Neal v.
Filed 5/22/13 Neal v. County of Shasta CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Shasta)
TERESA NEAL,
Plaintiff and Appellant,
v.
COUNTY OF SHASTA et
al.,
Defendants and Respondents.
C066720
(Super. Ct. No. 166096)
Plaintiff
and appellant Teresa Neal claims her civil rights were
violated and her personal property taken when defendant County of Shasta’s
(County) sheriff deputies and SWAT team executed an arrest warrant at her home
for Jess David Woods, with whom Neal owned the home. All of plaintiff’s claims were brought
pursuant to the federal civil rights act ( ADDIN BA xc <@st> xl 18 s
FJPJTH000001 xpl 1 l "42 U. S. C. § 1983"
42 U.S.C. § 1983;
hereafter ADDIN BA xc <@$st> xl 6 s
FJPJTH000001 xpl 1 section 1983). After hearing plaintiff’s evidence, the trial
court granted defendants’ motion for nonsuit.
Plaintiff’s appeal argues the trial
court erred in granting nonsuit. She
argues defendants violated her federal
BA xc <@con> xl 16 s FJPJTH000021 l "Fourth Amendment" Fourth
Amendment rights
they searched her home incident to the arrest of Woods, because Woods was
arrested before the search, making a continued search warrantless. Plaintiff’s version of the order of events is
mere wishful thinking, as all the evidence indicated the arrest of Woods
occurred simultaneous to the sweep search of the home, and Woods was not
conclusively identified until after the sweep search was completed. Citing federal authority that is contrary to California state authority, plaintiff argues the
County had no ADDIN BA xc <@con> xl 18 s
FJPJTH000022 l "Eleventh Amendment"
Eleventh Amendment
immunity for the law enforcement actions of its sheriff’s department. The California Supreme Court has held
otherwise, and we are bound by its authority.
Plaintiff argues she presented
evidence that was sufficient to hold two law
enforcement officers personally liable for taking her property when she
testified that her jewelry was in her home when she left for work in the
morning, and missing after the SWAT team and sheriff’s department concluded
their search. Plaintiff presented no
evidence that either or both individuals took her property, and unless she can
show personal participation in the deprivation of her property, she cannot hold
either of the individual defendants personally liable for violating her
rights.
Moreover, because she has an adequate postdeprivation remedy under the California Tort Claims Act (Gov. Code,
§§ 810-895), she is precluded from recovering under ADDIN
BA xc <@$st> xl 12 s FJPJTH000001 section 1983.
Finally, plaintiff argues the trial
court abused its discretion when it awarded defendants attorney fees as the
prevailing party in a ADDIN
BA xc <@$st> xl 12 s FJPJTH000001 section 1983 action.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 20, 2008, the United States Marshals Service (U.S. Marshals) contacted the Shasta County
Sheriff’s Department regarding a warrant for the arrest of Woods, who was
wanted for a 1993 murder committed in Indiana.
sheriff’s department in serving the warrant.
Defendant Jeff Foster, then a
Lieutenant in the sheriff’s department, received the call in the morning. The officers were briefed that there might be
a female at the property. At the
briefing, the officers were told that Woods was suspected of being the
triggerman in a murder-for-hire, that he was directly associated with an outlaw
motorcycle gang, that he had violent contacts with law enforcement, and that he
had a violent criminal history that included weapons and bombs. Based on this information, the decision was
made to coordinate the effort to serve the warrant with the sheriff’s
department’s SWAT team. The warrant
authorized the officers to enter the premises, buildings, and vehicles to
arrest Woods.
Defendant Craig Tippings, a
sheriff’s deputy, was sent to reconnoiter around Woods’s residence. The residence was a doublewide
mobilehome. Approximately 30 to 45
minutes before the arrest team arrived, Deputy Tippings informed them that
there was a man outside the residence who possibly matched the description of
Woods. He did not know for certain that
the person he saw was Woods, however.
The arrest team arrived at Woods’s
residence in a caravan of vehicles that included a van containing the SWAT
team. The SWAT team entered the
mobilehome at approximately the same time other officers went around to the
back of the mobilehome where Woods was apprehended. The SWAT team made a brief, initial search
throughout the mobilehome, then a secondary search to make sure no one was
hiding inside. Both searches were for
the purpose of securing the officers’ safety.
Neither search involved searching areas where a person could not
hide. Although Woods was apprehended
substantially simultaneously with the SWAT team entry into the mobilehome,
there was no positive identification of Woods until the SWAT team was finished
and ready to leave.
Testimony of
Deputy Tippings
Deputy Tippings was in the car
leading the caravan of officers and SWAT team members to Woods’s
residence. He parked his car on the east
side of the residence, ran toward the back of the mobilehome, and hid behind a
tree. He estimated it took him 20
seconds from the time he left his car to come within view of the shed behind
the mobilehome. During this time he
heard the front door of the mobilehome being breached, and one or two flashbang
devices being deployed.
he first spotted Woods near a shed, Woods had his hands up, and was eventually
taken into custody without a struggle.
Deputy Tippings searched the shed and found a semiautomatic weapon on a
shelf to the right of the door.
Deputy Tippings entered the
residence just as the members of the SWAT team were finishing their sweep of
the mobilehome. He estimated they had
been in the mobilehome only five minutes before he entered. He observed several firearms in plain view.
entered the bedroom with Detective Christopher McQuillan. There was a shotgun leaning against the
wall. He also observed three marijuana
plants. Deputy Tippings did not stay in
the mobilehome long, but stepped out onto the porch. As he did so, the SWAT team was leaving. Deputy Tippings secured the mobilehome, and
no one was left inside. When Detective
McQuillan, who had been dispatched to Redding to obtain a search warrant,
informed Deputy Tippings that the warrant had been issued, he re-entered the
mobilehome with the U.S. Marshals.
Deputy Tippings did not enter the mobilehome any other time, and did not
allow anyone else to enter the premises.
Deputy Tippings did not perform the search pursuant to the second search
warrant. The U.S. Marshals performed the
search, and Deputy Tippings carried the weapons out of the mobilehome and took
photographs.
Deputy Tippings eventually took
possession of all the property taken from the second search and delivered it to
the evidence locker.
Lieutenant
Foster’s Testimony
Lieutenant Foster pulled up to
Woods’s residence. As he approached the
north side of the property, he could hear the SWAT team announcing their
presence at the front door of the residence.
Shortly thereafter, Lieutenant Foster saw Woods exiting the rear of the
residence, apparently in an attempt to get away from the SWAT team that was
coming in the front of the residence.
Lieutenant Foster did not then know that the subject was Woods. He saw something dark in Woods’s right hand,
which Lieutenant Foster believed to be a gun.
Lieutenant Foster commanded Woods to drop his weapon. Woods did not immediately respond, but
hesitated, looked right and left, then stepped partially into a shed. Lieutenant Foster commanded Woods to stop moving. Lieutenant Foster remembered hearing a
flashbang go off in the residence after he told Woods to stop, but before Woods
was subdued. Within a minute after Woods
was handcuffed, the SWAT team advised Lieutenant Foster that the residence was
secure and clear. Approximately three to
four minutes after Woods was handcuffed, the officers were able to identify
him. When the shed was subsequently
searched, a loaded semiautomatic handgun was found where Woods had been.
Before Lieutenant Foster entered the
residence, he was briefed on what the SWAT team had discovered. They told him they had located several
weapons stations at the entry and exit doors and by the windows. At the earlier briefing and again on the
scene, the U.S. Marshals advised Lieutenant Foster that the gun they believed
Woods had used to commit the murder in Indiana was still outstanding. Because of this and because of the multiple
weapons being in the residence of a felon, the decision was made to obtain
another warrant to search the premises.
Lieutenant Foster was in the mobilehome for approximately three to five
minutes after being briefed by the SWAT team, and was at the property a total
of 15 minutes.
Detective
McQuillan’s Testimony
Detective McQuillan received a call
from Lieutenant Foster on the day of Woods’s arrest requesting his assistance
with writing a search warrant, commonly referred to as a Ramey
residence in Whitmore. Detective
McQuillan was not informed prior to preparing the Ramey warrant that Woods was in possession of any weapons or that
there were any associates at the property.
He was provided with Woods’s criminal history, which included possession
of explosive devices and assault weapons.
When Detective McQuillan arrived at
the residence, the SWAT team and the U.S. Marshals were outside the
residence. He entered the residence by
the back door and inspected inside. His
inspection was for the purpose of writing a second warrant. When he left, the SWAT team was still there. He went back to Redding to obtain the second
warrant, which was signed at 4:10 p.m.
When he arrived back at the residence around 5:00 p.m., plaintiff was
there and was being interviewed by Deputy Tippings.
Detective McQuillan entered the
mobilehome and looked at the three marijuana plants, but did not enter any
other rooms. The only person he saw in
the mobilehome was Deputy Tippings.
Detective McQuillan did not personally take possession of any property
or inventory the property, but he did sign the return of the second warrant.
Plaintiff’s
Testimony
Plaintiff arrived while the officers
were waiting for the second warrant.
Plaintiff testified she had numerous items of jewelry that were in her
home when she left for work in the morning and gone after the search. Plaintiff submitted a handwritten list of
over 24 pieces of missing jewelry made of gold, diamonds, and gems.
Plaintiff’s original complaint named
as defendants the County, Tom Bosenko individually and as the Sheriff of Shasta
County, Christopher McQuillan, Larry Fitch, Jeff Foster, Craig Tippings, and
Steven Berg. All individually named
defendants were sued both individually and in their capacity as law enforcement
officers for the sheriff’s department.
Plaintiff alleged against all defendants a federal civil rights
violation pursuant to ADDIN
BA xc <@$st> xl 12 s FJPJTH000001 section 1983, a state
rights violation, and negligence.
Plaintiff dismissed all individual defendants except McQuillan, Foster,
and Tippings, and also dismissed the state civil rights and negligence causes
of action. This leaves for our
consideration, a ADDIN BA xc <@$st> xl 12 s
FJPJTH000001 section 1983 action against the County and
McQuillan, Foster, and Tippings, both individually and as officers in the
sheriff’s department. However, plaintiff
does not assert on appeal that there was any error in the judgment with respect
to defendant Foster.
DISCUSSION
We review the grant of a motion for
nonsuit de novo. ( ADDIN BA xc <@cs> xl 54 s
FJPJTH000002 xhfl Rep xpl 1 l "
Cal.App.4th 1390, 1394-1395" Fields v. State of California (2012) 209 Cal.App.4th 1390,
1394-1395.) We use the same standard
as the trial court, i.e., we must determine as a matter of law that the
evidence presented by the plaintiff is insufficient to permit a jury to find in
her favor. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.) We do not weigh the evidence, but interpret
all the evidence most favorable to the plaintiff’s case and resolve all
presumptions, inferences, and conflicts in the evidence in favor of the
plaintiff. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)
I
Sheriff’s Department is Immune from
Liability
A county sheriff’s department and
sheriff act on behalf of the state when performing law enforcement activities,
and therefore enjoy the state’s immunity from prosecution for asserted
violations of ADDIN BA xc <@$st> xl 12 s
FJPJTH000001 section 1983 when performing such
functions. ( ADDIN BA xc <@cs> xl 64 s
FJPJTH000003 xhfl Rep xpl 1 l "
(
ADDIN BA xc <@$cs> xl 7 s FJPJTH000003 xpl 2 Venegas).) The California Supreme Court has held that
the doctrine of sovereign immunity protects a county sheriff’s department
against causes of action under ADDIN
BA xc <@$st> xl 12 s FJPJTH000001 section 1983 for unreasonable search and
seizure. ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Venegas,
supra, at p. 828.) Accordingly, the
trial court correctly granted nonsuit in favor of the County.
Plaintiff presents a vague argument
that ADDIN BA xc <@$con> xl 18 s FJPJTH000022
Eleventh Amendment
immunity does not protect the County.
She cites a federal Ninth Circuit case, which held that a county sheriff
acts on behalf of a county, rather than the state, when performing law
enforcement functions. ( ADDIN BA xc <@cs> xl 92 s
FJPJTH000004 xhfl Rep xpl 1 l "
Bishop Paiute Tribe v. County of Inyo (9th Cir. 2002) 291 F.3d 549,
vacated on other grounds and remanded in ADDIN
BA xc <@cs> xl 122 s FJPJTH000005 xhfl Rep xpl 1 l "Inyo County v.
Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony (2003 538 U.S. 701 [155 L.Ed.2d 933].)" Inyo County v. Paiute-Shoshone Indians of the Bishop Cmty. of the
Bishop Colony (2003) 538 U.S. 701 [155 L.Ed.2d 933].) However, the California Supreme Court
considered this case when it decided ADDIN
BA xc <@$cs> xl 14 s FJPJTH000003 xhfl XRef xpl 1 Venegas and concluded that it did not accurately reflect
law. ( ADDIN BA xc <@$cs> xl 36 s
FJPJTH000003 xhfl Rep xpl 2 Venegas,
state or county when acting in a particular capacity is analyzed under state
rather than federal law. ( ADDIN
BA xc <@$id> xl 13 s ID xhfl Rep xpl 2 Id.
at p. 831.) The decisions of federal
appellate courts are not persuasive where they are contrary to California
Supreme Court authority. ( ADDIN BA xc <@cs> xl 49 s
FJPJTH000006 xhfl Rep xpl 2 l "
Cal.App.4th 780, 801" In
re Bettencourt (2007) 156 Cal.App.4th 780, 801.)
Plaintiff also cites ADDIN
BA xc <@cs> xl 96 s FJPJTH000007 xhfl Rep l "Monell v. Department of
Social Services of City of New York
(1978)
658 [56 L.Ed.2d 611] ( ADDIN BA xc <@$cs> xl 6 s
FJPJTH000007 xpl 1 Monell),
for the proposition that municipal entities may be held liable as persons. However, ADDIN
BA xc <@$cs> xl 6 s FJPJTH000007 Monell
held merely that local governing bodies are “included among those persons to
whom ADDIN BA xc <@$st> xl 6 s
FJPJTH000001 [section] 1983 applies†and that they can be
sued “for monetary, declaratory, or injunctive relief where . . . the action
that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 690, fn. omitted.) ADDIN
BA xc <@$cs> xl 6 s FJPJTH000007 Monell
itself recognized that its holding was “limited to local government units which
are not considered part of the State for ADDIN
BA xc <@$con> xl 18 s FJPJTH000022 Eleventh Amendment purposes.†( ADDIN BA xc <@$id> xl 21 s ID
xhfl Rep xpl 1 Id.
at p. 691, fn. 54.) Because the
sheriff’s department of the county is considered part of the state when
performing law enforcement functions, ADDIN
BA xc <@$cs> xl 6 s FJPJTH000007 Monell
is not applicable here.
Plaintiff argues “[t]here are
several methods of establishing municipal liability besides the final
policymaker argument that Defendant’s proffered in their motion.†Plaintiff explains that a “municipality may
also be held liable for a policy custom or practice that is a de facto policy
of its employees, even though the custom may not be formally adopted.†This argument begs the question. An unconstitutional de facto policy of a
state governmental unit that enjoys sovereign immunity by virtue of the ADDIN
BA xc <@$con> xl 18 s FJPJTH000022 Eleventh Amendment
cannot be sued for a de facto policy any more than it can be sued for an
official policy.
To the extent plaintiff contends
that the remaining defendants McQuillan, Foster, and Tippings are liable for
the unlawful search incident to arrest, there was no evidence presented that
these defendants participated in the search.
Lieutenant Foster and Deputy Tippings did not enter the mobilehome until
the members of the SWAT team were finishing their sweep. Detective McQuillan did not arrive at the
residence until the SWAT team had left the mobilehome.
II
Search Did Not Violate ADDIN
BA xc <@$con> xl 16 s FJPJTH000021 Fourth Amendment
Having determined that the county
sheriff’s department is immune from suit, the question remains whether the
trial court properly granted nonsuit as to plaintiff’s ADDIN
BA xc <@$con> xl 16 s FJPJTH000021 Fourth Amendment claims against the
individual defendants for the search that followed the initial search incident
to arrest. Plaintiff claims that all
intrusions during the period between the time the arrest warrant was completed
and the second search warrant was signed at 4:10 p.m. constituted a violation
of her ADDIN BA xc <@$con> xl 16 s
FJPJTH000021 Fourth Amendment rights.
The initial search of the home was
valid, and the subsequent search was justified because of the firearms in plain
view that were found during the initial search.
Therefore, there was no ADDIN
BA xc <@$con> xl 16 s FJPJTH000021 Fourth Amendment violation.
Plaintiff’s argument is premised on
her claim that the initial search was invalid because the officers had no right
to enter the home after the arrest of Woods was completed. This argument is based on ADDIN
BA xc <@cs> xl 61 s FJPJTH000008 xhfl Rep l "Maryland v. Buie (1990)
“limited protective sweep in conjunction with an in-home arrest when the
searching officer possesses a reasonable belief based on specific and
articulable facts that the area to be swept harbors an individual posing a
danger to those on the arrest scene.†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 337.)
Plaintiff claims the rule of law set
forth in ADDIN BA xc <@$cs> xl 4 s
FJPJTH000008 Buie results
in the conclusion that the search incident to arrest was unlawful because the
evidence in this case indicates that the arrest was concluded
mobilehome, and there were no facts indicating someone in the mobilehome was a
danger to the arresting officers.
However, the evidence plaintiff cites to support her claim that the
sweep took place after the arrest consists entirely of inferences drawn from
police reports or pleadings in another case, none of which were admitted into
evidence.
Instead, the testimony of every
officer indicated the entry into plaintiff’s mobilehome was virtually
simultaneous with the capture of Woods, and that Woods was not identified until
the initial search was complete.
Lieutenant Foster testified that the
SWAT team officers were at the front of the line of vehicles travelling to the
residence because they were designated as going in first to secure the
scene. Before Lieutenant Foster saw
Woods he heard the SWAT team making their entrance at the front door. Lieutenant Foster did not see Woods
immediately when he exited his car, but spotted him a few seconds
thereafter. Lieutenant Foster was not
sure at that time that the person he saw behind the mobilehome was Woods. When Lieutenant Foster spotted Woods, Woods
was making a hasty exit from the back door of the mobilehome trying to get away
from the entering SWAT team, and he appeared to be armed. Lieutenant Foster heard one flashbang device
go off before Woods was in custody, as he was telling Woods to stop and drop
his weapon. He heard the SWAT team
moving around in the mobilehome before and during the time Woods finally
dropped to the ground. Lieutenant Foster
estimated he was advised the residence was secure approximately 30 seconds to a
minute after Woods had been handcuffed.
The officers were able to confirm Woods’s identity approximately three
to four minutes after he was handcuffed.
The search of the mobilehome was completed long before Lieutenant Foster
learned that Woods was the person in custody.
Deputy Tippings was not sure that
the person he had seen outside the mobilehome was Woods. He testified that after the caravan of law
enforcement officers arrived at the residence, it took him about 20 seconds to
get from his vehicle to a position from which he could see Woods. During this time he heard the SWAT team
announce their presence, go in the front of the mobilehome, and deploy one or
two flashbang devices.
Deputy Steven Berg testified that he
heard the flashbangs at the same time he observed Lieutenant Foster giving
commands to someone at the rear of the mobilehome. Multiple things were happening at the same
time. He did not ever recall hearing anyone
say that the suspect was in custody.
Undersheriff Greg Wrigley, who eventually
took Woods into custody, testified he heard the SWAT team announce their
presence and enter while he was standing at the van, before he went around the
side of the mobilehome. He heard the
flashbang devices go off close to the time the officers were giving Woods
orders.
Sergeant Thomas Bertain, who was
part of the SWAT team that entered the mobilehome, testified he never heard any
officer outside giving directions to the suspect. They had already conducted their search when
the person arrested outside was identified as Woods.
Deputy Eric Magrini also was part of
the SWAT team. He testified he heard
that the suspect was in custody after they finished their complete operation
inside the mobilehome. He did not hear
anyone commanding the suspect while they were in the mobilehome.
Sergeant Jose Gonzalez testified he
saw the team enter the mobilehome at about the same time the person was being
taken into custody in the back. The
person was first identified as a male suspect at about the time the team was
entering the front. There was no
indication yet that the male suspect was Woods, and they had no idea how many
people might be in the residence.
Sometime while the SWAT team was in the process of sweeping the
mobilehome, he heard that the person in back was in custody. The person was not positively identified as
Woods until the search was done and they were ready to leave.
Lieutenant Foster was briefed that
it was possible that there would be a female at the home. He had no information whether there were
other males present at the home. Deputy
Tippings was informed by the U.S. Marshals that Woods had a live-in girlfriend
and that she might be in possession of firearms.
Lieutenant Foster had been briefed
that Woods had previously had violent contacts with law enforcement and that he
had a violent criminal history that included weapons and bombs. He considered this arrest highly dangerous.
None of the officers testified that
Woods was arrested and identified before the SWAT team searched the mobilehome. There was no evidence that Woods was already
in custody and identified before the SWAT team entered the mobilehome. There were, on the other hand, articulable
facts indicating the need to secure the premises for the safety of the
officers. These facts were that when the
SWAT team entered they did not know where Woods was, or how many people were in
the mobilehome. They knew that Woods’s
live-in girlfriend, the plaintiff in this case, might be in possession of
firearms. Furthermore, they had information
that Woods had a violent criminal history that included weapons and bombs. There was no evidence from which a jury could
have concluded that the initial sweep search was unwarranted because Woods’s
arrest had been completed before the entry into the mobilehome and there was no
danger to the officers posed by anyone in the mobilehome.
Once in the mobilehome the officers
saw several firearms in plain sight. At
that point they were authorized to seize any incriminating evidence observed in
plain view. ( ADDIN BA xc <@cs> xl 67 s
FJPJTH000009 xhfl Rep xpl 1 l "
U.S. 128, 133-137 [110 L.Ed.2d 112]" Horton v. California (1990) 496 U.S. 128, 133-137 [110 L.Ed.2d 112].) The firearms also supported a finding of
probable cause to issue a search warrant for the premises. Probable cause is established where “there is
a fair probability that contraband or evidence of a crime will be found in a
particular place.†( ADDIN BA xc <@cs> xl 42 s
FJPJTH000010 xhfl Rep xpl 1 l "
U.S. 213, 238" Illinois v. Gates (1983) 462 U.S. 213, 238 [ ADDIN BA xc <@oppt> xl 19 s
FJPJTH000024 xpl 2 l "76 L.Ed.2d 527, 548"
76 L.Ed.2d 527, 548].) It is a crime for a person who has been
convicted of a felony to possess a firearm or have a firearm in their
possession or custody or control. ( ADDIN BA xc <@st> xl 18 s
FJPJTH000011 xpl 2 l "Penal Code § 29800"
Pen. Code, § 29800.) The firearms in Woods’s residence were
evidence of a crime, thus constituted probable cause for the issuance of the
second warrant. Consequently, the
actions of the officers subsequent to discovering the firearms in plain sight
during the initial sweep search did not violate plaintiff’s ADDIN
BA xc <@$con> xl 16 s FJPJTH000021 xpl 1 Fourth Amendment
rights.
III
No Section 1983 Claim for Missing Property
Plaintiff argues the trial court
erred in ruling that there was insufficient evidence for a jury to find the
individual officers Tippings or McQuillan stole her jewelry. The trial court’s judgment of nonsuit found
that there was no substantial evidence that any individual defendant stole
anything from plaintiff. The trial court
stated on the record that there was insufficient evidence to go to the jury on
a theory of theft or conversion of property.
It opined: “You cannot take a
group of people who had the opportunity to steal something, and because you’re
unable to identify who the true culprit or culprits are, pick a few out and
accuse them of theft.â€
To prove a case under ADDIN
BA xc <@$st> xl 12 s FJPJTH000001 section 1983, a plaintiff must demonstrate
that (1) the government’s action occurred under color of state law, and (2) it
resulted in the deprivation of a constitutional right or federal statutory
right. ( ADDIN BA xc <@cs> xl 87 s
FJPJTH000012 xhfl Rep xpl 1 l "
U.S. 527, 535 [68 L.Ed.2d 420], overruled on other grounds" Parratt v. Taylor (1981) 451 U.S. 527, 535 [68 L.Ed.2d 420] (
by ADDIN BA xc <@cs> xl 56 s
FJPJTH000013 xhfl Rep xpl 1 l "
U.S. 327 [88 L.Ed.2d 662]" Daniels v. Williams (1986) 474 U.S. 327 [88 L.Ed.2d 662].) “In order for a person acting under color of
state law to be liable under ADDIN
BA xc <@$st> xl 12 s FJPJTH000001 section 1983 there must be a showing of
personal participation in the alleged rights deprivation: there is no respondeat superior liability
under ADDIN BA xc <@$st> xl 12 s
FJPJTH000001 section 1983.†( ADDIN BA xc <@cs> xl 42 s
FJPJTH000014 xhfl Rep xpl 1 l "
F.3d 930, 934" Jones v. Williams (9th Cir. 2002) 297 F.3d 930, 934.) Personal participation can be found if a person
was either personally involved in the violation of a right, or was an integral
participant in the conduct giving rise to the violation. ( ADDIN BA xc <@cs> xl 63 s
FJPJTH000015 xhfl Rep xpl 1 l "
Nevertheless, to hold the officers
here individually liable for plaintiff’s missing property, there must be some
evidence from which a jury could draw a reasonable inference that the officer
was personally responsible for taking the property. No such evidence was presented, and the trial
court correctly determined that the jury could not draw a permissible inference
of individual liability from the mere fact that the jewelry was present before
the search and missing after the search.
Moreover, a defendant’s random and
unauthorized deprivation of a plaintiff’s property does not result in a
violation of procedural due process if there is an adequate state postdeprivation
remedy. ( ADDIN BA xc <@$cs> xl 28 s
FJPJTH000012 xhfl Rep xpl 1 Parratt, supra, 451
U.S. 527
ADDIN BA xc <@oppt> xl 11 s FJPJTH000025 xpl 2 l "68 L.Ed.s2d" ; ADDIN BA xc <@cs> xl 58 s
FJPJTH000016 xhfl Rep xpl 1 l "
U.S. 517, 533 [82 L.Ed.2d 393]" Hudson v. Palmer (1984) 468 U.S. 517, 533 [82 L.Ed.2d 393].)
In ADDIN
BA xc <@$cs> xl 14 s FJPJTH000012 xhfl XRef Parratt
an inmate alleged that prison employees negligently lost a package sent to him
while he was in segregation and not allowed to receive it. (Parratt,
supra, ADDIN BA xc <@$cs> xl 18 s
FJPJTH000012 xhfl Rep xpl 1 451 U.S. at p. 530.) The
court noted that the deprivation of property did not occur as a result of an
established state procedure, but as a result of the unauthorized failure of
agents to follow established procedure.
(
ADDIN BA xc <@$id> xl 13 s ID xhfl Rep xpl 1 Id.
at p. 543.) It concluded that the state
(Nebraska) provided a remedy to persons who suffered a tortuous loss at the
hands of the state. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.) These remedies were sufficient to satisfy the
requirements of due process.
xhfl Rep xpl 1 Id.
at p. 544.) ADDIN
BA xc <@$cs> xl 23 s FJPJTH000016 xhfl XRef Hudson v. Palmer specifically applied the holding in ADDIN
BA xc <@$cs> xl 7 s FJPJTH000012 Parratt
to an intentional deprivation of property effected through a random and
unauthorized conduct of a state employee.
(Hudson v. Palmer, supra, ADDIN
BA xc <@$cs> xl 29 s FJPJTH000016 xhfl Rep xpl 1 468 U.S. 517.) Thus, neither a negligent nor an intentional
deprivation of property will state a claim under ADDIN
BA xc <@$st> xl 12 s FJPJTH000001 section 1983 if the state has an adequate
postdeprivation remedy. ( ADDIN
BA xc <@$id> xl 13 s ID xhfl Rep xpl 1 Hudson
v. Palmer, supra, at p.
533.) ADDIN
BA xc <@st> xl 52 s FJPJTH000017 l "California’s Tort Claims Act (Gov. Code, §§ 810-895)" California’s Tort
Claims Act (Gov. Code, §§ 810-895) provides an adequate postdeprivation
remedy for any property deprivation.
IV
Attorney Fees Were Properly Awarded
ADDIN
BA xc <@st> xl 48 s FJPJTH000018 l "Title 42, section 1988 of the United States Code" Title 42, section
1988, of the United States Code provides in part that a court may in its
discretion allow the prevailing party reasonable attorney fees in any action to
enforce a provision of ADDIN
BA xc <@$st> xl 12 s FJPJTH000001 section 1983. Where, as here, the prevailing party is a
defendant, attorney fees are awarded only where the “ ‘claim was
frivolous, unreasonable, or groundless, or . . . the plaintiff continued to
litigate after it clearly became so.’ â€
(
ADDIN BA xc <@cs> xl 58 s FJPJTH000019 xhfl Rep xpl 1 l "Hughes v. Rowe (1980)
We review the trial court’s award of
attorney fees for an abuse of discretion.
(
ADDIN BA xc <@cs> xl 78 s FJPJTH000020 xhfl Rep xpl 1 l "Robbins v. Regents of
University of California (2005)
Cal.App.4th 653, 665" Robbins
v. Regents of University of California (2005) 127 Cal.App.4th 653, 665.) The trial court found that plaintiff’s
pursuit of the action was not entirely unreasonable until the completion of
pretrial discovery, but that after that time the prosecution of the action was
frivolous, unreasonable, and without foundation. Consequently, the trial court awarded
defendant the County attorney fees in the amount of $15,525.00.
Plaintiff argues her claim was not
frivolous because the “issue of when police can continue a sweep is disputedâ€
and the trial court ignored the fact that Deputy Tippings placed the suspect in
the backyard before the officers conducted their initial sweep search. Rather it is plaintiff who ignored the
following facts: (1) that Deputy
Tippings did not positively identify the subject he spotted as Woods, (2) that
Deputy Tippings saw the person later identified as Woods some 30 to 45 minutes
before the search team arrived, (3) that the person later identified as Woods
was in the mobilehome when the search team arrived and was first spotted
exiting the back door, and (4) that the entry of the search team into the
mobilehome was virtually simultaneous with the capture of Woods, and occurred
before Woods was positively identified.
Furthermore, there was no evidence
presented to support plaintiff’s version of events, i.e., that Woods was
positively identified in the backyard of the mobilehome, that having been
positively identified he was detained and arrested there, and that only after
he was arrested did the SWAT team conduct its initial sweep search of the
mobilehome.
The trial court acted well within
its discretion in finding that the plaintiff continued the litigation after it
clearly became frivolous, unreasonable, and without foundation.
DISPOSITION
The judgment is affirmed. Respondents shall recover
BLEASE , Acting
P. J.
We concur:
BUTZ ,
J.
DUARTE , J.
name="_ftn1" title="">[1] Woods was subsequently convicted of
the murder.
name="_ftn2" title="">[2] A flashbang is an explosive diversion
device.
