Hall et al v. City of Fairfield et al

Filing 114

ORDER signed by Judge Garland E. Burrell, Jr on 3/23/12 re: Defendants' Objections to Final Pretrial Order; Supplement to Final Pretrial Order. (Donati, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Markus M. Hall, Monique G.
Rankin, Lindsey K. Sanders,

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Plaintiffs,

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v.
City of Fairfield, Officer Nick
McDowell, Officer Chris Grimm,
Officer Tom Shackford, Officer
Zack Sandoval, and Sergeant
Steve Crane,
Defendants.
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2:10-cv-00508-GEB-DAD
ORDER RE: DEFENDANTS’
OBJECTIONS TO FINAL PRETRIAL
ORDER; SUPPLEMENT TO FINAL
PRETRIAL ORDER*

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A Final Pretrial Order was filed on March 9, 2012 (“FPO”),

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which provided the parties an opportunity to “file and serve written

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objections to any part of the [FPO].” (ECF No. 99, 16:19-21.) Defendants

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filed an Objection to the FPO on March 15, 2012 (“Objection”), in which

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they argue certain claims listed in the FPO “have been fully adjudicated

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as a result of Defendants’ prior Motion for Summary Judgment and should

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not proceed to trial[.]” (ECF No. 100, 2:6-7.) Defendants further argue

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in

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outstanding” and should be added to those listed in the FPO. Id. at

the

Objection

that

additional

affirmative

defenses

“remain

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*

The final pretrial conference scheduled for March 26, 2012, is
vacated since Defendants’ Objections to the Final Pretrial Order and
Plaintiffs’ response thereto indicate the Final Pretrial Order should
become final, as supplemented herein. See Mizwicki v. Helwig, 196 F.3d
828, 833 (7th Cir. 1999)(“There is no requirement that the court hold a
pretrial conference.”).)
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5:23-24. Plaintiffs filed a Response to Defendants’ Objections on March

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20, 2012. (ECF No. 103.) Defendants’ arguments are addressed in turn.

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A.

Claims

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1)

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Defendants contend Plaintiff Hall’s battery claim against

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Defendant Sandoval should not proceed to trial, arguing: “this Court’s

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prior adjudication that the force employed in arresting Hall was not

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excessive and did not support a cause of action under 42 U.S.C. Section

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1983 . . . necessarily adjudicates the issue of reasonableness” in

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Hall’s “related” battery claim, “thereby requiring [that claim] to also

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be dismissed.” (Defs.’ Obj. 2:18-19, 3:5-8.)

Plaintiff Hall’s battery claim against Defendant Sandoval

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Plaintiffs counter, “Defendants have not and cannot cite to

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anything contained in the Court’s order on the parties’ cross-motions

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for summary judgment and summary adjudication which precludes Plaintiff

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Hall from pursuing his battery claim against Defendant Sandoval.” (Pls.’

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Resp. 2:15-17.) Plaintiffs further rejoin, “while the Court may have

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determined that Hall’s excessive force claim against Sandoval was

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subject to summary judgment, it did not find that Hall’s battery claim

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against Sandoval was subject to summary judgment, and Defendants’

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contention otherwise finds absolutely no support in the Court’s order.”

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Id. at 3:1-4.

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“In a battery action against a police officer,” a plaintiff

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must prove “unreasonable force as an element of the tort.” Edson v. City

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of Anaheim, 63 Cal. App. 4th 1269, 1272 (1998); see also JUDICIAL COUNCIL

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OF

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law to determine if the force used was unreasonable is identical to the

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test employed under federal law applying Section 1983.” Dang v. City of

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Garden Grove, No. SACV 10-00338 DOC (MILGx), 2011 WL 3419609, at *11

CAL. CIV . JURY INSTR . 1305 (2012). “The test employed under California

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(C.D. Cal. Aug. 2, 2011)(citing Saman v. Robbins, 173 F.3d 1150, 1156

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n.6 (9th Cir. 1999)); see also Brown v. Ransweiler, 171 Cal. App. 4th

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516, 527 (2009)(“Claims that police officers used excessive force in the

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course of an arrest, investigatory stop or other seizure of a free

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citizen are analyzed under the reasonableness standard of the Fourth

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Amendment to the United States Constitution.” (internal quotation marks

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omitted).).

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The Court previously granted partial summary judgment on

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Hall’s Fourth Amendment excessive force claim in favor of Defendants,

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stating, in relevant part: “Defendant Sandoval’s use of a control hold

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was objectively reasonable[.]” (ECF No. 95, 15:7-8.) The ruling on

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Hall’s federal excessive force claim was premised on Hall’s failure to

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show specific facts demonstrating that Sandoval acted unreasonably.

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Since “[the Court] h[eld] that [Defendant Sandoval’s] force used was not

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unreasonable [under the 4th Amendment], [Hall’s] state law [battery]

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claim must [also] fail.” Johnson v. Cnty. of Los Angeles, 340 F.3d 787,

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794 (9th Cir. 2003).

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Even though Sandoval failed to move for summary judgment on

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Hall’s state battery claim based on the same summary judgment factual

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record, the Court finds that Hall is not prejudiced by the sua sponte

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granting of summary judgment on this claim, since it is based on the

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same facts involved with Hall’s federal excessive force claim, and Hall

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had the opportunity to respond to Sandoval’s objection to inclusion of

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this claim in the FPO.

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For the stated reasons, Defendant Sandoval is granted summary
judgment on Plaintiff Hall’s battery claim.

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2)

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Defendants

Plaintiffs’ California Civil Code section 52.1 claims
argue

Plaintiffs’

“claim[s]

for

relief

under

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[California] Civil Code Section 52.1 fail[] as a matter of law” since

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“Plaintiffs were not engaged in any protected activities leading up to

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their arrest[.]” (Defs.’ Obj. 3:12-13.) Specifically, Defendants argue

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in “Plaintiffs’ verified responses to discovery[, Plaintiffs] claim they

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were exercising their constitutionally protected right to be in the

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In-N-Out Burger Restaurant[; h]owever, there is no right to ‘be in the

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In-N-Out Burger Restaurant.’” Id. at 3:14-16. Defendants also argue,

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“[t]o the extent Plaintiffs argue [these] claim[s are] predicated upon

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their race, such claims have already been adjudicated in Defendants’

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favor.” Id. at 3:24-25.

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“Plaintiffs counter that “Defendants [are] mak[ing] the very

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same argument that they made and lost in their summary judgment motion.”

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(Pls.’ Resp. 3:6-7.)

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Defendants have not shown that Plaintiffs’ California Civil

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Code

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Defendants’ Objection to inclusion of these claims in the FPO is

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overruled.

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section

3)

52.1

claims

should

not

proceed

to

trial.

Therefore,

Plaintiffs’ state law false arrest claims against
Defendants Grimm, Shackford, Sandoval and Crane

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Defendants argue the Court’s January 12, 2012, Order Re:

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Motions for Summary Judgment (“Summary Judgment Order”), which “held

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that Defendants . . . Grimm, Shackford, Sandoval and . . . Crane’s

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actions in arresting each of the Plaintiffs were ‘reasonable’ and

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insufficient

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stringent federal standard . . . necessarily precludes the identical

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state law claims for false arrest.” (Defs.’ Obj. 4:17-20, 5:7-10.)

to

support

a

claim

for

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false

arrest

under

the

more

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Plaintiffs counter “Defendants have not and cannot cite to

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anything

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precludes Plaintiffs . . . from pursuing their false arrest claims

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against Defendant Grimm, Shackford, Sandoval and Crane.” (Pls.’ Resp.

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4:10-13.) Plaintiffs further rejoin, the Court’s Summary Judgment Order

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“never stated that Grimm, Shackford, Sandoval and Crane had probable

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cause to arrest Plaintiffs[;]” rather, the Summary Judgment Order said

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Defendants “had an ‘arguable objective reasonable belief that [they] had

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probable cause.’” (Pls.’ Resp. 4:14-17 (quoting Summ. J. Order 11:13-

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contained

in

the

Court’s

[Summary

Judgment

Order]

which

14.)

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The Court granted “Defendants Grimm, Sandoval, Shackford and

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Crane’s motion for summary judgment of their affirmative defense of

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qualified immunity against each Plaintiff’s federal unlawful arrest

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claim[.]” (Summ. J. Order 17:21-26.) However, Defendants have not shown

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that the Court’s adjudication in Defendants’ favor on this “federal

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doctrine” precludes Plaintiffs from proceeding on their state law false

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arrest claims. See generally Cousins v. Lockyer, 568 F.3d 1063, 1072

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(9th Cir. 2009)(stating “qualified immunity is a doctrine of federal

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common law and, as such, has no application to [Plaintiff’s] state

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claims,

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Therefore, Defendants’ Objection to inclusion of these claims in the FPO

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is overruled.

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which

4)

are

subject

only

to

state

statutory

immunities”).

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Plaintiffs’ false arrest claims under federal law against
Defendant McDowell and Plaintiffs’ false arrest claims
under state law against all Defendants

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Defendants also argue “Defendants are immune from Plaintiffs’

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claims of false arrest” since the “Arrest Report for each Plaintiff’s

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arrest” included a Citizen’s Arrest Statement by In-N-Out Manager Marc

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Young, “which stated the following: ‘I hereby arrest the above person on
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the charge indicated herein and request a peace officer to take him/her

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into custody.’” (Defs.’ Obj. 5:13-17.)

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Plaintiffs rejoin, “[o]nce again, Defendants baldly attempt to

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re-litigate the very same issues that they made and lost in their

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summary judgment motion[,]” and nothing in the Summary Judgment Order

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“precludes Plaintiffs from pursuing their false arrest claims against

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Defendants.” (Pls.’ Resp. 5:8-14.)

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Defendants have not shown that Plaintiffs’ Fourth Amendment

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unlawful arrest claims against Defendant McDowell or Plaintiffs’ state

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law false arrest claims against all defendants should not be included in

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the FPO. Therefore, these objections are overruled.

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B.

Affirmative Defenses
Defendants argue that in addition to the affirmative defenses

listed in the FPO,
the
following
outstanding:

affirmative

defenses

remain

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1. [Whether] the use of force [was] reasonable
and authorized by California Penal Code Section
835(a)?

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2.
[Whether]
Penal
Code
Section
836.5
protect[s] the officers based upon their having
reasonable cause to believe the arrests were
lawful?
3. [Whether] Penal Code Sections 837 and/or
847 protect the officers from Plaintiffs’ claims as
the arrest was pursuant to a citizen’s arrest by
In-N-Out manager Marc Young?

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4. [Whether] there [is] a right guaranteed by
the Constitution to be at the In-N-Out Burger
Restaurant as necessary to support Plaintiffs’
California Civil Code Section 52.1 cause of action
against all Defendants?

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5. [Whether] Plaintiffs [were] comparatively
at fault for the incident and/or the resulting
damages?

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(Defs.’ Obj. 5:23-6:6.)

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Defendants’ above listed second and third proposed additional

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affirmative defenses will be preserved for trial. However, for the

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reasons stated below, the remaining proposed additional affirmative

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defenses are not preserved for trial.

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Concerning Defendants’ first proposed additional affirmative

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defense, unreasonable force is an element of a battery claim against a

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police officer. Edson, 63 Cal. App. 4th at 1272; see also JUDICIAL COUNCIL

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OF

CAL. CIV . JURY INSTR . 1305 (2012). Therefore, it is not an “affirmative

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defense,” and is not preserved as such for trial. See Zovkovic v. S.

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Calif. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002)(“A defense which

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demonstrates that plaintiff has not met its burden of proof is not an

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affirmative defense.”); see also J & J Sports Prods., Inc. v. Vizcarra,

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No.

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2011)(“Affirmative defenses plead matters extraneous to the plaintiff’s

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prima facie case, which deny plaintiff’s right to recover, even if the

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allegations of the complaint are true. In contrast, denials of the

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allegations in the complaint or allegations that the plaintiff cannot

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prove the elements of his claims are not affirmative defenses.”).

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11-1151

SC,

The

2011

essence

WL

of

4501318,

at

Defendants’

*2

(N.D.

fourth

Cal.

Sept.

proposed

27,

additional

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affirmative

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constitutional or statutory right to prevail on a claim under California

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Civil Code section 52.1. However, “interfere[nce] with or attempted

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interfere[nce] with [a] plaintiff’s constitutional or statutory right by

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threatening or committing violent acts” is an element of a section 52.1

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claim. Quinn v. Fresno Cnty. Sheriff, No. 1:10-cv-01617-OWW-SMS, 2011 WL

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1743746, at *10 (E.D. Cal. May 6, 2011)(citing Austin B. v. Escondido

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Union School Dist., 149 Cal. App. 4th 860, 882 (2007)); see also

defense

concerns

whether

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Plaintiffs

have

a

requisite

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Rodriguez v. City of Fresno, --- F. Supp. 2d ----, 2011 WL 1883195, at

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*13 (E.D. Cal. 2011)(“[I]n order to maintain a claim under the Bane Act,

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the coercive force applied against a plaintiff must result in an

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interference with a separate constitutional or statutory right. It is

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not sufficient that the right interfered with is the right to be free of

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the force or threat of force that was applied.”). Accordingly, it is not

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an affirmative defense and is not preserved as such for trial.

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Defendants’ fifth proposed additional affirmative defense of

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comparative fault is not preserved for trial since Plaintiffs do not

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allege a negligence claim against Defendants, and Defendants have not

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shown that comparative fault principles apply to Plaintiffs’ state law

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battery and false arrest claims. See Heiner v. Kmart Corp., 84 Cal. App.

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4th 335, (2000)(stating, “it is reasonably clear that apportionment of

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fault for injuries inflicted in the course of an intentional tort—such

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as the battery in this case—would have been improper”); see also Allen

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v.

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“comparative fault principles to the intentional tort of fraudulent

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concealment” and stating “while there may be sound policy arguments for

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extending comparative fault principles to intentional tortfeasors, there

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is as yet no authority to support such an extension”).

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Sundean,

C.

137

Cal.

App.

3d

216,

226

(1982)(declining

to

apply

Trial Exhibits

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Defendants filed a Pretrial Disclosure on March 16, 2012, in

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which Defendants list two anticipated trial exhibits that were not

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listed in the parties’ Amended Joint Pretrial Statement (“AJPS”). This

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filing

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pretrial

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requirements of Fed. R. Civ. P. 26(a)(3)”). Further, Defendants did not

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indicate in their Pretrial Disclosure why the two additional anticipated

was

unnecessary.

statements

See

filed

E.D.

Cal.

under

that

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R.

281(d)(stating

Local

Rule

parties’

“satisfy

the

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trial exhibits were not contained in the AJPS. However, since Plaintiffs

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have not objected to the inclusion of these additional documents as

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trial exhibits, they will be added to the list of exhibits in the FPO.

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For the stated reasons, the Final Pretrial Order filed on

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March 9, 2012, is final, and sections IV and IX(a) are supplemented as

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follows:

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IV. CLAIMS & AFFIRMATIVE DEFENSES
A.

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The following claims are preserved for trial:

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1)

2)

3)

4)

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Plaintiffs allege state false arrest claims against all

defendants; and

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Plaintiffs allege California Civil Code section 52.1

claims against all defendants;

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Plaintiff Sanders alleges a Fourth Amendment excessive

force claim against Defendants Crane and Shackford;

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Plaintiffs allege Fourth Amendment false arrest claims

against Defendant McDowell;

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Claims

5)

Plaintiff Sanders alleges a state battery claim against

Defendants Crane and Shackford.
B.

Affirmative Defenses

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The following affirmative defenses are preserved for trial:

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1)

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Whether

Defendants

had

probable

cause

to arrest

Plaintiffs;
2)

Whether Penal Code Section 836.5 immunizes Defendants

from Plaintiffs’ state law false arrest claims?
3)

Whether California Penal Code sections 837 and/or 847

immunize Defendants from Plaintiffs’ state law false arrest claims since

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each arrest was pursuant to the citizen’s arrest made by In-N-Out

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manager Marc Young; and

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4)

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Whether qualified immunity shields each defendant from

liability on each plaintiff’s federal claims.

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IX. EXHIBITS

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A.

The parties anticipate offering the exhibits listed in

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section 11 of the AJPS (ECF No. 98) and Defendants’ Pretrial Disclosures

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(ECF No. 101).

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IT IS SO ORDERED.
Dated:

March 23, 2012

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GARLAND E. BURRELL, JR.
United States District Judge

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