Luer v. Seto

Filed 4/11/07 Luer v. Seto CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Jamoa A. Moberly, Judge. Affirmed.

Frank D. Luer, in pro. per., for Plaintiff and Appellant.

Stafford & Associates, Timothy J. Stafford and Randal Scott Oakley for Defendants and Respondents.

* * *

Frank D. Luer sued Orange County Sheriffs Deputy Johnny Seto and the County of Orange (collectively referred to as defendants) because Seto did not arrest a person whom Luer had placed under citizens arrest. The trial court sustained defendants demurrer without leave to amend. We conclude Seto is immune from liability for violations of 42 United States Code section 1983 and for state law torts. In addition, Luer failed to allege that Seto violated any rights protected by the California Constitution. We therefore affirm.

Allegations and Proceedings in the Trial Court

Luers first amended complaint alleged the following. On July 3, 2004, Luers neighbor, Allisa Sargent, placed garage sale signs on telephone poles near Luers home. Motorists stopping to read the signs blocked Luers driveway.

Luer stood in his driveway and took two photographs of Sargent posting a sign on a telephone pole. He asked Sargent to remove the sign. She removed the sign, but lunged at Luer and tried to take his camera. The two scuffled. Luer placed Sargent under citizens arrest for assault and battery and for unlawfully posting signs.

Luer made a 911 call and took more pictures of Sargent and of a red sport utility vehicle that had stopped along the street. Seto arrived at the scene. Luer asked him to arrest Sargent. Luer tried to hand Seto a CD-ROM with the pictures he had taken and asked Seto to take the disk as evidence of Sargent unlawfully posting signs. Setos report of the incident indicated Luer became physically upset and continued demanding that Seto arrest Sargent. Seto did not arrest Sargent.

Luers complaint alleged Seto violated his civil rights by his actions taken outside of the zone of immunity which render SETO fully liable under [42 United States Code] Section 1983, in failing to accept custody of SARGENT when a citizens arrest was made under authority of the California Penal Code, as required by law, based upon the citizen[]s arrest perfected by Plaintiff. Setos failure to arrest Sargent, Luer alleged, demonstrate[s] a violation of his duty as a police officer and his utter disregard of Plaintiffs civil and constitutional rights. Luer also alleged the County of Orange interfered with his request for records regarding the July 3, 2004 incident by failing to send him a copy of Setos report until November 18, 2004, about four months after he requested it.

Luer asserted three causes of action: (1) violation of civil rights (42 U.S.C.  1983), (2) violation of California privacy rights (Cal. Const., art. I,  1), and (3) negligence.

The trial court sustained defendants demurrer to Luers original complaint, struck the prayer for punitive damages, and granted leave to amend. The court denied Luers request to amend to allege Seto acted in his individual capacity, stating such an allegation would be inconsistent with Luers allegation that Seto acted in his official capacity.

The factual allegations of Luers first amended complaint did not differ substantially from those of the original complaint. The trial court sustained defendants demurrer to the first amended complaint without leave to amend, stating the complaint is not capable of amendment. Judgment was entered on July 18, 2006, and Luer timely appealed.

Discussion

1. First Cause of Action: 42 United States Code Section 1983

Luer alleged in the first cause of action that Seto and the Orange County Sheriffs Department were liable under 42 United States Code section 1983 because they violated his federal civil rights by failing to arrest Sargent after Luer had placed her under citizens arrest on July 3, 2004. The trial court correctly concluded Seto was immune from liability under section 1983.

A sheriffs deputy, such as Seto, has qualified immunity from liability under 42 United States Code section 1983 unless the officer has violated a clearly established constitutional right. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 840, citing Saucier v. Katz (2001) 533 U.S. 194, 201.) In Venegas v. County of Los Angeles, the California Supreme Court explained that under Saucier v. Katz, [t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. (Venegas v. County of Los Angeles, supra, 32 Cal.4th at p. 840.) Saucier set forth the following framework for ruling on a claim of qualified immunity: First, accepting the plaintiffs allegations as true, was a constitutional right violated? If so, was the right so well established that it would be clear to a reasonable officer that his conduct was unlawful in the circumstances? (Ibid.)

Luer has not identified any federal constitutional right violated by Setos failure to arrest Sargent. We cannot discern any such constitutional right: The federal constitution does not protect a right to have somebody else arrested.

Further, it would not have been clear to a reasonable peace officer that releasing Sargent was unlawful. Under California law, a peace officer may release from custody a suspect who had been placed under citizens arrest if the officer determines there are insufficient grounds for making a criminal complaint against the person arrested. (Pen. Code,  849, subd. (b)(1).) The California Attorney General has interpreted Penal Code section 849, subdivision (b)(1) to mean [a] California peace officer must accept custody of a person who has been placed under citizens arrest for a crime when requested to do so by the person who made the arrest even though the officer is satisfied that there is insufficient grounds for making a criminal complaint against the person arrested but the officer may then release the person from custody pursuant to Penal Code section 849, subdivision (b)(1). (73 Ops.Cal.Atty.Gen. 291 (1990).)

Luer also alleged the County of Orange violated his civil rights by failing to send him a copy of Setos incident report until November 18, 2004, some four months after Luer requested it. Luer does not address this allegation on appeal and therefore has waived any claim of error. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 964.) Moreover, we note, a local governmental entity may be liable under 42 United States Code section 1983 only if the constitutional violation was caused by the execution of an official policy, practice, or custom. (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 690‑691; see also Pembaur v. Cincinnati (1986) 475 U.S. 469, 471; Oklahoma City v. Tuttle (1985) 471 U.S. 808, 810.) Luer failed to allege that any delay in sending him a copy of Setos report was caused by the execution of such an official county policy, practice, or custom.

2. Second Cause of Action: California Right of Privacy

In the second cause of action, Luer alleged that Seto and the Orange County Sheriffs Department violated Plaintiffs civil privacy rights as prescribed in Article I, section 1, of the California Constitution because Seto in his capacity as a law enforcement officer, refused to accept custody of SARGENT even though a citizens arrest had been made. The threshold requirements for stating a claim for right of privacy under the California Constitution are: (1) a legally protected privacy interest, (2) a reasonable expectation of privacy in the circumstances, and (3) conduct by a defendant constituting a serious invasion of that privacy interest. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 890-891, 893.)

Luer has failed to meet the first requirementidentification of a specific, legally protected privacy interest. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) Legally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (informational privacy); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (autonomy privacy). (Ibid.) The court decides as a question of law [w]hether a legally recognized privacy interest is present in a given case. (Id. at p. 40.)

Luer alleged his privacy interests were invaded by (1) Setos failure to arrest Sargent, and (2) the County of Oranges failure to send him a copy of Setos report until November 18, 2004. We cannot see how either action constituted an invasion of a recognized privacy interest. Neither Seto nor the County of Orange exposed or disseminated confidential information about Luer, interfered with his personal decisions, watched his personal activities, or intruded on his personal life.

3. Third Cause of Action: Negligence

In the third cause of action, Luer alleged Seto acted negligently by failing to arrest Sargent. Under California law, Seto is immune from tort liability for his decision not to place Sargent under arrest. Government Code section 846 states, [n]either a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody. In addition, Government Code section 820.4 states, [a] public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. Since Seto is immune, the County of Orange cannot be liable under a theory of derivative liability based on his acts or omissions. (Gov. Code,  815.2, subd. (b).)

The County of Orange could be subject to direct liable only if Luer alleged the county failed to discharge a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury. (Gov. Code,  815.6.) Luer did not, and cannot, allege the county failed to discharge such a mandatory duty. As previously explained, California statute did not place a mandatory duty on Seto to arrest Sargent. To the contrary, under Penal Code section 849, subdivision (b)(1), a peace officer may release from custody a suspect who had been placed under citizens arrest if the officer determines there are insufficient grounds for making a criminal complaint against the person arrested. The trial court therefore was correct to sustain the demurrer to the negligence cause of action.

4. No Leave to Amend

The trial court did not abuse its discretion in denying Luer leave to amend because there was not a reasonable probability he could cure the defects in his complaint. (Beck v. American Health Group Internat., Inc. (1989) 211 Cal.App.3d 1555, 1563.) The trial court granted Luer leave to amend after sustaining defendants demurrer to his original complaint. The factual allegations of Luers first amended complaint did not differ substantially from those of the original complaint. It is the rule that when a plaintiff is given the opportunity to amend his complaint and elects not to do so, strict construction of the complaint is required and it must be presumed that the plaintiff has stated as strong a case as he can. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) It is plain from the allegations of the first amended complaintthe strongest case Luer can makethat Seto was immune for his decision not to arrest Sargent and defendants actions did not implicate Luers privacy rights under the California Constitution.

Disposition

The judgment is affirmed. Respondents shall recover their costs incurred in this appeal.

FYBEL, J.

WE CONCUR:

OLEARY, ACTING P. J.

ARONSON, J.

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