Avila et al v. State of California et al

Filing 89

ORDER signed by District Judge John A. Mendez on 7/19/17. The Court GRANTS Gonzalez' 52 MOTION for SUMMARY JUDGMENT on Jose's first, second and fifth claims. The Court DENIES the county's MOTION for SUMMARY JUDGMENT on Jose's first and second claims. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MELINDA AVILA; GRETEL
LORENZO; ALFREDO LORENZO; and
JOSE LORENZO,

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Plaintiffs,
v.
STATE OF CALIFORNIA; COUNTY
OF MADERA; RICHARD GONZALES;
PAUL VARNER, and DOES 3
through 100, inclusive,

No.

1:15-cv-00996-JAM-EPG

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS
GONZALES AND MADERA COUNTY’S
MOTION FOR SUMMARY JUDGMENT AS
TO JOSE LORENZO

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Defendants.
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The Court held a hearing on the summary judgment motion

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brought by the County of Madera (“the County”) and Deputy Richard

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Gonzales (“Gonzales”) (collectively, “County Defendants”) on June

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20, 2017.

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brief whether the Court should grant summary judgment in favor of

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the County Defendants on Jose Lorenzo’s (“Jose”) claims.

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9:25-10:1-3, Jun. 20, 2017, ECF No. 82.

ECF No. 78.

The Court asked the parties to further

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1

Tr.

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The County Defendants filed their supplemental brief moving

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for summary judgment on Jose’s claims, ECF No. 81, which Jose

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opposes, ECF No. 85.

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GRANTS Gonzales’ motion and denies the County’s motion.

For the reasons set forth below, the Court

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I.

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FACTS AND PROCEDURAL BACKGROUND

At about 2:00 a.m. on June 2, 2013, security at Chukchansi

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Gold Casino called the Madera County Sheriff’s Department

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regarding a disturbance.

Pls.’ Resp. to Defs.’ Statement of

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Undisputed Facts (“UF”) #1, ECF No. 61-5.

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the scene with Sergeant Larry Rich (another County officer) and

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two CHP officers.

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Gonzales responded to

UF #3.

Jose and the other plaintiffs were waiting outside in the

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casino’s portico when the officers approached them.

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It is disputed whether Jose was intoxicated and what Jose and the

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officers said to each other.

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UF ##7, 8.

After a couple of minutes of conversation, Rich arrested

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Jose.

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Alfredo Lorenzo (“Alfredo”) and took him to the ground.

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21.

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Gretel Lorenzo (“Gretel”), Jose’s daughter, approached them.

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#22.

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into Melinda Avila, knocking her down.

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the hospital via ambulance.

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were arrested, booked at the County jail, and released later that

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morning.

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UF #17.

Gonzales and Varner arrested Jose’s brother
UF ##20,

While Gonzales and Varner were trying to handcuff Alfredo,

Gonzales pushed Gretel away.

UF #26.

UF #24.

UF

Gretel fell backward

UF #24.

Avila went to

Jose, Gretel, and Alfredo

UF #27.

Jose brings five claims: (1) violation of California Civil
Code § 52.1 (“the Bane Act”); (2) false arrest/imprisonment;
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(3) intentional infliction of emotional distress (“IIED”);

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(4) negligent training and supervision; and (5) violation of

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federal constitutional rights pursuant to 42 U.S.C. § 1983.

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Third Amended Complaint at 6-18, ECF No. 22.

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dismissed the fourth claim entirely and the fifth claim as

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brought against the County.

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Jose voluntarily

ECF No. 65.

The County Defendants moved for summary judgment against

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Jose on his IIED claim in their original motion for summary

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judgment.

See Mot. for Summ. J. at 13-14, ECF No. 52-1.

The

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Court granted the County Defendants’ motion on Jose’s IIED claim

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at the June 20, 2017 hearing.

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Tr. 45:14-17.

The County Defendants now move for summary judgment on

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Jose’s first, second, and fifth claims.

County Defs.’

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Supplemental Mot. for Summ. J. (“Supp. Mot.”) at 1.

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II.

OPINION

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A.

First Claim: Bane Act

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The Bane Act “creates a right of action against any person

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who interferes by threat, intimidation, or coercion with the

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exercise or enjoyment by any individual or individuals of rights

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secured by the Constitution or laws of the United States.”

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Barragan v. City of Eureka, 2016 WL 4549130, *7 (N.D. Cal. Sept.

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1, 2016) (quoting Cal. Civ. Code § 52.1(a)) (internal quotation

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marks omitted).

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must show an underlying constitutional violation.

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San Mateo Cty., No. 16-CV-00252-LB, 2017 WL 1374518, at *13

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(N.D. Cal. Apr. 15, 2017); Mello v. Cty. of Sacramento, No.

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2:14-CV-02618-KJM, 2015 WL 1039128, at *4 (E.D. Cal. Mar. 10,

To succeed on a Bane Act claim, a plaintiff

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See May v.

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2015).

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violation of the Bane Act.”

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16-CV-03651-EMC, 2016 WL 7116927, at *6 (N.D. Cal. Dec. 7,

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2016).

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“Public entities may be vicariously liable for a

1.

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Galindo v. City of San Mateo, No.

Bane Act Claim Against the County

The County argues Jose cannot succeed on his Bane Act claim

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because he cannot show a constitutional deprivation.

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at 3.

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him of anything.

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Supp. Mot.

Defendants argue Gonzales did not touch Jose nor deprive
Id.

Jose argues the County “interfered with Jose’s state and

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federal statutory and constitutional rights” because “Rich

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violated Jose’s constitutional right not to be arrested without

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probable cause.”

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vicariously liable for Rich’s actions, the issue the Court must

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address is whether there is a triable issue of fact that Rich

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violated Jose’s constitutional rights.

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7116927, at *6.

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Opp’n at 4.

Because the County can be held

See Galindo, 2016 WL

An arrest “without probable cause or other justification”

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violates the Fourth Amendment.

Dubner v. City & Cnty. of San

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Francisco, 266 F.3d 959, 964 (9th Cir. 2001).

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Circuit law, “[p]robable cause exists when, under the totality

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of the circumstances known to the arresting officers, a prudent

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person would have concluded that there was a fair probability

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that [the suspect] had committed a crime.”

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F.3d 970, 976 (9th Cir. 2003) (quoting United States v. Buckner,

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179 F.3d 834, 837 (9th Cir. 1999)) (alterations in original).

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“Probable cause does not require certainty.”

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Jewelry, 950 F.2d 1437, 1455 (9th Cir. 1991).
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Under Ninth

Peng v. Penghu, 335

Fuller v. M.G.
If an arresting

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officer can provide “some evidence” of probable cause, the

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burden shifts to the plaintiff to show a lack of probable cause.

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Dubner, 266 F.3d at 965.

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In response to Jose’s argument that Rich violated his

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constitutional rights, the County argues that Jose does “not

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have any claims against the County of Madera alleging a

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constitutional violation” because Jose dismissed the § 1983

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claim against the County.

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dismissed his § 1983 claim against the County is not dispositive

Reply at 1.

But the fact that Jose

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on his Bane Act claim because “California law, unlike section

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1983 law under Monell, allows for vicarious liability.”

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Mateo, No. 15-CV-04694-JST, 2016 WL 463269, at *5 (N.D. Cal.

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Feb. 8, 2016).

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Peel v.

The County does not make, let alone support with evidence,

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any argument that Rich had probable cause to arrest Jose in

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their supplemental motion for summary judgment.

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such probable cause may exist in the depositions, but the Court

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“has no duty to search the record” for evidence on a summary

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judgment motion.

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WL 2219270, at *4 (E.D. Cal. Sept. 9, 2005)

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Evidence of

Daloian v. Veneman, No. CV-F-04-5436 LJO, 2005

The County has failed to meet its burden to provide “some

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evidence” that Rich had probable cause to arrest Jose.

Neither

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party has produced conclusive evidence to show whether Jose was

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intoxicated and “unable care for his own safety or the safety of

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others,” as required by the statute Jose allegedly violated.

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See Cal. Penal Code § 647(f).

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most favorable to Jose, Jose was not intoxicated to the extent

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that he could not care for his safety.

Taking the facts in the light

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The Court DENIES the

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County’s motion for summary judgment on Jose’s Bane Act claim.

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2.

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Bane Act Claim Against Gonzales

Rich, not Gonzales arrested Jose.

UF #17.

Jose therefore

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argues Gonzales “integrally participated” in Rich’s allegedly

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unconstitutional arrest of Jose.

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“Gonzales was ‘fundamentally involved’ in the arrest of Jose in

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that he was moving in such a way to as to assist Varner 1 in

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Varner’s arrest of Jose.”

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Opp’n at 6.

Jose argues

Id.

Gonzales responds that Jose has previously argued Alfredo

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was not holding on to Jose.

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has now “completely changed [his] version of the facts” to argue

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that Gonzales integrally participated in Rich’s arrest of Jose.

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Id.

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Varner did not integrally participate in Jose’s arrest and

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“there is no difference in the level of involvement of the two

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officers.”

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Reply at 2.

Gonzales argues Jose

Gonzales also argues that the Court has already ruled that

Id.

The Court agrees with Gonzales.

Jose has not cited to any

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factually similar cases where an officer who did not actually

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arrest an individual was found to “integrally participate” in

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that individual’s arrest.

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conclusory allegations that “Gonzales could have grabbed Jose’s

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arm in that arrest, but instead he chose to remove Alfredo.”

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Opp’n at 7.

Jose does not cite to any evidence to support this

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allegation.

Consistent with this Court’s ruling as to Varner’s

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lack of integral participation in Rich’s arrest of Jose, the

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Additionally, Jose makes only

Jose writes here that Varner arrested him, but the undisputed
facts indicate Rich arrested Jose. UF #17. The Court finds that
Jose meant to argue that Gonzales was fundamentally involved in
Rich’s arrest of Jose.
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Court finds Gonzales did not “integrally participate” in Jose’s

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arrest.

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Gonzales violated Jose’s constitutional rights.

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needs a constitutional violation to support his Bane Act claim,

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Jose cannot proceed on a Bane Act claim against Gonzales.

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Court therefore grants Gonzales’ motion for summary judgment on

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Jose’s Bane Act claim.

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violated his constitutional rights, Jose’s § 1983 claim against

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Gonzales also fails.

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There is no triable issue of fact as to whether
Because Jose

The

Because Jose has not shown that Gonzales

The Court also grants Gonzales’ motion for

summary judgment on Jose’s fifth claim.

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B.

Second Claim: False Arrest

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Under California law, false arrest and false imprisonment

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are not different torts.

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F.3d 1373, 1379 (9th Cir. 1998).

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way of committing a false imprisonment.”

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false imprisonment are: (1) the nonconsensual, intentional

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confinement of a person; (2) without lawful privilege; (3) for

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an appreciable period of time, however brief.

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of Marin, No. C 11-03085 JSW, 2012 WL 1207231, at *8 (N.D. Cal.

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Apr. 11, 2012).

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to whether the defendant had probable cause to arrest the

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plaintiff.

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(9th Cir. 2011).

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arrest, he is not liable for false arrest.”

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Angeles, No. CV1300868DMGRZX, 2015 WL 10945575, at *5 (C.D. Cal.

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Jul. 10, 2015).

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Martinez v. City of Los Angeles, 141
False arrest “is merely one
Id.

The elements of

Hernandez v. Cty.

The “without lawful privilege” element refers

Young v. Cty. of Los Angeles, 655 F.3d 1156, 1160-70

1.

“Where an officer has probable cause to
Vago v. Cty. of Los

False Arrest Claim Against the County

Jose makes the same argument he made against the County in
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support of his Bane Act claim: the County is vicariously liable

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for Rich’s unlawful arrest of Jose.

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Rich, who has been dismissed from this action, arrested him

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without probable cause.

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Jose cannot succeed on a false arrest claim against Gonzales.

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Supp. Mot. at 4, Reply at 2.

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Jose’s allegation that Rich arrested him without probable cause.

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Again, because this is a California state law claim, and not a

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§ 1983 claim, the County can be vicariously liable for Rich’s

Id. at 6.

Opp’n at 5.

Jose argues

The County argues only that

The County does not respond to

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actions.

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San Diego, No. 12-CV-2437-GPC-RBB, 2014 WL 231039, at *8 (S.D.

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Cal. Jan. 21, 2014).

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See Cal. Gov't Code § 815.2; see also Said v. Cty. of

The Court finds that the County has not met its burden to

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show that Rich arrested Jose with probable cause.

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DENIES the County’s motion for summary judgment on Jose’s second

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claim.

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2.

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The Court

False Arrest Claim Against Gonzales

Gonzales argues Jose “make[s] no argument and cannot allege

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any facts to show that Deputy Gonzales intentionally confined

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[him] at any time.”

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Jose thus concedes that summary judgment in favor of Gonzales is

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proper on Jose’s false arrest claim.

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summary judgment motion as to Jose’s second claim.

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///

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///

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///

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///

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///

Supp. Mot. at 4.

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Gonzalez is correct.

The Court grants Gonzales’

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III.

ORDER

For the reasons set forth above, the Court GRANTS Gonzales’

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motion for summary judgment on Jose’s first, second, and fifth

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claims.

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judgment on Jose’s first and second claims.

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The Court DENIES the County’s motion for summary

IT IS SO ORDERED.
Dated:

July 19, 2017

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