jury: If you find that the police officer defendants have reasonable cause to believe that plaintiff made a false report of a bomb, you must find that there was reasonable cause to arrest the plaintiff. If you find that such facts are not true, you must find that there was not reasonable cause to arrest the plaintiff. Because plaintiff was arrested for a violation of section 148.1, subdivision (a), the trial court also read pertinent parts of that statute to the jury.^[3]

During deliberations, the jury submitted the following written question to the trial court: We need further clarification on California Penal Code section 148.1(A) as to intent for Penal Code section 148.1(A). [] If arresting officer had no reasonable belief that the plaintiff was making a false bomb threat by her statement, then has a felony been committed under Penal Code section 148.1, subdivision (a), and did the arresting officer have a legal right to arrest her for this felony?

After an extended discussion between the trial court and counsel about an appropriate response to the jurys question, the trial court decided to read to the jury the following modified instruction: If you find plaintiff stated to police officers, employees of an airline or employees of an airport that a bomb was placed in a public or private place, you must find that there was reasonable cause to arrest the plaintiff. If you find that such facts are not true, you must find that there was not reasonable cause to arrest the plaintiff.

B. Reasonable or Probable Cause^[4]

Certain of plaintiffs claims, such as false arrest, were predicated on the allegation that the officers lacked probable cause to arrest her for a violation of section 148.1, subdivision (a). Defendants successfully opposed those claims at trial by arguing, inter alia, that the facts presented established probable cause for plaintiffs arrest. Plaintiff now challenges the legal sufficiency of the modified instruction on probable cause. Thus, we deal with the criminal law concept of probable cause in the context of a civil action for false arrest.

The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed. (People v. Thompson (2006) 38 Cal.4th 811, 817.) Penal Code section 836, subdivision (a)^[5]provides, A peace officer may arrest a person in obedience to a warrant, or, . . . without a warrant, may arrest a person whenever any of the following circumstances occur: [] (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officers presence. [] (2) The person arrested has committed a felony, although not in the officers presence. [] (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.

Reasonable cause to arrest exists when the 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 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) This is an objective standard. (People v. Adair (2003) 29 Cal.4th 895, 904905 [129 Cal.Rptr.2d 799, 62 P.3d 45].) (OToole v. Superior Court (2006) 140 Cal.App.4th 488, 511.) It is the right to arrest that is being tested. . . . The question with which we are concerned is not why did the officer want to arrest this particular defendant? but rather was there reasonable cause to arrest this particular defendant? The arresting officers secret intentions, hopes, or purposes have nothing to do with the legality of the arrest. The legality [of the arrest] which is based upon reasonable cause is tested by objective standards . . . . (People v. McClure (1974) 39 Cal.App.3d 64, 68; see Gillan v. City of San Mateo (2007) 147 Cal.App.4th 1033, 1045 [Probable cause is measured by an objective standard based on the information known to the arresting officer, rather than a subjective standard that would take into account the arresting officers actual motivations or beliefs].) [S]ufficient probability [that a crime has been committed], not certainty, is the touchstone of reasonableness under the Fourth Amendment. (People v. Thompson, supra, 38 Cal.4th at p. 820.)

In a civil action for false arrest, once a plaintiff establishes an arrest without a warrant, followed by imprisonment and damages, the burden shifts to the defendant to show a justification for the arrest. Upon proof that an arrest and confinement occurred without process and that the plaintiff was damaged, the defendant has the burden of persuasion to prove that the arrest was justified. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 592 & fn. 7 [156 Cal.Rptr. 198, 595 P.2d 975].) (Gillan v. City of San Mateo, supra, 147 Cal.App.4th at p. 1044.)

If the facts that gave rise to the arrest are undisputed, the issue of probable cause is a question of law for the trial court. (Hamilton v. City of San Diego (1990) 217 Cal.App.3d 838, 844; Giannis v. City and County of San Francisco (1978) 78 Cal.App. 3d 219, 224225.) When, however, the facts that gave rise to the arrest are controverted, the trial court must instruct the jury as to what facts, if established, would constitute probable cause. The trier of facts function in false arrest cases is to resolve conflicts in the evidence. Accordingly, where the evidence is conflicting with respect to probable cause, it [is] the duty of the court to instruct the jury as to what facts, if established, would constitute probable cause. [Citations.] The jury then decides whether the evidence supports the necessary factual findings. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)

Based on the foregoing authorities, defendants were not required to show that the facts known to the officers were sufficient to prove that plaintiff actually committed a crime. Rather, it was sufficient to show that the officers were aware of facts that would cause a reasonable person to suspect a crime had been committed. Under this objective standard, the officers actual or subjective belief that plaintiff did or did not commit a crime is irrelevant to the probable cause analysis.

Officer Hayes testified that she arrested plaintiff for making a false report of a bomb. Thus, the determination of whether Officer Hayes had probable cause to arrest plaintiff required the trial court to instruct the jury as to what facts, if established, would constitute probable cause to arrest for a violation of section 148.1, subdivision (a). That process entailed explaining to the jury the elements of a violation of section 148.1, subdivision (a)i.e., the necessary factual findings for a suspected violationand relating those elements to the ultimate issue of probable cause. Accordingly, in conjunction with its original instruction on probable cause, the trial court also instructed the jury on the elements of section 148.1, subdivision (a). Based on the jurys question about the original probable cause instruction and the elements of section 148.1. subdivision (a), the trial court issued a modified instruction. It is the trial courts subsequent attempt to integrate the necessary factual findings for a suspected violation of the statute into the modified probable cause instruction that plaintiff now challenges on appeal.^[6]

C. Elements of the Crime

In support of her challenge to the legal sufficiency of the modified instruction, plaintiff takes issue with the language, If you find plaintiff stated to police officers . . . . She emphasizes that section 148.1, subdivision (a) uses the term reports which, according to plaintiff, connotes more than making a mere statement to police officers, airline employees, or airport employees. Plaintiff alsoconstrues the statute to require a true threat.^[7]As plaintiff reads the statute, the trial courts instruction eliminated the specific intent requirement, as well as the requirement that the listener interpret the remark seriously, and instead allowed the jury to conclude that the mere utterance of the word bomb, without more, could constitute a violation of section 148.1, subdivision (a).

Plaintiffs challenge,directed at the modified probable cause instruction, focuses on the trial courts constructionof section 148.1, subdivision (a). Thus, we must construe that provision.^[8] In construing a statute, our role is to ascertain the Legislatures intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we must look first to the words of the statute because they are the most reliable indicator of legislative intent. [Citation.] If the statutory language is clear and unambiguous, the plain meaning of the statute governs. [Citation.] (People v. Lopez (2003) 31 Cal.4th 1051, 1056 [6 Cal.Rptr.3d 432, 79 P.3d 548].) In other words, if there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and it is not necessary to resort to legislative history to determine the statutes true meaning. (People v. Cochran (2002) 28 Cal.4th 396, 400401 [121 Cal.Rptr.2d 595, 48 P.3d 1148].) (People v. Licas (2007) 41 Cal.4th 362, 367.) We begin by examining the statutes words, giving them a plain and commonsense meaning. (People v. Murphy (2001) 25 Cal.4th 136, 142.)

The statute, as it relates to the facts of this case, has two essential elements. The first element covers [a] person who reports to any peace officer . . . , employee of an airline . . . [or] employee of an airport . . . that a bomb or other explosive has been or will be placed or secreted in any public or private place . . . . In context, the use of the word reports does not as plaintiff suggests, require a formal presentation.^[9] It means relates or tells something to someone (see Websters 3d New Internat. Dict. (2002) p. 1925), as opposed to a comment that is not directed at anyone in particular or is merely overheard. There is no language in the first element to suggest that the statement must be made in the form of a true threat, such that a reasonable person in the position of the recipient of the statement would fear for his safety or the safety of others or that the speaker have the specific intent to have the listeners take the report seriously. All that is required by the plain language of the first element of the statute is a report that a bomb has been placed or secretednothing more.

Unlike the first element, the second element of section 148.1, subdivision (a) does require a specific state of mind, in that the person doing the reporting must know the statement is false. But that is the extent of the scienter requirement. Knowledge of the falsity of that which is reported is not the equivalent of a specific intent to cause fear or harm. Based on the plain language of the statute, it does not matter why the person who made the report did so. All that matters is that the report was made to one of the specified persons or entities, with knowledge that it was false.

When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendants intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent. ([People v.] Hood [(1969)] 1 Cal. 3d [444,] 456-457, 82 Cal.Rptr. 618, 462 P.2d 370.) (People v. Atkins (2001) 25 Cal.4th 76, 82; see People v. Stark (1994) 26 Cal.App.4th 1179, 1182.) Section 148.1, subdivision (a) only describes a particular acta false report that a bomb or other explosive has been placed or secretedwithout reference to doing a further act or achieving a future consequence. Thus, the trial court was not required to instruct the jury concerning plaintiffs intent in making the bomb statements. As a general intent crime, the statute requires that the person intend to communicate that a bomb has been placed or secreted knowing that it has not been.^[10]

Plaintiffs contention that section 148.1, subdivision (a) requires the making of a true threat is further underminedby the Legislatures definition of the term threat in other statutes that expressly include additional elements. (See, e.g. Code Civ. Proc.,  527.8, subd. (b)(2) [defining [c]redible threat of violence as a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose]; Pen. Code,  139, subd. (c) [defining a credible threat as a threat made with the intent and the apparent ability to carry out the threat so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family]; Pen. Code,  646.9, subd. (g) [defining credible threat as a verbal or written threat . . . made with the intent . . . and . . . with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family]; see also Pen. Code,  76, subd. (c)(5) [defining threat as verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family].) If the Legislature intended to include the additional elements of a civil or criminal threat in section 148.1, subdivision (a), it would have done so expressly, as it did in the cited statutes. (See People v. Atkins, supra, 25 Cal.4th at p. 84 [Our analysis must . . . begin with an examination of the statutory language describing the proscribed conduct, including any express or implied reference to a mental state]; Code Civ. Proc.,  1858 [In the construction of a statute . . . the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted . . .].) Because the Legislature omitted from section 148.1, subdivision (a) language similar to that used in the threat statutes, we cannot read the word reports to include the specific intent requirements of a civil or criminal threat.

Plaintiff contends that we should read further constitutional requirements into section 148.1, subdivision (a) because, she asserts, without doing so, the statute would be unconstitutional. Plaintiffs position is that the First Amendment to the United States Constitution requires that section 148.1, subdivision (a) be read to criminalize only true threats. In Watts v. United States(1969) 394 U.S. 705 and in Virginia v. Black (2003) 538 U.S. 343, 359-360, the United States Supreme Court recognized that the First Amendment did not apply to true threats. First Amendment free speech protections do not extend to certain types of speech because such speech is of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. (R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 382.)

The concept of a true threat has no application here. Plaintiff was not arrested for making a threat. (See, e.g., Pen. Code,  422 [prohibiting threats to commit a crime that will result in death or great bodily injury, made with the specific intent that the statement is to be taken as a threat, and which cause the person threatened to fear for his or her safety or the safety of an immediate family member].) She was arrested for making a false report of a bomb. As discussed above, section 148.1, subdivision (a) does not require that the speaker intend to cause fear or harm or that the report cause actual fear or harm. The statute criminalizes falsely uttered words that by their very nature have the inherent potential to cause alarm or disruption if reported to one of the persons or entities identified in the statute. As such, the words prohibited by the statute are similar in nature to the false cry of fire in a crowded theaterthe classic example provided by Justice Oliver Wendall Holmes, Jr.which has been described as a verbal act that is not protected by the First Amendment. (Schenk v. United States (1919) 249 U.S. 47, 51-52; see People v. Bohmer (1975) 46 Cal.App.3d 185, 199; United States v. Rutherford (2d Cir. 1964) 332 F.2d 444, 446; United States v. Irving (5th Cir. 1975) 509 F.2d 1325, 1330-1331; State ex. rel. RT (La. 2001) 781 So.2d 1239, 1243.)^[11] Because the making of a false bomb report to the specified persons or entities is not protected speech, the trial court was not required to read any true threat limitation into section 148.1, subdivision (a). (See People v. Stanistreet (2002) 29 Cal.4th 497, 510 [in upholding statute criminalizing false reports of police misconduct, the court stated the Constitution does not require us to tolerate, knowingly false statements of fact].)

That the words might be said sarcastically or jokingly, or might even be understood as such, does not provide constitutional protection to the falsely stated words involved here. Because of the nature of the words and the statutorily required recipients, the words should not be protected under the circumstances. Neither the police nor the other persons or entities specified in the statute should be put in the position of having to speculate whether the person making the bomb report intended that it be taken seriously or as a joke.

The application of section 148.1, subdivision (a) is limitedto reports to certain governmental, law enforcement, media, and transportation-related personnel. The statute therebyreflects a legislative determination that false bomb reports to the specified persons or entities are by their nature matters tobe taken seriously. Thus, the actual effect on the person to whom the report is made is not an element of the crime. Even if it were, generally the recipients of such a report, because of their positions, would be reasonable in giving credence to such a report.

Plaintiffs reliance on Fogel v. Grass Valley Police Department (E.D. Cal. 2006) 415 F.Supp.2d 1084 is misplaced. Fogel concerned a civil rights action and state law claims against a police department and police officers for an arrest for violations of athreat statute, as well as section 148.1. The court observed that some of the words involved speech that was arguably political expression; the plaintiff claimed to have made the statements in issue to express his disagreement with the Patriot Act and theUnited Statess involvement in the Middle East. (Id. at p. 1086.) In denying plaintiffs motion for summary judgment on the grounds that the speech involved was protected under the First Amendment, the court concluded thatthere was a triable issue of fact as to whether a reasonable person in the plaintiffs position would foresee whether his statements would be interpreted by his listeners as a true threat, as opposed to political hyperbole. (Id. at p. 1087.) The court, however, did not address specifically section 148.1. Instead, the court granted the individual defendants motion for summary judgment based on the qualified immunity doctrine and granted the departments motion on the grounds that there was no showing of an unconstitutional official policy. (Id.at p. 1090.).

In the instant case, plaintiff does not attempt to justify her bomb remarks as any form of protected political expression nor, given the facts, could she. The statute here does not regulate based on disapproval of the ideas expressed. (Loshonkohl v. Kinder (2003) 109 Cal.App.4th 510, 514.) Fogel v. Grass Valley Police Department, supra, 415 F.Supp.3d 1084, therefore, has no application in these circumstances.

Our construction of section 148.1, subdivision (a) is consistent with the construction given similar statutes in other jurisdictions. (See People v. Barron (Ill.App. 2004) 808 N.E.2d 1051, 1055 [In upholding a conviction for making a bomb joke in an airport under a disorderly conductstatute, which prohibited transmitting a false alarm as to a concealed bomb, court said an individual may be found guilty of felony disorderly conduct upon transmission of a false alarm, regardless of the intention of the speaker or the effect the words have upon the person receiving them]; Mustafa v. City of Chicago (7th Cir. 2006) 442 F.3d 544, 548 [In civil action for false arrest based on thestatute at issue in People v. Barron, supra, 808 N.E.2d 1051, court held that there was probable cause to make the arrest because the statute applied categorically to all false bomb threats; [and contained] no element limiting its application to credible bomb threats or to those threats that convince the listener]; State v. Berberian (R.I. 1983) 459 A.2d 928, 931 [It is clearly the intention of the Legislature to protect persons in this state not only from the placing of bombs but from the undesirable effects of the exercise of a macabre sense of humor by those who would make such false reports. . . . The statute is not aimed at pure speech, it is designed to prevent harmful and frightening verbal acts. It is not necessary, therefore, to examine the subjective intention of the author of the false report or the subjective reaction of the recipients. [] We recognize the unique vulnerability of aircraft, airports and public buildings to this kind of threat. The fears that may be engendered, the necessity to clear buildings, alter schedules, and disrupt orderly proceedings amply support the Legislature in curbing such a substantive evil. The practical joker can create as much havoc as the sociopathic malefactor]; but cf. State ex. rel. RT, supra, 781 So.2d 1239 [court suggested that, under a statute making it a crime to make a false bomb report to any person, although specific intent on the part of the speaker was not required, the effect of the false bomb report on a reasonable person similarly situated to the recipient should be considered].)

Plaintiff contends that her comments about a bomb were sarcastic or made in frustration and that they were not intended to be taken seriously, nor were they taken seriously because, inter alia, her bags were not searched until hours after she made the comments. As discussed above, however, even if plaintiffs comments were not intended to be taken seriously or werenot taken seriously, that does not change the analysis under section 148.1, subdivision (a) because neither plaintiffs intent in making the comments nor the actual effect of those comments on the persons who heard them is an element of the crime. Thus, the trial court did not err by not instructing the jury concerning plaintiffs intent in making the comments or the effect of the comments on those who heard them.

Plaintiff also contends that the modified instruction was erroneous because it failed to include the second element necessary for a violation of section 148.1, subdivision (a), i.e., that plaintiff knew her comments about a bomb were false. It is true that the trial court did not include the knowledge requirement in the modified instruction. But because that fact was not controverted, there was no reason to include it in the instruction. (See Pool v. City of Oakland, supra, 42 Cal.3d at p. 1069; Com. to BAJI 7.66 (Spring ed. 2007) p. 380.)

At trial, plaintiff disputed that she ever reported to anyone that there was a bomb in her bag. Thus, the trial court properly included that disputed fact in its modified instruction. But the evidence showed, and plaintiff did not deny, that her comments about a bombwhether intended as sarcasm or notwere not true. Therefore, the trial court did not err by failing to instruct the jury concerning a fact, the existence of which was not in dispute.

[The following DISCUSSION section, parts B through E, is not certified for publication]

B. The Psychiatric Testimony

Plaintiff contends that the trial court erred when it required her to undergo a psychiatric examination during discovery and that the error was compounded by the trial courts subsequent ruling denying her motion to exclude testimony about her psychiatric history. According to plaintiff, the trial courts rulings effectively shifted the focus of the trial to her personal psychiatric history and away from the various defendants conduct and actions, thereby depriving her of a fair trial.

Plaintiffs argument implicates two separate rulings, the first of which was made during discovery. Although the first ruling requiring her to submit to a psychiatric examination may have adversely affected plaintiffs pretrial preparations or other rights during discovery, if it was erroneous, it is difficult to discern how it adversely affected either the trial itself or the resulting verdict and judgment. (Code Civ. Proc.,  906 [the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party . . . .]; see Erikson v. Weiner (1996) 48 Cal.App.4th 1663, 1671.) Even if we agreed with plaintiff concerning the claimed impropriety of the trial courts order requiring her to submit to a psychiatric examination, a determination in her favor on that issue would not result in a reversal of all or even part of the judgment. Because the claimed error during discovery did not prejudice plaintiff at trial, there is no reason to decide the issue on an appeal from the judgment.

The subsequent order denying plaintiffs motion in limine to exclude testimony about her psychiatric history, on the other hand, could have adversely affected the trial on certain causes of action and the resulting judgment if that order was erroneous. But the record shows that plaintiff has forfeited any such claim of error by affirmatively relying on her psychiatric history at trial.

Plaintiff emphasizes that prior to the order compelling the psychiatric examination, she had expressly limited the emotional distress damages she was seeking to those that would ordinarily result from an incident like the one in question, and that she had not retained an expert on emotional distress damages. But, regardless of what efforts plaintiff made during discovery to limit the nature and extent of the emotional distress damages she was seeking, it is clear that by the time of trial she had made a decision to rely on her preexisting personality disorders to show that they were aggravated by the incident. Under direct examination, plaintiffs psychiatric expert was asked what opinions he had been retained to provide. He responded that, in addition to providing testimony in rebuttal to defendants expert, he had evaluated whether plaintiff had any kind of psychiatric condition, whether she had experienced any kind of new psychiatric condition as the result of the incident, and whether any preexisting psychiatric condition may have been exacerbated by the incident. He then testified, inter alia, that in his opinion, plaintiffs preexisting personality disorders had been made worse by the incident. And plaintiffs trial counsel argued in closing argument that her preexisting disorders were aggravated by the incident.

Plaintiff affirmatively relied on her psychiatric history to prove aggravation of preexisting conditions and tried to recover damages based on that evidence. She has therefore forfeited her right to contend that evidence relevant to her psychiatric history should have been excluded. (Romeo v. Jumbo Market (1967) 247 Cal.App.2d 817, 823 [initial objection to admission of written statement waived when party subsequently joined in the offer of the statement containing the objectionable evidence]; Heiman v. Market St. Ry. Co. (1937) 21 Cal.App.2d 311, 315-36 [initial objection to introduction of moving pictures waived when pictures were exhibited again to the jury by the objecting party].)

C. The Exclusion Order

Plaintiff challenges the trial courts order excluding her expert from providing testimony on aviation security and customer service. The trial court excluded the experts testimony on those issues in response to defendants motion in limine, which was based on the experts deposition testimony about his qualifications. Plaintiff claims that because the record on her experts qualifications in those two areas was silent, the trial court was required to hold a section 402 hearing to determine for itself her experts qualifications.

Plaintiff, however, did not oppose the defendants motion in limine on the grounds that a section 402 hearing was required or otherwise request that the trial court hold a section 402 hearing on the issue. She has therefore forfeited her challenge to the trial courts exclusion order by failing to afford the trial court an opportunity to cure the procedural defect about which she now complains. An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. (6 Witkin, [Cal. Procedure (2d ed. 1971) Appeal,] 276, pp. 4264-4265.) (Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.)

D. Punitive Damages

Plaintiff also takes issue with the trial courts order during the pleading stage striking certain punitive damage allegations from her operative complaint. But any arguable error in that pretrial order is harmless because we have affirmed the jurys finding of no liability on the part of any defendant and the judgment based on that finding. Absent a determination that one or more of the defendants is liable, or potentially liable, to plaintiff on a claim that would support the imposition of punitive damagessuch as false imprisonment or invasion of privacyplaintiff would not be entitled to punitive damages even if the allegations had not been stricken. (See United States Nat. Bank v. Bank of America (1963) 214 Cal.App.2d 74, 76 [because trial court ruled that cross-complaint was properly stricken as untimely, appeal of order sustaining demurrer to cross-complaint was moot].)

E. The Cost Awards

Plaintiffs final contention is that the aggregate cost award to defendants in excess of $35,000 is excessive and punitive. According to plaintiff, she should not be responsible for the cost of defendants psychiatric expert who testified at trial or for the cost of another expert who did not testify at trial, notwithstanding defendants pretrial offers to settle the action pursuant to Code of Civil Procedure section 998 (section 998). In addition, plaintiff argues that neither the costs incurred by each defendant for the preparation of a certified copy of the deposition transcript of each of the other defendants nor the costs incurred by each defendant for the preparation of a certified copy of her deposition transcript should have been awarded.

Section 998, subdivision (c)(1) provides in pertinent part: If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, . . . the court . . . , in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or . . . during trial . . . of the case by the defendant. (Italics added.) The determination of whether to award expert costs under this subdivision is within the sound discretion of the trial court and it will not be disturbed on appeal unless there is an abuse of that discretion. It is within the discretion of the trial judge to allow expert witness fees pursuant to section 998, based on failure of an offeree to obtain a more favorable judgment than the settlement offer. In exercising that discretion the trial court must evaluate whether defendants offer was made in good faith and reasonable under the circumstances, and whether fees sought by the offeror are reasonable and justified in amount. (Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 711.) A trial court abuses its discretion when its ruling is arbitrary, capricious, or patently absurd. Where . . . discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (Id. at p. 710, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.)

[W]hen a party obtains a judgment more favorable than its pretrial offer, it is presumed to have been reasonable and the opposing party bears the burden of showing otherwise. [Citation omitted.] (Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1025.) Other than claiming that the defense experts were unnecessary, plaintiff makes no showing that the trial court abused its discretion in awarding expert costs under section 998, nor does any such abuse appear from the record. Therefore, it was not arbitrary, capricious, or patently absurd for the trial court to award the expert witness costs.

The costs incurred by defendants for the preparation of deposition transcripts are recoverable as a matter of right, so long as the depositions were necessary and the cost claimed for the transcripts was reasonable. (Code Civ. Proc., 1033.5, subd. (c)(3); Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1549.) Although plaintiff suggests that it was unnecessary for each defendant to order and pay for a certified copy of the transcript of the depositions of each of the other defendants, and therefore those costs should be excluded, she provides no authority for that proposition. Plaintiffs related suggestion that it was unnecessary for each defendant to order and pay for a certified copy of her deposition transcript is likewise unsupported. It was not unreasonable for the trial court to conclude that each party was entitled to a certified copy of the deposition transcript of each of the other parties. We therefore affirm the trial courts cost award to each of the defendants.

[The Disposition is certified for publication]

DISPOSITION

The appeal as to United is dismissed, but United shall not recover costs on appeal. As to the remaining defendants, the judgment of the trial court is affirmed and they are awarded their costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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^* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of PROCEDURAL BACKGROUND and DISCUSSION, parts B through E.

^[1] Section 148.1, subdivision (a) provides: Any person who reports to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, employee of a fire department or fire service, district attorney, newspaper, radio station, television station, deputy district attorney, employees of the Department of Justice, employees of an airline, employees of an airport, employees of a railroad or busline, an employee of a telephone company, occupants of a building or a news reporter in the employ of a newspaper or radio or television station, that a bomb or other explosive has been or will be placed or secreted in any public or private place, knowing that the report is false, is guilty of a crime punishable by imprisonment in the state prison, or imprisonment in the county jail not to exceed one year.

^[2] [F]alse arrest and false imprisonment are not separate torts. False arrest is but one way of committing a false imprisonment . . . . [Citation.] (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752, fn. 3 [63 Cal.Rptr. 2d 842, 937 P.2d 273].) (Gillan v. City of San Marino(2007) 147 Cal.App.4th 1033, 1048, fn. 6.)

^[3] The instruction to the jury on section 148.1, subdivision (a) read: Any person who reports to any police officer, employee of an airline or employee of an airport, that a bomb has been placed in any public or private place, knowing that such report is false, is in violation of California Penal Code section 148.1(a), which is punishable as a felony.

^[4] The terms reasonable cause and probable cause as used in the context of an arrest appear to be interchangeable. (See e.g. People v. Ingle (1960) 53 Cal.2d 407, 412 [Reasonable or probable cause for an arrest has been the subject of much judicial scrutiny and decision]. We will use the term probable cause because that is the term used in the relevant portions of Penal Code section 836. (See e.g. Pen. Code, 836, subd. (a)(3) [The officer has probable cause to believe that the person to be arrested has committed a felony . . .], italics added.)

^[5] As section 148.1 provides for imprisonment in state prison for a felony (Pen. Code,  17), it qualifies as a felony for purposes of this statute even though it is a wobbleri.e. it can also be punished as a misdemeanor. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901-902, fn. 7 [A wobbler is deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court . . .].)

^[6] See Mustafa v. City of Chicago (7th Cir. 2006) 442 F.3d 544, 547-548 [action by plaintiff for false arrest in which court discussed elements of false bomb threat statute in connection with issue of probable cause].

^[7] For First Amendment purposes, a true threat is made when the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. (Virginia v. Black (2003) 538 U.S. 343, 359.) Later courts have differed over the precise meaning of a true threat. (See, e.g., United States. v. Stewart (9th Cir. 2005) 420 F.3d 1007 [discussing different tests]; United States v. Romo (9th Cir. 2005) 413 F.3d 1044, 1051 [reasonable person must forsee that recipient would interpret words as a serious threat]; United States v. Cassel (9th Cir. 2005) 408 F.3d 622, 633 [speaker subjectively intended speech as threat]; Porter v. Ascension Parish Sch. Bd. (5th Cir. 2004) 393 F.3d 608, 616[objectively reasonable person would understand words as intent to cause harm]; People v. Stanley (Colo.App. 2007) 170 P.3d 782, 788-789.)

^[8] We review the construction of a statute de novo. (Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 531.)

^[9] The definition of the noun reportalso includes statement or account. (Websters 3d New Internat. Dict. (2002) p. 1925.)

^[10] A person whose involuntary epileptic fit caused him to utter the words does not violate the statute. (United States v. Cassel(9th Cir. 2005) 408 F.3d 622, 627.)

^[11] For an audience member to falsely yell fire in a crowded theater is quite different than for an actor to yell the same word in the same crowded theater while reciting the lines of a dramatic production. (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1166.)