Meloncon v. City of Long Beach




Filed 3/9/11 Meloncon v. City of Long Beach CA2/2





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MARQUIS MELONCON, Plaintiff and Appellant, v. CITY OF LONG BEACH et.al., Defendants and Respondents.

B219703 (Los Angeles County Super. Ct. No. NC050190)

APPEAL from a judgment of the Superior Court of Los Angeles County. Patrick T. Madden, Judge. Reversed with directions.

Janicemarie Allard for Plaintiff and Appellant.

Robert E. Shannon, City Attorney, and Cristyl Meyers, Deputy City Attorney, for Defendants and Respondents.
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In 2006, appellant Marquis Meloncon (Meloncon) was apprehended for burglary by Long Beach police officers, using a canine unit. He now appeals from the summary judgment granted against him and in favor of defendants, City of Long Beach (City), Joseph Valenzuela (Valenzuela) and Andrew Fox (Fox) (collectively defendants), on Meloncon's complaint, the gravamen of which is that he suffered injuries by reason of the officers' use of excessive force in failing to promptly call off the canine unit after he had been subdued. As to the state causes of action, the motion was made primarily on the ground that Meloncon had failed to comply with the Tort Claims Act (Act) before filing his lawsuit and, as to the federal civil rights cause of action, on the grounds that it was not pled with particularity, the police officers had qualified immunity and the City had no liability under Monell.^[1]
Meloncon contends that (1) his complaint to the Long Beach Police Department (Department) was in substantial compliance with the claim filing requirements of the Act, (2) defendants are estopped from claiming that he did not properly file a government claim, (3) defendants waived their claim that he did not properly file a government claim, and (4) summary judgment was improperly granted on his federal cause of action.
The judgment is reversed with directions.
FACTUAL AND PROCEDURAL BACKGROUND^[2]
The incident
The uncontested facts regarding the incident underlying this lawsuit are as follows: On September 15, 2006, City Police Officers Fox and Valenzuela responded to a residential burglary call. At the scene, the officers identified themselves and requested that anyone hiding in the yard surrender to police before a police dog was released. Having received no response, they released the dog, which located Meloncon hiding. He was arrested for residential burglary, to which he pled nolo contendere and was sentenced to four years in prison.
The operative complaint
Meloncon's operative complaint (amended complaint) contains causes of action for negligence, intentional infliction of emotional distress, battery and state and federal civil rights violations. It alleges that: the Department is an agency of the City; Valenzuela and Fox are police officers employed by the Department; the officers used excessive force against Meloncon; and Meloncon filed a claim with the Department, detailing his grievance and complying with the Act.
The claim form that was alleged to have been submitted was entitled â€