Robinson v. County of Solano

Filed 6/26/07 Robinson v. County of Solano CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Plaintiff James F. Robinson appeals a judgment, dismissing his complaint against defendants County of Solano (County), and Solano County Deputy Sheriff Brian Cauwells.[1] Before trial, the court struck plaintiffs cause of action pursuant to Civil Code section 52.1, on the ground that his tort claim filed with the County did not include sufficient information to encompass a section 52.1 claim. After a trial, the jury returned a defense verdict on plaintiffs assault cause of action, but failed to reach a verdict on his negligence claim. The trial court then directed a verdict in favor of defendants on the negligence claim, and entered judgment in their favor. Plaintiff now challenges the dismissal of his negligence cause of action and the striking of allegations stating a claim pursuant to section 52.1. We uphold the dismissal of the negligence cause of action. But, we conclude the judgment must be reversed and the matter remanded for further proceedings on the cause of action alleged pursuant to section 52.1.

BACKGROUND

A. Factual History

In his first amended complaint, plaintiff, a retired San Francisco police officer, alleged that on December 7, 1995, he was at his five-acre home in rural Fairfield. He shot at two dogs that were attacking and killing his chickens and turkeys. He killed one dog instantly, and wounded the other, which ran away. During his search for the wounded dog, plaintiff walked about 50 feet down the road, carrying his shotgun pointed at the ground. He saw the dogs owner, Sarah Reyes. Reyes shouted from a distance of about 160 feet, You didnt have to shoot him. Plaintiff replied that the dog was killing his chickens and he did not know that the dog belonged to Reyes.

A dispatch report was received by the Countys deputy sheriffs stating that a white male . . . wearing a red plaid shirt had shot two dogs. The critical encounter between plaintiff and the County deputy sheriffs occurred just minutes after they received the dispatch. At least six patrol vehicles arrived in the immediate vicinity of plaintiffs home. Plaintiff went outside to explain what happened. He walked out the front door of his home without his shotgun. The officers were standing outside their patrol cars, and watched plaintiff walk out, which took 24 seconds. None of the officers had their weapons drawn at that time.

Plaintiff approached the officers in a cool and calm manner. Plaintiff headed towards Deputy Sheriff Brian Cauwells, who moved away from his car and approached plaintiff. As Cauwells approached, plaintiff said in a casual tone, My name is Robinson and Im the man that was involved with the dogs. At this point, plaintiff and Cauwells were six to eight feet apart. Cauwells immediately responded by drawing his handgun, raising it and pointing it at plaintiffs head. Cauwells commanded plaintiff to put your hands over your head, or raise your hand[s] over your head. Plaintiff started to raise his hands, and asked, Whats the problem? Whats going on? Cauwells repeated his command, stepped forward and pointed the gun closer to plaintiffs head. Cauwells had his gun within three or four feet of plaintiffs head. Plaintiff thought Cauwells was going to kill him, especially when the officer pushed his gun forward. Deputy Sheriff Gary Faulkner pulled his gun and pointed it at plaintiff from about 25 to 30 feet away.

After plaintiff placed his hands on his head, the officers came up behind him, pulled his hands around his back and handcuffed him too tight. No questions were asked of plaintiff. Deputy Cauwells instructed plaintiff that he did not want to hear anything from him. Plaintiff was not searched for a concealed weapon or any contraband. Plaintiff sat in a police car for eight minutes, crying in pain from the handcuffs. He sat in the car for another 15 minutes before he was released.

B. Procedural History

On March 20, 1996, plaintiff filed a notice of claim with Solano County, alleging that he was wrongfully confronted by a Sheriffs Deputy who wrongfully drew his weapon and pointed it at [plaintiffs] head and wrongfully arrested, handcuffed and detained [him] without legal or moral justification.

After the County denied his claim, plaintiff filed a lawsuit in federal district court alleging federal civil rights violations and state law claims for assault, battery, and negligence. The federal lawsuit concluded without resolution of plaintiffs state law claims for negligence, gross negligence, and assault and battery. Those claims were dismissed without prejudice, and plaintiff was free to refile his complaint in state court.

On September 20, 2002, plaintiff filed his first amended complaint in state court, alleging assault, negligence, gross negligence, and interference with his rights in violation of Civil Code section 52.1. The County filed a demurrer and a motion to strike certain allegations in the complaint. Among other allegations, the County sought to strike the allegation regarding violations of plaintiffs rights under section 52.1 because his tort claim did not give the County notice of those statutory violations. Plaintiff opposed the demurrer and motion to strike. The court overruled the demurrer, but granted in part the motion to strike, and agreed with the County that the allegations of violations of section 52.1 were not included in plaintiffs tort claim.

The case progressed to a jury trial. Plaintiffs trial conference statement described the gravamen of his case: Plaintiff claimed that Deputy Cauwells used unreasonable force when he pointed his gun at plaintiffs head at a distance of several feet on December 7, 1995, after Cauwells responded to a dispatch call indicating that shots were fired at two dogs. Plaintiff also claimed the County was liable for Cauwellss actions. Defendants contended that at all times Cauwells acted appropriately and reasonably.

The case went to the jury on theories of assault, excessive force and negligence. In responses to specific interrogatories, the jury found that Deputy Cauwellss act of pointing his gun at plaintiff did not constitute excessive force, but it was unable to reach a verdict as to whether the conduct was negligent. Plaintiff sought a mistrial or new trial on the negligence cause of action, and the County and Cauwells moved to dismiss the negligence claim by directed verdict.

Plaintiff opposed the directed verdict on the ground that the jury instructions clearly distinguished the intentional tort of assault and its objective reasonableness standard from the less rigorous reasonableness standard that would apply to negligence. Plaintiff also argued that his negligence cause of action was separate from the assault. Plaintiff argued the parties presented two fundamentally different versions of the facts, and the jury was free to believe whatever version it reasonably construed from the evidence. The jury might have concluded that although Cauwells acted reasonably, his negligence created a situation that exposed plaintiff and everyone else to great danger.

In reply, defendants argued that the duty Cauwells owed to plaintiff was to refrain from using unreasonable and/or excessive force; a duty that was considered and decided in favor of defendants. Defendants also argued that California case law held that peace officers had no duty to refrain from negligently creating a danger that led to the use of excessive force. Therefore, the example plaintiff used to demonstrate how the jury could conclude that Cauwells acted negligently, even though his use of force was reasonable, failed as a matter of law.

The trial court granted the motion for directed verdict and explained: In reaching a verdict on the assault cause of action, the jury found that defendant Cauwel[l]s conduct toward plaintiff did not constitute a use of unreasonable or excessive force. Use of unreasonable or excessive force is an essential element in a negligence action against a police officer. Therefore, the jurys finding that no excessive force was used precludes a judgment in favor of plaintiff on the negligence action. Judgment was entered in favor of defendants County and Cauwells. Plaintiff timely appeals.[2]

DISCUSSION

I. Dismissal of the Cause of Action Pursuant to Civil Code Section 52.1

In his notice of claim, plaintiff specified the particular act or omission and circumstances he believed caused him injury as follows: Claimant was wrongfully confronted by Sheriffs Deputy who wrongfully drew his weapon and pointed it at Claimants head and wrongfully arrested, handcuffed and detained Claimant without legal or moral justification.

In paragraphs 14 through 32 of his first amended complaint, plaintiff set forth the factual circumstances giving rise to his causes of action. Under the heading, SECOND CAUSE OF ACTION (Negligence), it was alleged, in pertinent part: 37. Due to the actions of the defendants, the tort of negligence was inflicted upon the Plaintiff. Each of these actions constitutes a separate cause of action, set forth here: . . . guns were wrongfully drawn and pointed by the defendant officers at his head at close range (2-B); the painful period of time that plaintiff was in handcuffs for no good cause (2-C). . . . [] 38. These actions violate plaintiffs rights under California state law as well as the California Constitution. The actions of the defendants were so outrageous as to constitute gross negligence, and a violation pursuant to CC [Civil Code] Section 52.1 (2-E).

Defendant County moved to strike those allegations relating to handcuffing and violations of Civil Code section 52.1. Plaintiff opposed the motion, arguing that the facts alleged in the notice of claim supported all of his causes of action, and that the County could reasonably infer from his notice of claim that he would seek remedies under specific California statutes. The court refused to strike the handcuffing allegations. However, the court did strike the allegations based upon section 52.1 on the ground that those allegations were not included in plaintiffs tort claim.

On appeal, plaintiff seeks to reinstate his Civil Code section 52.1 cause of action on the ground that his notice of claim was sufficient under the Tort Claims Act (Gov. Code,  810 et seq). We agree with plaintiff that his notice of claim was sufficient.

The purpose of [the notice provisions of the Tort Claims Act] is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. [Citation.] Consequently, a claim need not contain the detail and specificity required of a pleading, but need only fairly describe what [the] entity is alleged to have done. [Citations.] As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions [citation], the claims statute should not be applied to snare the unwary where its purpose has been satisfied.  (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446.) Thus, [t]he claim . . . need not specify each particular act or omission later proved to have caused the injury. [Citation.] A complaints fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an entirely different set of facts. [Citation.] Only where there has been a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim have courts generally found the complaint barred. [Citation.] Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint. (Id. at p. 447.)

Civil Code section 52.1 subdivision (a), provides that if a person interferes, or attempts to interfere, by threats, intimidation, or coercion, with the exercise or enjoyment of the constitutional or statutory rights of any individual or individuals, the Attorney General, or any district or city attorney, may bring a civil action for equitable or injunctive relief. Subdivision (b) allows [a]ny individual so interfered with to sue for damages. Subdivision (g) states that an action brought under section 52.1 is independent of any other action, remedy, or procedure that may be available to an aggrieved individual under any other provision of law. . . . (Venegas v. County of Los Angeles(2004) 32 Cal.4th 820, 841.)

Plaintiffs notice of claim alleged that the deputy sheriff had wrongfully confronted plaintiff, pointed a gun at his head, and detained, handcuffed, and arrested him without legal or moral justification. These allegations did more than suggest simple negligence, and were sufficient to allow the County to conduct an investigation into the merits of plaintiffs claim regarding the alleged conduct of the Countys deputy sheriff. There is nothing about these allegations that would fail to give the County reason or opportunity to investigate possible constitutional and statutory violations based on threats, intimidation or coercion. The facts in the notice were the same facts pled in the amended complaint. Given that the cause of action pursuant to Civil Code section 52.1 was supported by the alleged acts described in the tort claim, the trial court erred in striking the section 52.1 allegations. (See Venegas v. County of Los Angeles, supra, 32 Cal.4th at pp. 841-843 [cause of action under  52.1, based on unreasonable search and seizure that alleged threats, intimidation or coercion sufficient without allegation of discriminatory animus].)

II. Directed Verdict on Cause of Action for Negligence

A directed verdict is . . . subjected to de novo appellate review. [T]he power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit. [Citation.] A motion for a directed verdict is in the nature of a demurrer to the evidence, and is governed by practically the same rules, and concedes as true the evidence on behalf of the adverse party, with all fair and reasonable inferences to be deduced therefrom.   (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210, fn. omitted.) In determining the merits of the motion for directed verdict, we apply the same standards for reviewing a motion for a nonsuit. (Estate of Lances (1932) 216 Cal. 397, 400-401.) [D]efects not specifically pointed out by the moving party cannot be considered by the trial court, or by us, in determining the merits of the motion. (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 378.) We confine our review to the ground for a directed verdict asserted in the trial court: whether the jurys finding that Deputy Cauwells did not use excessive force when he pointed his gun at plaintiff precluded, as a matter of law, a judgment for plaintiff on whether Cauwells could be found negligent for the same conduct.

In California, a peace officers lack of due care when using excessive force can give rise to both negligence and intentional tort liability. (See Munoz v. Olin (1979) 24 Cal.3d 629, 634; Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 586.)

Here, the jurys verdict sheet reflects that it was instructed on both negligence and intentional tort theories regarding Deputy Cauwellss act of pointing his gun. The jury decided Cauwells did not act with excessive force in pointing his gun, but deadlocked on whether Cauwells was negligent. The court then refused to submit the issue of Cauwellss possible negligence to a new jury on the premise that the jurys conclusion Cauwells did not act with excessive force precluded a jury verdict that he was negligent.

Plaintiff challenges the trial courts refusal to resubmit the issue of Cauwellss alleged negligence to a new jury. However, we are compelled to agree with defendants that plaintiffs failure to provide an adequate record prevents meaningful review of this claim of error. A fundamental principle of appellate practice is that an appellant  must affirmatively show error by an adequate record. . . . Error is never presumed. . . . A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .    (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) Specifically, without any record of the actual instructions given to the jury regarding the applicable law, we cannot determine whether the trial court erred when it concluded that the jurys finding that Deputy Cauwellss pointing of his gun was not excessive force also meant that the jury necessarily found his conduct to be reasonable, and if reasonable, it was by definition not negligent. Given plaintiffs failure to affirmatively establish error by providing an adequate record, the courts directed verdict on the negligence cause of action must be upheld.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court for further proceedings on the Civil Code section 52.1 cause of action. Plaintiffs appeal from the order denying a motion for a new trial is dismissed. The cross-appeal by defendants County and Brian Cauwells is dismissed. Plaintiff is awarded costs on appeal.

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Siggins, J.

We concur:

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McGuiness, P.J.

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Parrilli, J.

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[1] Brian Cauwells is also referred to as Brian Cauwels.

[2] In his notice of appeal, plaintiff appeals from both the May 16, 2005, judgment in favor of defendants, and the order denying his motion for a new trial filed on June 2, 2005. The order denying a motion for a new trial is not separately appealable. (Code Civ. Proc.,  904.1(a)(4).) Any challenge to that order would be reviewable on the appeal from the judgment. ( 906.) Accordingly, we dismiss the appeal taken from the new trial order. As requested by defendants County and Deputy Cauwells, we also dismiss as abandoned their cross-appeal regarding the admission of certain evidence and the applicable legal standard involving an assault claim alleged against a police officer.