Van v. County of Monterey

Filed 5/4/06 Van v. County of Monterey CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Michael Van (hereafter Van) appeals from a judgment dismissing his action for damages in the amount of $300,000 general damages and $100,000 punitive damages against the County of Monterey, the sheriff, and two deputy sheriffs, dismissal having followed an order of the court sustaining defendants' demurrer without leave to amend. We affirm.

Scope of Review

A demurrer tests the legal sufficiency of a pleading. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) On appeal from a judgment of dismissal after a demurer is sustained without leave to amend, we assume the truth of all facts properly pleaded by the plaintiff, as well as those that are properly the subject of judicial notice. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In addition, we accept as true facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

We examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) "On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory. [Citations.] If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended." (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) With this in mind, we set forth the background to this case

Background Facts

On January 4, 2002, Van, a resident of the City of Sierra Madre in Los Angeles County bought 40 acres of real property located in the southern part of Monterey County. Van had the property surveyed and learned that a line of existing fence posts was located 40 feet north of the true southern property line. In November 2002, Van spoke to his neighbor Brent Holmes about the fence. Holmes disputed Van's survey findings and denied access to Van's excavation contractor. Van had his surveyors place stakes on the true boundary line with flags, pins and orange paint.

On May 26, 2003, Van noticed some excavation work had been performed south of his property and that some of the survey stakes had been removed, broken off, and thrown into the bushes. Van called the Monterey County Sheriff's Department to make a report of malicious mischief to his property. Deputy William Plank informed Van that Holmes was a problem individual who had been involved in other property disputes.

Thereafter, Van started installing a fence using T-posts, and wood posts with concrete and cross braces, to block a jeep trail on the newly surveyed property line.

Subsequently, Van received a threatening phone call from Holmes. Van reported the threatening calls to the sheriff's department.

On July 28, 2003, Van arrived at his property to find his fence ripped out and the posts and other materials mangled, bent and rendered unusable. The survey stakes, pins and tape were entangled in the debris. Again, Van called the sheriff's department. Deputy Lloyd Foster and Sergeant Dahman responded to his call. They informed him that this was a civil matter and they could not do anything about the destruction of the fence and materials. Van pointed out that the removal of the monuments on his property, and the damage done, constituted a misdemeanor. Both deputies looked around and took photographs of the damage.

On July 29, 2003, Van received a call from Deputy Foster. Foster told him that Holmes admitted taking out the survey stakes and said that he would do it again. Further, Foster stated that Holmes was argumentative and told him that he was going to file a complaint against the deputy. Deputy Foster told Van that he would request that a complaint be filed against Holmes and strongly urged Van to stay away from Holmes.

On August 10, 2003, Van returned to his property to find that Holmes had installed barbed wire between the old fence posts. The wire ran for about 250 feet around the jeep trail area on Van's property. This made it impossible for Van to get to his property. Holmes removed additional posts and monuments. Van removed a small portion of the barbed wire.

On August 11, 2003, Van contacted another surveyor in an effort to have his original survey recorded. He was informed that the original survey was accurate. This surveyor informed Van that he had spoken to Deputy Foster and informed him that the original survey accurately represented the parcel of land as it was legally described and deeded to Van.

On or about August 18, 2003, Deputy Foster asked Van if he knew anything about the partial removal of the barbed wire Holmes had installed. Van informed the deputy that the fence put up by Holmes had inhibited him from using his property and that he was not going to allow Holmes to establish a prescriptive easement. Van explained that to do so would make litigation in the civil matter more difficult.

On August 24, 2003, Deputy Willis went to view the damage to the barbed wire. Subsequently, on September 10, 2003, Van received a notice that the Monterey County District Attorney would not file charges against Holmes.

On September 23, 2003, Deputy Willis prepared a crime report regarding the allegations made by Holmes that Van had damaged his barbed wire. He requested that the District Attorney file a complaint against Van because Holmes wanted to "press charges."

On October 12, 2003, Van reported to Deputy Foster that his gate had been removed and that Holmes had erected a wire fence across Van's property. The sheriff's department made no report.

In the first part of November 2003, Van contacted the county surveyor's office. Jerry Camacho informed Van that the county surveyor had received Van's survey. The survey had been recorded and approved for accuracy. In addition, Camacho told Van that Holmes had placed his barbed wire 42 feet onto Van's property and that a third surveyor had agreed with Van's original survey.

On November 11, 2003, Deputy Willis made another request to the District Attorney's office for the issuance of a complaint against Van. Deputy Willis contended that Van had violated Penal Code section 602, subdivision (h)[1] by destroying Holmes's fence.

On November 17, 2003, Deputy Foster informed Van that he had called the surveyor and based on conversations he had with the surveyor, Deputy Foster had informed Holmes he had 15 days to remove the fence from Van's property. In addition, Deputy Foster informed Van that the sheriff's department would enforce Van's property line. Shortly, thereafter Deputy Foster called Van and "said to hold everything until they could do more investigation."

On December 11, 2003, Van received a notice from the Office of the District Attorney of Monterey County informing him that he had been charged with a violation of Penal Code section 594, subdivision (b)(1).[2] (We granted respondent's request to take judicial notice of the Superior Court file in Case No. MKO 75507 A, Superior Court of Monterey County, King City Division.) The letter informed Van that to avoid having an arrest warrant issued in his name, he had to be booked prior to his arraignment. Further, the letter informed Van that the date of his arraignment was January 8, 2004.

On January 8, 2004, Van was arraigned. He employed two attorneys to represent him. Subsequently, on May 11, 2004, the district attorney moved to dismiss the case in the furtherance of justice.

Thereafter, Van filed a complaint in Superior Court entitled "COMPLAINT FOR VIOLATION OF CIVIL RIGHTS . . . " against the County of Monterey, the Monterey County Sheriff, Deputy Willis and Sergeant Richard Rodriguez. Van alleged 10 causes of action: two for false arrest, one for false imprisonment, one for negligence per se, one for public entity liability for failure to perform, one for gross negligence, one for intentional infliction of emotional distress, one for negligent infliction of emotional distress, one for unlawful seizure of property, and one for deprivation of property without due process. Van sought general damages of $300,000 and $100,000 punitive damages against each of the individual defendants.

Respondents demurred to the complaint for failure to state a cause of action against respondents. At the hearing on the demurrer, following the argument of counsel, Judge O'Farrell agreed with respondents' counsel that "there is no right not to be booked: that booking, itself, is not the event of an arrest and imprisonment." Further, Judge O'Farrell found that there "was an admission [by Van] that he took down the fence. And there was a citation for the issue that arose from that incident. [¶] He came in, went through the process. There was nothing here that sustains a cause of action." Accordingly, Judge O'Farrell sustained the demurrer without leave to amend.

Subsequently, on May 31, 2005, Van filed a notice of appeal from the order after hearing sustaining the demurrer. Judge O'Farrell entered a judgment of dismissal in the case on July 6, 2005. We treat Van's notice of appeal as filed immediately after entry of judgment. (Cal. Rules of Court, rule 2.)

On appeal, Van argues that he properly alleged false arrest and false imprisonment as well as his other tort claims and respondents are not immune from liability.

Standard of Review

An appeal of a judgment of dismissal following the granting of a demurrer presents a pure question of law, and is subject to this court's independent review. (Walker v. Allstate Indem. Co. (2000) 77 Cal.App.4th 750, 754.) Thus, essentially, a general demurrer presents the same question to this court as to the trial court. That is, whether the plaintiff has alleged sufficient facts in the complaint to justify relief on any legal theory. (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 952-953.)

Discussion

Causes of Action for False Arrest and False Imprisonment

Van concedes that although the complaint is framed to alleged separate causes of action for false arrest and false imprisonment, the cases have held that "a false arrest is only one way of committing a false imprisonment, and they are distinguishable only in terminology." Accordingly, he argues that the letter from the Monterey County District Attorney caused the requisite confinement, because he did not wish to be booked and only appeared out of fear of prosecution and even more problems with the "law," which he did not want.

Both parties agree that the elements of a cause of action for false imprisonment are (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.

In his complaint, Van alleged that he was deprived of his liberty and freedom of movement by being required to drive from Los Angeles to Salinas to undergo the booking process. Further, he was compelled to remain where he did not wish to remain, while he was in custody at the Monterey County jail "during which time he was made to wait, fill out papers, be fingerprinted, and have a mug shot taken."

Respondents assert that the law "is not sufficiently broad to include a voluntary appearance at an arraignment in the legal definition of 'arrest' for the purpose of stating a cause of action for False Arrest/Imprisonment."

Even if we were to disagree with respondent, we find that as to the second element of the tort of false imprisonment, Van did not, and could not, plead sufficient facts that his "arrest" was without lawful privilege.

As noted, any person who maliciously damages or destroys any real or personal property not his own, is guilty of vandalism. (Pen. Code, § 594.) Van admitted to Deputy Foster that he had cut the barbed wire that Holmes had placed across Van's land.

Normally, when one affixes his property to the land of another, without an agreement permitting him to remove it, the thing affixed, belongs to the owner of the land. (Civ. Code, § 1013.) However, when that person, "acting in good faith and erroneously believing because of a mistake either of law or fact that he has a right to do so, affixes improvements to the land of another, such person . . . shall have the right to remove such improvements upon payment . . . to the owner of the land . . . [for] damages proximately resulting from the affixing and removal . . . ." (Civ. Code, § 1013.5.) In this situation, the thing affixed remains the property of the person affixing and not the property of the owner of the land. We are guided to this conclusion based on our review of the historical underpinnings of the origin and development of the right to use force in order to recover possession of land.

In Daluiso v. Boone (1969) 71 Cal.2d 484, our Supreme Court surveyed the history and development of the right to use force to recover possession of land. We quote extensively from the Supreme Court's discussion.

" 'Under the ancient common law it is supposed that one entitled to the possession of land was privileged to enter and use such force, short of death or serious bodily harm, as reasonably appeared to be necessary to the repossession.' (1 Harper and James, The Law of Torts (1956) § 3.15, p. 255.) Thus, if a forcibly entering defendant established his title or right to possession, it was a complete defense to an action by a plaintiff in possession of the land for injuries to the latter's person or goods arising out of the defendant's forcible entry, provided that the defendant used only reasonable force in regaining possession. It soon became obvious, however, that allowing one to recover his land by force contributed greatly to breaches of the public peace and gave 'an opportunity to powerful men, under the pretence of feigned titles, forcibly to eject their weaker neighbors, and also by force to retain their wrongful possession. . . .' (Dickinson v. Maguire (1858) 9 Cal. 46, 50, quoting from 2 Hawkins, Pleas of the Crown, ch. 64, p. 29.)

"As a result, the penal statute of 5 Richard II was enacted in 1381 to provide that 'none from henceforth make any entry into lands and tenements, but in case where entry is given by law; and in such case, not with strong hand, nor with multitude of people, but only in a peaceable manner. And if any man, from henceforth, do the contrary, and thereof be duly convict, he shall be punished by imprisonment of his body, and thereof ransomed at the King's will.' By the imposition of criminal sanctions the statute was intended to discourage resort to self-help in the settlement of disputes over the right to possession of land. In furtherance of that policy, the English courts later determined that a cause of action in tort should lie for personal injuries (Newton v. Harland, 1 Mann & G. 644, 133 Eng.Rep. 490 [Common Pleas 1840]) or for injuries to personal property (Beddall v. Maitland [1881] 17 Ch.Div. 174) arising out of the entry even if the forcibly entering defendant was the true owner of the land or entitled to immediate possession thereof. The courts reasoned that since 'the act [of forcible entry] is directly prohibited, the act itself is made unlawful' (Newton v. Harland, supra, 1 Mann & G. at p. 667, 133 Eng.Rep. at p. 499) the consequences of an unlawful act should attach thereto to the extent 'that there is a good cause of action whenever in the course of a forcible entry there has been committed by the person who has entered forcibly an independent wrong, some act which can be justified only if he was in lawful possession.' [Fn. omitted.] (Beddall v. Maitland, supra, 17 Ch.Div. at pp. 189-190.) Thus, the policy against self-help in land disputes was implemented by allowing recovery in tort by a plaintiff in peaceable possession of the land against a forcibly entering defendant irrespective of the latter's title or right to immediate possession.

"The Newton and Beddall cases were overruled in 1920 by Hemmings v. Stoke Poges Golf Club, Ltd., 1 K.B. 720, 738. However, the rationale of the former cases quickly took root in American case law and the American decisions were not affected by the holding of the Court of Appeal in Hemmings. Eminent authorities on the law of torts indicate that the majority of American states have construed their statutes of forcible entry, both penal and civil, in such a manner as to abrogate the common law privilege to use force in the recovery of possession of land and have held that a plaintiff who proves his peaceable possession of the land at the time of the defendant's forcible entry may recover, in an action sounding in tort, damages for injuries to his person or goods arising out of the entry. (1 Harper and James, op.cit. supra, at § 3.15, p. 258; Prosser, Law of Torts (3d ed. 1964) § 23, p. 125. See e.g., Mason v. Hawes (1884) 52 Conn. 12, 16 [52 Am.Rep. 552]; McIntyre v. Murphy (1908) 153 Mich. 342, 346-347 [116 N.W. 1003, 1004-1005, 15 Ann.Cas. 802]; Lobdell v. Keene (1901) 85 Minn. 90, 101 [88 N.W. 426, 430]; Strauel v. Lubeley (1915) 186 Mo.App. 638, 643-644 [172 S.W. 434, 435-436]; Mosseller v. Deaver (1890) 106 N.C. 494, 496-498 [11 S.E. 529, 530, 8 L.R.A. 537, 19 Am.St.Rep. 540]; Weatherly v. Manatt (1919) 72 Okla. 138, 139-140 [179 P. 470, 471]; Walgreen Co. v. Walton (1932) 16 Tenn.App. 213, 229 [64 S.W.2d 44, 53]; Ray v. Dyer (Tex.Civ.App. 1929) 20 S.W.2d 328, 330; Buchanan v. Crites (1944) 106 Utah 428, 436 [150 P.2d 100, 103]. See also Whitney v. Brown (1907) 75 Kan. 678, 681-683 [90 P. 277, 278, 11 L.R.A. N.S. 468, 12 Ann.Cas. 768]; Rest.2d Torts, § 185, com. a.)

"A minority of states, however, have taken the view that their forcible entry statutes have not deprived a defendant with the right to immediate possession of land of his common law privilege to use reasonable force to regain possession thereof. Representative of this view is the following language from Shorter v. Shelton (1945) 183 Va. 819, 826-827 [33 S.E.2d 643, 647]: 'It will be observed that the statute [of forcible entry] does not in express terms deprive the owner of the common-law right to take possession by reasonable force of premises to which he may be entitled. While its purpose is to prevent violence and disturbances which are likely to follow when one entitled to the lawful possession of premises undertakes to assert his rights by force, [citation] the right of action is civil in character, [citation] and the result, if the plaintiff prevails, is merely to restore the possession to one from whom it has been forcibly taken, or to give possession to one from whom it is being unlawfully withheld. "The judgment has only the effect of placing the parties in statu quo." [[C]itations.]' (See 1 Harper and James, op.cit. supra, at § 3.15, p. 258; Prosser, op.cit. supra, at § 23, p. 125 and cases collected therein.)

"The courts which have adopted the majority view have done so on the rationale that their forcible entry statutes expressed a policy intended to discourage self-help in the settlement of disputes over possession of land and to encourage resort to the courts in all such matters. [Fn. omitted.] On the basis of that policy they have determined that the plaintiff's failure to proceed under the forcible entry statute was not reason to deny him the right to proceed in tort for injuries arising out of the forcible entry even if title to the land was in the defendant. The Supreme Court of Vermont expressed the policy in these words: '[H]ad the present plaintiff elected to have proceeded under the statute, there can be no doubt, he might have subjected the defendants to punishment by way of fine, obtained restitution of the possession, and sustained an action of trespass, and recovered three fold damages for the expulsion and detention. And if such be the undeniable rights of the parties, under the statute, it is difficult to see, why, if the party waive all penalty under the statute, he may not sustain trespass qu. cl. against the defendants, the same as against any other wrong doers. Their [defendants'] right to possession gave them no more right to enter in that manner [by force], than if they had been mere strangers. . . .' (Dustin v. Cowdry (1851) 23 Vt. 631, 639- 640.)

"Over a hundred years ago the Supreme Court of Illinois recognized the incongruity of a statutory policy intended to discourage the use of self-help and a judicial policy which encouraged self-help by allowing title to be a complete defense to an action brought in tort for injuries arising from a forcible entry: 'The reasoning upon which we rest our conclusion lies in the briefest compass, and is hardly more than a simple syllogism. The statute of forcible entry and detainer, not in terms, but by necessary construction, forbids a forcible entry, even by the owner, upon the actual possession of another. Such entry is, therefore, unlawful. If unlawful it is a trespass, and an action for the trespass must necessarily lie. It is urged that the only remedy is that given by the statute--an action for the recovery of the possession. But the law could not expel him who has entered if his entry was a lawful entry, and if not lawful all the consequences of an unlawful act must attach to it. The law is not so far beneath the dignity of a scientific and harmonious system that its tribunals must hold in one form of action a particular act to be so illegal that immediate restitution must be made at the costs of the transgressor, and in another form of action that the same act was perfectly legal and only the exercise of an acknowledged right. . . .

" 'We state then, after a full examination of this subject, that in our opinion the statutes of forcible entry and detainer should be construed as taking away the previous common law right of forcible entry by the owner, and that such entry must be therefore held illegal in all forms of action.' [Citations.]" (Daluiso v. Boone, supra, 71 Cal.2d 484, 490-494.)

In the light of these principles of English and American law, our Supreme Court attempted to examine and evaluate the present state of the law of California. The Supreme Court concluded that since 1850 California has had a forcible entry statute, which although civil in nature, is patterned after the statute of 5 Richard II. (See Stats. 1850, ch. 141, p. 425.) (Daluiso v. Boone, supra, 71 Cal.2d at p. 495.)

The provisions of the forcible entry statute are presently contained in Code of Civil Procedure section 1159,[3] which defines a forcible entry. Section 1172 states the elements of the plaintiff's cause of action to be a showing of forcible entry by the defendant and peaceable possession of the land by the plaintiff at the time of the defendant's entry. Section 1174 provides that the plaintiff may recover possession of the land and damages occasioned to him by the defendant's entry and that the court, in its discretion, may treble the award of damages. As our Supreme Court pointed out, "[t]he courts of this state have long recognized that the purpose of these statutes was 'to secure a judicial adjustment of differences [concerning the right to possession of property] and thus prevent the parties themselves from redressing or attempting to redress their own wrongs which is likely to lead to serious wrongs against the public or society.' [Citations.] To promote this end it has been consistently held that it is no defense to an action brought under the forcible entry statute that the defendant has the title or the right to possess the land. [Citations.]" (Daluiso v. Boone, supra, 71 Cal.2d at pp. 495-496.)

Since the act of forcible entry is unlawful (Pen. Code, § 418), all of the consequences of an unlawful act should attach to it. (Daluiso v. Boone, supra, 71 Cal.2d at p. 499.) Given the fact that forcible entry is unlawful, and that Holmes could have removed his barbed wire, we conclude that the barbed wire belonged to Holmes. Since Van admitted he damaged the wire, the Monterey County District Attorney had the lawful privilege to "arrest" Van. Accordingly, as to the first, second and third causes of action Van did not and could not plead sufficient facts to overcome respondents' demurrer.[4]

Cause of Action for Negligence Per Se, Public Entity Failure to Perform, Gross Negligence, and Negligent Infliction of Emotional Distress

Van's complaint alleged that the defendants had a duty as law enforcement officers to investigate his complaints and charges levied against Holmes. The officers breached this duty by arresting Van and pursuing criminal charges against him on the false factual basis that he had vandalized Holmes's fence. In so doing, each of them acted with complete disregard for Van's health, safety and rights. Further, that each of the defendants knew or should have known that their failure to exercise due care in the performance of their duties in investigating the matter that led to Van's arrest would cause Van severe emotional distress. Moreover, the County through its agents, violated all three of the protections provided Van by Penal Code section 146.

At the outset, we point out "there is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element." (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) "That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship." (Id. at p. 985.) In this case, plaintiff bases his claim of negligence on an asserted breach of a statutory duty arising under Government Code section 815.6 and Penal Code section 146.

Government Code section 815.6 states: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." Penal Code section 146 states: "Every public officer, or person pretending to be a public officer, who, under the pretense or color of any process or other legal authority, does any of the following, without a regular process or other lawful authority, is guilty of a misdemeanor: [¶] (a) Arrests any person or detains that person against his or her will. [¶] (b) Seizes or levies upon any property. [¶] (c) Dispossesses anyone of any lands or tenements."

A plaintiff asserting liability under Government Code section 815.6 " 'must specifically allege the applicable statute or regulation.' [Citation.]" (Brenneman v. State of California (1989) 208 Cal.App.3d 812, 817.) In Sullivan v. County of Los Angeles (1984) 12 Cal.3d 710, for example, the plaintiff alleged that the defendant had failed in the duty imposed by Penal Code section 1384 to release him from prison once the charges against him had been dismissed. Similarly, in Papelian v. State of California (1976) 65 Cal.App.3d 958, it was alleged that that the defendant had failed in the duty imposed by Vehicle Code section 12805 to deny driver's licenses to persons unable to operate a motor vehicle safely.

In this case, it appears that Van is basing his claim of a mandatory duty on Penal Code section 146. Van asserts that the County, the Sheriff and the deputies took action against him and ignored his claims that Holmes was violating his property rights, but instead supported Holmes's property rights against him. In essence, Van asserts that the sheriff's department had a duty to adjudicate the property dispute between Holmes and himself.

It is not enough that a statute contains mandatory language. In order to recover, Van has to show that there is some specific statutory mandate that was violated by the County, and the Sheriff and his deputies, which violation was a proximate cause of his injuries. (Braman v. State of California (1994) 28 Cal.App.4th 344, 348-349.) In addition, any such violation cannot form the basis of liability if the County is granted statutory immunity from such liability. (Gov. Code, § 815; Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896.)

The question of whether a statute is intended to impose a mandatory duty is a question of statutory interpretation for this court. (Creason v. Department of Health Services (1998) 18 Cal.4th 623, 631.)

We find nothing in Penal Code section 146 that creates a mandatory duty on the part of the Monterey County Sheriff's Department to adjudicate the property dispute between Van and Holmes.

Furthermore, a law enforcement officer's duty to protect the citizenry is a general duty owed to the public as a whole. (South v. State of Maryland (1855) 59 U.S. 396, 403.) The intended beneficiaries of any investigation that is undertaken are the People as prosecutors in criminal cases, not private individuals. (Williams v. State of California (1983) 34 Cal.3d 18, 24, fn. 4.)

Accordingly, we conclude that Van did not and cannot plead sufficient facts to establish any causes of action based on any sort of negligence, or public entity failure to perform.

Intentional Infliction of Emotional Distress

Below, Van alleged that the defendants knew or should have known that their outrageous conduct would cause him emotional distress. Further, defendants' conduct was done with a conscious disregard for Van's health and safety with the intent to cause Van severe emotional distress.

The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant; (2) extreme or severe emotional distress to the plaintiff; and (3) actual and proximate causation between the two. (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 1001.) In order to be outrageous, the defendant's conduct must be either intentional or reckless, and it must be so extreme as to exceed all bounds of decency in a civilized community. (Ibid.) Furthermore, the conduct must be specifically directed at the plaintiff. (Id. at p. 1002.)

We find nothing in the record on which we could conclude that defendants' conduct was so extreme as to exceed the bounds of reason. There may be many reasons why the Monterey County District Attorney declined to file charges against Holmes. Van's cause of action for intentional infliction of emotional distress cannot be sustained, because the complaint fails to allege the requisite outrageous conduct by defendants. By definition, defendants did not engage in outrageous conduct, since they did not act outside the law. As explained above, defendants have not breached a contract, violated an actionable statute, or committed a tort against Van. (Cf., Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at pp. 976, 1000-1001 [illegal dumping of toxic substances].)

Seizure and Deprivation of Property without Due Process

In his complaint, Van alleged that the defendants deprived him of his right to defend himself and his property from the forcible and illegal dispossession of his lands by Holmes.

Van argues that although the review of the causes of action for Fourth and Fourteenth Amendment violations was never the subject of the court's attention below, his arrest gives rise to such claims in that it was without probable cause.

As noted earlier, Van's "arrest"[5] was not without probable cause. Accordingly, Van did not and could not plead facts showing that he was deprived of his Fourth and Fourteenth Amendment rights.[6]

Finally, defendants assert that Van has raised a new theory of recovery on appeal, that is, a violation of section 1983 of Title 42 of the United States Code. Although not well pleaded, we do find that Van's complaint alleges a violation of section 1983.[7]

"To succeed in a Section 1983 action, a claimant must prove that a person acting under color of state law violated the claimant's constitutional rights." (Radich v. Goode (3d Cir. 1989) 886 F.2d 1391, 1395.) To put it another way, section 1983 provides a cause of action for any person who has been deprived, under color of state law, of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States. (42 U.S.C. § 1983.)

In Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, the high court overruled that portion of Monroe v. Pape (1961) 365 U.S. 167, which held that local governments were not "person[s]" within the meaning of section 1983, and hence were wholly immune from suit. (Monell v. New York City Dept. of Social Services, supra, at pp. 663, 690.) Under Monell, local governments can be sued directly under section 1983 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. Moreover, local governments may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. (Id. at pp. 690-691.) Local government includes counties as well as cities. (McMillian v. Monroe County (1997) 520 U.S. 781, 785-793 [if sheriff's actions constitute county as opposed to state policy, then county is liable under section 1983]; Monell v. New York City Dept. of Social Services, supra, 436 U.S. at p. 690, fn. 54 [section 1983 applies to "local government units which are not considered part of the State for Eleventh Amendment purposes"].)

"However, 'a municipality cannot be held liable solely because it employs a tortfeasor--or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.' [Citation] Thus, 'a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.' (436 U.S. at p. 694 [98 S.Ct. at p. 2037-2038]; see Pembaur v. Cincinnati (1986) 475 U.S. 469, 481 [106 S.Ct. 1292, 1299, 89 L.Ed.2d 452] (plur. opn. of Brennan, J.) ['Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. [Fn. omitted.]'].)" (Pitts v. County of Kern (1998) 17 Cal.4th 340, 349.)

"Moreover, 'it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.' [Citation.] '[P]roof that a municipality's legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.' [Citation.]" (Pitts v. County of Kern, supra, 17 Cal.4th at p. 349.)

A section 1983 action has two essential elements: (1) whether a person acting under color of state law committed the conduct complained of; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. (Parratt v. Taylor (1981) 451 U.S. 527, 535, overruled on other grounds, Daniels v. Williams (1986) 474 U.S. 327, 331-332.)

The first inquiry in a section 1983 lawsuit is to identify the precise constitutional provision the defendant is charged with violating. (Graham v. Connor (1989) 490 U.S. 386, 394.)

It appears that Van based his section 1983 action on a deprivation of his liberty and his property.

"It is undisputed that since an action under section 1983 is based on federal statutory law, state courts look to federal law to determine what conduct gives rise to an action under the statute. 'Congress has not evinced any intention to defer to the states the definition of the federal right created in section 1983 . . . .' (Donovan v. Reinbold (9th Cir.1970) 433 F.2d 738, 742; see Note, Civil Rights Suits Against State and Local Governmental Entities and Officials: Rights of Action, Immunities, and Federalism (1980) 53 So.Cal.L.Rev. 945, 952-954; 1 Antieau, Federal Civil Rights Acts (2d ed. 1980) §§ 51-52, pp. 94-95.) There remains a question, however, with respect to whether state or federal law should apply to determine whether a plaintiff has filed a complaint that adequately alleges the wrongful conduct giving rise to a cause of action or claim for relief under section 1983." (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 560-561.)

"The rules of pleading in federal court are generally different from the rules of pleading in California state courts, since the Federal Rules of Civil Procedure recognize a form of 'notice pleading,' usually designed simply to put a defendant on notice of the nature of a claim, whereas California requires the pleading of facts pursuant to its system of 'code pleading' derived from the New York Code of 1848, known as the 'Field Code.' [Citations.]" (Bach v. County of Butte, supra, 147 Cal.App.3d at p. 561.)

State courts in California apply federal law to determine whether a complaint pleads a cause of action under section 1983 sufficient to survive a general demurrer. (Bach v. County of Butte, supra, 147 Cal.App.3d at p. 563.) Accordingly, we turn to the applicable federal law.

On appeal, essentially, Van argues that his "arrest" deprived him of his liberty without probable cause and lead to the deprivation of his property without due process of law.

The fourth amendment to the United States Constitution, applicable to the states through the fourteenth amendment, prohibits arrests without probable cause. (Beck v. Ohio (1964) 379 U.S. 89, 90-91.) Arrests without probable cause thus give rise to a cause of action for damages. (Gilker v. Baker (9th Cir.1978) 576 F.2d 245 [§ 1983 action]; see Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics (1971) 403 U.S. 388, 395, [constitutional damage action for unlawful arrest under color of federal law].)

"Our task in determining whether probable cause to arrest existed as a matter of law in this § 1983 action is slightly different from a similar determination in the context of a direct review of a criminal arrest. In the latter situation, we are called upon to review both law and fact and to draw the line as to what is and is not reasonable behavior. We are not always in agreement as to its location, but a line must be drawn. By contrast, in a § 1983 action the factual matters underlying the judgment of reasonableness generally mean that probable cause is a question for the jury. [Citations.]" (McKenzie v. Lamb (9th Cir.1984) 738 F.2d 1005, 1007-1008.)

"For purposes of a motion to dismiss a section 1983 complaint [fn. omitted], the allegations of the complaint are generally taken as true. [Citation.] Federal law sets up two standards of review of the sufficiency of section 1983 complaints depending on whether the complaint has been prepared by a pro per litigant or by an attorney. Where a section 1983 complaint is drafted by a pro per litigant, it is held 'to less stringent standards than formal pleadings drafted by lawyers . . . .' [Citations.]" (Bach v. County of Butte, supra, 147 Cal.App.3d at pp. 563-564.)

Thus, in a situation such as this, the sustaining of a demurrer would be appropriate only if Van had pled facts to show that his "arrest" was without probable cause. (See, Cohen v. Illinois Institute of Technology (7th Cir.1978) 581 F.2d 658, 663, ["The controlling standard . . . is that an action may be dismissed for failure to state a claim[[8]] only if it 'appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Furthermore, a pleading is insufficient to state a claim under the Civil Rights Act if the allegations are mere conclusions"].) Some particularized facts demonstrating a constitutional deprivation are needed to sustain a cause of action under the Civil Rights Act. (Kadlec v. Illinois Bell Tel. Co. (7th Cir.1969) 407 F.2d 624, 627.)

Since Van admitted that he destroyed Holmes's barbed wire, he did not and could not plead a violation of section 1983 for deprivation of his liberty without probable cause. As to his property, we find nothing in his complaint to support his allegation that defendants deprived him of his property. If, as Van contended in his opposition to defendants' demurrer, the deprivation of his "liberty by the Monterey County Sheriff is what caused [him] to be subjected to the loss of his property" we reiterate that his "arrest" was lawful. Accordingly, even if we were to accept that Van's "arrest" deprived him of his property, the defendants did not deprive Van of his property without due process of law.

Furthermore, for purposes of determining whether a public entity can be held liable under section 1983, " 'It is elementary that a municipality can only act through its high level, supervisory officials.' [Citations.] In order to plead a section 1983 claim against governmental defendants for the tortious conduct of employees under federal law, it is necessary at a minimum to allege the conduct occurred in execution of a government's policy or custom promulgated either by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. [Citations.]" (Bach v. County of Butte, supra, 147 Cal.App.3d at p. 569.) In the instant action, Van failed to plead that any "custom" of Monterey County was promulgated either by the county's lawmakers or by those whose edicts or acts may fairly be said to represent official policy.

Conclusion

Van failed to plead and could not amend his complaint to allege facts to justify relief on any legal theory. Accordingly, we conclude that the trial court properly granted defendants' demurrer without leave to amend.

Disposition

The judgment of dismissal is affirmed.

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ELIA, J.

WE CONCUR:

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PREMO, Acting P. J.

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BAMATTRE-MANOUKIAN, J.

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[1] Penal Code section 602 provides: "Except as provided in paragraph (2) of subdivision (v), subdivision (x), and Section 602.8, every person who willfully commits a trespass by any of the following acts is guilty of a misdemeanor: . . . [¶] (h)(1) Entering upon lands or buildings owned by any other person without the license of the owner or legal occupant, where signs forbidding trespass are displayed, and whereon cattle, goats, pigs, sheep, fowl, or any other animal is being raised, bred, fed, or held for the purpose of food for human consumption; or injuring, gathering, or carrying away any animal being housed on any of those lands, without the license of the owner or legal occupant; or damaging, destroying, or removing, or causing to be removed, damaged, or destroyed, any stakes, marks, fences, or signs intended to designate the boundaries and limits of any of those lands."

[2] Relevant here, Penal Code section 594 provides: "(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: . . . [¶] (2) Damages. [¶] (3) Destroys. . . . [¶] (b)(1) If the amount of . . . damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), or if the amount of . . . damage, or destruction is ten thousand dollars ($10,000) or more, by a fine of not more than fifty thousand dollars ($50,000), or by both that fine and imprisonment."

[3] Unless noted all undesignated statutory references are to the Code of Civil Procedure.

[4] We are aware of the inequity that is apparent in this case, that is the Sheriff's department and the District Attorney for reasons not evident from the record chose to proceed against Van and not Holmes. However, this state of affairs does not make Van's actions lawful.

[5] We use the term "arrest" loosely without deciding if Van's voluntary appearance to be booked could be an arrest, as that term is generally understood.

[6] We point out that Van's recourse in his dispute with Holmes was, and still is an action to quiet title. (§§ 760.010 et seq, 312 et seq.)

[7] All references to section 1983 refer to Title 42 of the United States Code.

[8] This is the federal equivalent of a demurrer.