Notter v. City of Pleasant Hill et al

Filing 72

ORDER by Magistrate Judge Jacqueline Scott Corley denying 56 Motion for Partial Summary Judgment; denying 60 Motion for Summary Judgment. (ahm, COURT STAFF) (Filed on 6/23/2017)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 LISA NOTTER, Plaintiff, 10 United States District Court Northern District of California 11 12 13 Case No.16-cv-04412-JSC ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT v. CITY OF PLEASANT HILL, et al., Re: Dkt. Nos. 56, 60 Defendants. 14 15 Plaintiff Lisa Notter brings this civil action alleging violation of her civil rights in 16 connection with her arrest at her home following a noise complaint regarding the music at her 17 daughter’s wedding reception. The parties’ cross-motions for summary judgment are now 18 pending before the Court. (Dkt. Nos. 56 and 60.) Having considered the parties’ briefs and 19 having had the benefit of oral argument on June 22, 2017, the Court DENIES the parties’ cross 20 motions for summary judgment. Given the multiple factual disputes with respect to each of 21 Plaintiff’s claims, summary judgment is inappropriate. 22 SUMMARY JUDGMENT EVIDENCE 23 Plaintiff Lisa Notter planned to host her daughter’s wedding reception at her home in 24 Pleasant Hill, California on August 8, 2015. (Dkt. No. 65-2, Notter Decl. ¶ 2.) In advance of the 25 reception, she contacted the Pleasant Hill Police Department to inquire whether there were any 26 noise restrictions in place and whether there was anything she should do in advance. (Id.) The 27 officer she spoke with advised her that there “there were none per se, but that the music should be 28 turned down by midnight.” (Id. (emphasis in original).) The officer recommend that she 1 distribute a flyer to her neighbors advising them of the wedding reception and that music would be 2 played until 12 a.m. (Id.) Plaintiff was also advised to send a copy of the flyer to the Pleasant Hill 3 Police Department. (Id.) Plaintiff created such a flyer and distributed it to her neighbors and 4 provided a copy to the Pleasant Hill Police Department. (Id.; Dkt. No. 65-2 at 9.1) 5 On the night of the wedding, Pleasant Hill Police Department Watch Commander Sergeant 6 Ronald Priebe made note of the flyer regarding the wedding reception at the start of shift briefing. 7 (Dkt. No. 61-1 at 6 (Police Report); Dkt. No. 61-2, Wright Depo. at 59:15-23; Dkt. No. 65-1 at 44, 8 Priebe Depo. at 69:22-70:20.) At 10:18 p.m. that night, the Pleasant Hill Police Department 9 received a noise complaint regarding 503 Masefield Dr. (Dkt. No. 61-1 at 3 (Police Report).) Sergeant Priebe thereafter matched the noise complaint to the flyer from the briefing earlier that 11 United States District Court Northern District of California 10 evening and although there was no phone number on the flyer, he looked up the phone number 12 associated with the address and receiving no answer left a voicemail advising the home owners of 13 the noise complaint. (Dkt. No. 61-4, Priebe Depo. at 88:15-89:19.) Officers Chelsea Wright and Sean Bias, who worked as beat partners, were thereafter 14 15 dispatched to 503 Masefield Drive—Plaintiff’s residence—at 11:15 p.m.2 (Dkt. No. 61-1 (Police 16 Report); Dkt. No. 61-2, Wright Depo. at 72:12-17; Dkt. No. 61-3, Bias Depo. at 100:13-19.) They 17 arrived separately. (Dkt. No. 61-3, Bias Depo. at 99:19-100:12.) Officer Wright arrived first at 18 11:18 p.m. (Dkt. No. 65-1 at 74:17-19.) Upon her arrival, she encountered three to five young 19 adults standing outside the house who were acting as valets for the party. (Id. at 75:12-24; 77:22- 20 24.) She asked if any of them were the homeowner and they all denied being the homeowner. (Id. 21 at 76:3-16.) According to Officer Wright the music was so loud she felt like she was screaming or 22 raising her voice very high just to hear herself talk.” (Id. at 78:14-20.) The front door was open. 23 (Dkt. No. 65-2, Notter Decl. at ¶ 4; Dkt. No. 65-1 at 12, Wright Depo. at 126:9-11.) Officer 24 Wright testified that she did not ask any of the valets whether she could enter the house, but one of 25 26 27 28 1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 2 Officer Wright has since married and changed her surname to Ortega, and has been promoted to Detective. For purposes of clarity, the Court nonetheless refers to her as Officer Wright—her name and title at the time of the incident—throughout. 2 1 the valets offered to help her find the homeowners and he escorted Officer Wright into the house. 2 (Id. at 125:1-7; 132:6-16.) 3 Several individuals, including one of the valets, Dante Deluca, dispute Officer Wright’s version of events. Dante Deluca testified that the exchange with Officer Wright went as follows: 5 “She was like, where’s the owner of the house. And I was like, I think they’re in the back. I’ll go 6 get them. And then I went into the backyard, and before I could even find her, I look on the dance 7 floor and the cop’s talking to Lisa Notter.” (Dkt. No. 65-1, Deluca Depo. at 8:17-23; Dkt. No. 65- 8 1 at 64 (Dante Deluca Decl.).) Likewise, Lynn Deluca testified that when Officer Wright 9 approached and asked where the homeowners were, Dante said “I can go get them for you” and 10 started walking towards the front door. (Dkt. No. 65-1 at 55, Lynne Deluca Depo. at 11:28-24.) 11 United States District Court Northern District of California 4 Ed Deluca testified to the same effect: Dante “said, hold on, I’ll go get them.” (Dkt. No. 65-1 at 12 61, Ed Deluca Depo. at 9:12.) 13 The parties agree that when Officer Wright arrived in the backyard she approached 14 Plaintiff who confirmed that she was the homeowner. Officer Wright then advised Plaintiff that 15 there had been a noise complaint regarding the music and she needed to turn the music off. (Dkt. 16 No. 61-2, Wright Depo. at 84:19-24.) The parties also agree that Plaintiff advised Officer Wright 17 that she had contacted the police department in advance and they told her that she was allowed to 18 have the music on until midnight. (Id. at 85:1-10.) Thereafter, however, the parties’ version of 19 events again diverges. 20 1) Plaintiff’s Version of Events Regarding the Arrest 21 Officer Wright approached Plaintiff in the backyard with her hand on her gun and told 22 Plaintiff in a loud and aggressive manner: “I’m shutting you down” and made a cut-off sign with 23 her hand. (Dkt. No. 65-1 at 109, Notter Depo. 114:7-116:11; Dkt. No. 65-2, Notter Decl. at ¶ 5.) 24 Plaintiff responded that she had permission to have the music on from the police department, 25 Officer Wright stated “no, you didn’t,” “you don’t know shit about the rules”, and repeated that 26 she was shutting the party down. (Dkt. No. 65-1 at 109, Notter Depo. at 117:4-14; Dkt. No. 65-2, 27 Notter Decl. at ¶ 6.) Plaintiff’s husband attempted to come over to talk to Officer Wright and she 28 told him to “get back sir, I will speak to your wife.” (Dkt. No. 65-2, Notter Decl. at ¶ 6.) Plaintiff 3 was concerned because Officer Wright “was standing excessively close” to her. (Id.) Plaintiff is a 2 petite, 63 year-old woman. (Id.) Plaintiff then turned away from Officer Wright to tell the DJ to 3 turn the music off. (Dkt. No. 65-1 at 109, Notter Depo. at 117:22-23.) There was a small plastic 4 cup in Plaintiff’s right hand which was half full of water and as she was turning she threw her 5 hands in the air to say “whatever” and the contents of the cup of water flew into the air. (Id. at 6 119:6-13; Dkt. No. 65-2, Notter Decl. at ¶ 7.) Plaintiff took one or two steps and the next thing 7 she knew she had an officer on either side of her “pushing” her towards the side of the house. 8 (Dkt. No. 65-1 at 110, Notter Depo. at 120:15-24.) Once in the side yard, Officer Wright spoke to 9 someone on the radio, and immediately thereafter, the officers ordered Plaintiff to put her arms 10 behind her back. (Id. at 130:11-19.) Plaintiff called Officer Wright a “bitch” and as the officers 11 United States District Court Northern District of California 1 handcuffed her she cried out “you are hurting me” to which Officer Wright responded “Oh, does 12 this hurt?” and tightened the handcuffs over Plaintiffs’ bracelets. (Id. at 130:22-131: 24.) Plaintiff 13 cried out multiple times that the officers were hurting her, but the officers ignored her. (Id. at 14 133:18-22.) During this time, Plaintiff directed derogatory remarks such as “bitch,” “jackass,” 15 and “cunt” at the officers. (Dkt. No. 65-2 at ¶ 10.) 16 Plaintiff was then pushed out the gate of the side yard into the front yard with the officers 17 lifting her along; during this process one of the officers hit her back left heel at which point 18 Plaintiff said “you’re hurting me” and her knees buckled. (Id. at 133:24-135:21.) Plaintiff was 19 then taken over to the police vehicle and “pushed over the trunk of the car with [her] hands behind 20 her back.” (Id. at 137:0-14.) Officer Wright then forcefully put Plaintiff in the police vehicle. 21 (Id. at 139:9-10.) While being driven to the station, Plaintiff continued to call Officer Wright a 22 bitch and told her that she single handedly ruined her daughter’s wedding. (Id. at 142:19-143:12.) 23 On a turn, Plaintiff fell over on her side and asked Officer Wright to help, but she did not respond. 24 (Id. at 143:18-144:14.) 25 Several other witnesses confirm Plaintiff’s version of events. Plaintiff’s husband testified 26 that his wife and Officer Wright were arguing and when Plaintiff turned around to tell the DJ to 27 turn off the music, some water flew out of a cup that she was holding. (Dkt. No. 65-1, Craig 28 Notter Depo. at 42:15-24.) Although he did not see the water land on Officer Wright, she 4 1 immediately began yelling that she had been assaulted. (Id. at 43:20-21.) Officer Wright then got 2 on her radio and was saying “this is assault, right?” (Id. at 45:22-24.) Both Officer Wright and 3 Officer Bias then escorted Plaintiff off the dance floor and into the side yard; in doing so, “they 4 roughly grabbed her arms and lifted her, and she tip toed where they wanted her to go.” (Id. at 5 46:17-23.) He later heard Plaintiff say “you’re hurting me.” (Id. at 51:4.) He then saw Plaintiff 6 taken from the side yard over to the police vehicle where she was pushed onto the trunk of the 7 vehicle and he could hear the pain in her voice. (Id. at 52:6-24.) The officers then put her in the 8 back seat and drove off. (Id. at 54:2.) 9 Wedding guest Nancy Hill attests that both Officer Bias and Officer Wright were present from the beginning of the altercation, and Officer Wright got in Plaintiff’s face while scolding her 11 United States District Court Northern District of California 10 about the noise. (Dkt. No. 65-3, Hill Decl. at ¶ 2.) According to Ms. Hill, Plaintiff turned around, 12 said “[b]ut this is my house!” and walked away from the officer while tossing cup of water in the 13 air. (Id.) At the same time, Officer Wright stepped forward and the water landed on her. (Id.) 14 The “lady officer then looked at the other officer and said ‘that’s assault’ and they quickly 15 proceeded and went after Mrs. Notter as she was walking around the house.” (Id.) Ms. Hill could 16 not see the officers or Plaintiff, but heard Plaintiff say “[s]top! You’re hurting me!! I didn’t do 17 anything wrong! This is my daughter’s wedding reception! Leave me alone!” (Id.) 18 Another guest, Jonathan Antes, submitted a declaration attesting that Plaintiff “thr[e]w up 19 her hands in disgust, and tossing her small cup of water with it.” (Dkt. No. 65-1 at 86 (Antes 20 Decl.).) He further attests that the officers chased after Plaintiff and a few minutes later he walked 21 over saw Plaintiff handcuffed and she kept repeating “you’re hurting me, you’re hurting me.” 22 (Id.) Likewise, Dante Deluca, the valet, testified that Plaintiff was screaming as the officers 23 tightened her cuffs and after Plaintiff asked if the officers could move the handcuffs off her 24 bracelets, but they instead tightened them more. (Dkt. No. 65-1 at 50, Dante Deluca Depo. at 25 9:16-25.) 26 2) Defendant’s Version of Facts Regarding the Arrest 27 For her part, Officer Wright insists that Plaintiff was belligerent, argumentative, and 28 appeared intoxicated from the beginning of the encounter. (Dkt. No. 61-2, Wright Depo. at 85:115 1 19.) Officer Wright testified that Plaintiff uttered several profanities, called Officer Wright a 2 “bitch” and stated that she was ruining her daughter’s wedding. (Id. at 86:7-14.) Shortly after 3 Officer Wright’s arrival, the DJ turned the music down and Plaintiff asked if it was good enough 4 to which Officer Wright responded, “no, it has to be all the way off.” (Id. at 86:15-18.) Plaintiff 5 then turned away from Officer Wright and “with the cup that she had in her hand, threw it over her 6 shoulder in my direction, which caused the contents of that cup to land on my shoulder.” (Id. at 7 87:22-88:2.) Officer Wright turned to look for backup because she was concerned the situation 8 was escalating and saw Officer Bias walking towards her on the dance floor. (Id. at 88:8-11.) 9 Officer Wright told Officer Bias that Plaintiff had just thrown water at her and the officers escorted Plaintiff to the side yard. (Id. at 88:12-89:3.) While this was happening, Plaintiff was 11 United States District Court Northern District of California 10 yelling at the officers calling Officer Wright a “bitch” and Officer Bias a “jackass,” and stating 12 that both were ruining her daughter’s wedding. (Id. at 89:5-9.) Officer Wright called Sergeant 13 Priebe, the watch commander, over her radio to inform him what happened and he confirmed that 14 she should make an arrest. (Id. at 90:2-8.) Officer Wright then attempted to handcuff Plaintiff, 15 but she was pulling away and screaming “I’m the mother of the bride you bitch.” (Id. at 90:18- 16 24.) Officer Wright received an abrasion on her hand trying to handcuff Plaintiff, but eventually 17 she got the handcuffs on. (Id. at 90:25-91:4.) Officer Wright recalls Plaintiff saying something 18 about her bracelets as she did so, so she adjusted the handcuffs. (Dkt. No. 65-1 at 21, Wright 19 Depo. at 205:16-19.) However, Officer Wright does not recall Plaintiff complaining that the 20 handcuffs were hurting her. (Id. at 207:15-208:15.) As the officers moved Plaintiff from the side 21 yard into the front yard, she dropped her weight on the officers and dug her nails into Officer 22 Wright’s hands. (Dkt. No 61-2, Wright Depo. at 91:16-22.) Plaintiff was then placed in the 23 police vehicle. (Id. at 92:2-3.) Officer Wright drove Plaintiff to the Pleasant Hill Police Station. 24 Officer Bias generally corroborates Officer Wright’s version of events. According to the 25 logs, he arrived at Plaintiff’s home a minute after Officer Wright. (Dkt. No. 61-3, Bias Depo. at 26 105:23.) He testified that within ten seconds of his arrival in the backyard Officer Wright had 27 advised him of the assault and the officers laid hands on Plaintiff to move her off the dance floor. 28 (Dkt. No. 65-1 at 36, Bias Depo at 21:25.) Plaintiff was cursing as she was being escorted to the 6 1 side yard. (Id. at 125:4-6.) Officer Wright then informed Officer Bias that Plaintiff was being 2 arrested for violation of Penal Code 243(B). (Id. at 158:16-18.) Each officer then grabbed one of 3 Plaintiff’s wrists, pulled her hands behind her back and handcuffed her. (Id. at 159:2-5.) Officer 4 Bias does not recall Plaintiff complaining that the handcuffs were hurting her. (Id. at 160:5-21.) 5 The officers then escorted Plaintiff into the front yard and as they did so Plaintiff dropped her 6 weight so that the officers had to carry her to the vehicle. (Dkt. No. 61-3, Bias Depo. at 129:2-7.) 7 Sergeant Priebe arrived at Plaintiff’s residence after she had been loaded into the squad 8 car. (Dkt. No. 61-4, Priebe Depo. 95:3-9.) Sergeant Priebe spoke briefly to Plaintiff’s husband 9 and son-in-law, but they said they had not seen what happened prior to the arrest. (Id. at 98:22- 10 25.) United States District Court Northern District of California 11 3) Facts Following the Arrest 12 Both parties’ versions of what transpired at the Pleasant Hill Police Station are largely the 13 same and are supported by the transcription of audio from the station. (Dkt. No. 65-1 at 90-106.) 14 At the police station, Plaintiff was led to a bench and immediately asked to use the restroom. 15 (Dkt. No. 61-2, Wright Depo. at 221:3-6; Dkt. No. 65-1 at 91 (audio transcription.) The officer 16 did not respond to her request to use the restroom and instead took down some information and 17 searched Plaintiff. (Dkt. No. 65-1 at 92.) Sergeant Priebe then arrived and spoke with Plaintiff. 18 He explained about the noise complaint and Plaintiff said “you’ve managed to ruin my daughter’s 19 wedding” to which Sergeant Priebe stated “Okay, I see it a different way.” (Id. at 94.) Plaintiff 20 went on to describe Officer Wright as a “belligerent human” and stated “I tossed water over my 21 shoulder, princess got in the way. Her left shoulder got a little water on it.” (Id.) Sergeant Priebe 22 responded that it was an assault and Plaintiff said “I was not aiming at her.” (Id.) Officer Wright 23 then read Plaintiff her rights and Plaintiff asked to speak to an attorney. (Id. at 96.) Sergeant 24 Priebe then began processing Plaintiff and said “now the point from now forward was whether 25 you’re going to be cooperative, which you have been so far, okay, and reasonable. Okay [So you] 26 get to decide whether you go to county jail or go home.” (Id. at 98 (additional text in original).) 27 Plaintiff responded that she would like to go home. (Id.) Sergeant Priebe stated “I bet you would. 28 But I’m not going to have you stare her down and talk a bunch of crap, okay? You can have your 7 1 opinion, you’re totally entitled to that, okay? But we’re not going to be petty and we’re not going 2 to continue to act like we’re intoxicated and can’t care for ourselves. Because if that is the case, 3 then I have to send you to jail until you’re sober. Do you understand that?” (Id.) Plaintiff 4 responded “absolutely” and asked to go to the bathroom again. (Id.) She was told “in just a little 5 bit.” (Id.) Nothing happened for another nearly six minutes and then Plaintiff again asked to use 6 the restroom and was given permission to do so. (Id. at 99.) Officer Wright then asked Plaintiff to 7 sign some paperwork and take off her jewelry. (Id. at 100.) Plaintiff was then told that she was 8 being transferred to the county jail. (Id. at 101.) Plaintiff responded “[b]ut you said that if I 9 cooperated that I could go home.” Sergeant Priebe responded “[y]ou’re functionally cooperating 10 but the attitude test has not been passed.” (Id.) United States District Court Northern District of California 11 Plaintiff was transferred to the county jail in Martinez where she spent the night. (Dkt. No. 12 65-2, Notter Decl. at ¶ 11.) She was released the following morning. (Dkt. No. 65-1 at 80, Craig 13 Notter Depo. at 61:8-62:14.) She alleges that following the incident with Officers Wright and 14 Bias, she had bruising on her wrists, arms, and torso, as well as a fracture on her heel. (Dkt. No. 15 65-1 at 117, Notter Depo. at 194:3-197:18; 209:16-23.) 16 17 PROCEDURAL HISTORY A year after the incident, Plaintiff filed this civil action against the City of Pleasant Hill, 18 the Pleasant Hill Police Department, and Officer Chelsea Wright. (Dkt. No. 1.) Plaintiff pled 14 19 claims for relief including claims under Section 1983 and state law. Defendants moved to dismiss 20 for failure to state a claim and the Court granted the motion in part and denied it in part. (Dkt. 21 Nos. 8 & 22.) Plaintiff thereafter filed her First Amended Complaint which again pleads 14 22 claims for relief against Defendants the City of Pleasant Hill, Officer Wright, Officer Bias, and 23 Sergeant Priebe: (1) unconstitutional search in violation of Section 1983 (as to Wright); (2) 24 unconstitutional seizure in violation of Section 1983 (as to Wright and Bias); (3) excessive force 25 in violation of Section 1983 (as to Wright and Bias); (4) unconstitutional search in violation of the 26 Bane Act, California Civil Code Section 52.1 (as to Wright and Pleasant Hill); (5) unconstitutional 27 seizure in violation of the Bane Act, California Civil Code Section 52.1 (as to Wright, Bias, and 28 Pleasant Hill); (6) excessive force in violation of the Bane Act, California Civil Code Section 52.1 8 1 (as to Wright, Bias, and Pleasant Hill); (7) violation of Plaintiff’s First Amendment rights under 2 the Bane Act, California Civil Code Section 52.1 (as to Wright, Priebe, and Pleasant Hill); (8) 3 invasion of privacy (as to Wright, Bias, and Pleasant Hill); (9) trespass (as to Wright, Bias, and 4 Pleasant Hill); (10) false imprisonment/arrest (as to Wright, Bias, Priebe, and Pleasant Hill); (11) 5 battery and assault (as to Wright, Bias, and Pleasant Hill); (12) intentional infliction of emotional 6 distress (as to Wright); (13) defamation (as to Wright, Does, and Pleasant Hill); and (14) 7 negligence (as to Wright, Bias, Priebe, and Pleasant Hill). (Dkt. No. 27.) 8 voluntarily dismissed her 13th claim for defamation and all claims as to Sergeant Priebe. (Dkt. 9 No. 35.) Officers Wright and Bias, and Pleasant Hill thereafter answered the complaint. (Dtk. No. 10 United States District Court Northern District of California 11 12 36.) Plaintiff then filed the now pending motion for partial summary judgment and Defendants filed a motion for summary judgment on all of Plaintiff’s claims. (Dtk. Nos. 56 & 60.) LEGAL STANDARD 13 14 Plaintiff thereafter Summary judgment is appropriate “if the movant shows that there is no genuine dispute as 15 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Proc. 16 56(a). The Court must draw “all reasonable inferences [and] resolve all factual conflicts in favor of 17 the non-moving party.” Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004). A 18 fact is material if it “might affect the outcome of the suit under the governing law,” and an issue is 19 genuine if “a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty 20 Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There can be “no genuine 21 issue as to any material fact” when the moving party shows “a complete failure of proof 22 concerning an essential element of the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 23 U.S. 317, 323 (1986). 24 When the party moving for summary judgment does not bear the burden of proof at trial 25 (usually the defendant), the party has the burden of producing evidence negating an essential 26 element of each claim on which it seeks judgment or showing that the opposing party cannot 27 produce evidence sufficient to satisfy her burden of proof at trial. Nissan Fire & Mar. Ins. Co., 28 Ltd. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party meets that burden, 9 1 the non-moving party must show that a material factual dispute exists. California v. Campbell, 2 138 F.3d 772, 780 (9th Cir. 1998). When the party moving for summary judgment would bear the 3 burden of proof at trial (usually the plaintiff), “it must come forward with evidence which would 4 entitle it to a directed verdict if the evidence went uncontroverted at trial.” C.A.R. Transp. 5 Brokerage Co., Inc. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal quotation 6 marks and citation omitted). “In such a case, the moving party has the initial burden of 7 establishing the absence of a genuine issue of fact on each issue material to its case. Once the 8 moving party comes forward with sufficient evidence, the burden then moves to the opposing 9 party, who must present significant probative evidence tending to support its claim or defense.” Id. 10 United States District Court Northern District of California 11 (internal quotation marks and citation omitted). Where, as here, the parties cross-move for summary judgment on a claim (here, the Section 12 1983 claim for unlawful entry), the court is required to review the evidence submitted by the 13 parties in support of their own motions and in opposition to the opposing party’s motion in 14 deciding each summary judgment motion. Fair Hous. Council of Riverside Cnty., Inc., v. 15 Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001). Further, that both parties move for summary 16 judgment on the same claims does not mean that the facts are undisputed; rather, the court must 17 independently evaluate whether a dispute of fact exists which defeats either summary judgment 18 motion. Id. EVIDENTIARY OBJECTIONS 19 20 Defendants have raised a number of evidentiary objections regarding the evidence Plaintiff 21 has submitted in support of her motion for summary judgment and in opposition to Defendants’ 22 motion for summary judgment. Because the Court has not considered or relied upon any of the 23 disputed evidence in reaching its decision herein, it sustains Defendants’ objections, albeit not on 24 the merits. 25 26 DISCUSSION Plaintiff moves for summary judgment on her first claim for relief that Officer Wright’s 27 warrantless entry into her home violated her Fourth and Fourteenth Amendment rights. 28 Defendants move for summary judgment on each of Plaintiff’s claims. Given the multiple factual 10 1 disputes, summary judgment is improper on any claim. 2 A. Plaintiff’s Section 1983 Claims 3 “Section 1983 does not create any substantive rights, but is instead a vehicle by which 4 plaintiffs can bring federal constitutional and statutory challenges to actions by state and local 5 officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To prevail on a Section 1983 6 claim, Plaintiff must show that the alleged conduct both occurred “under color of state law” and 7 deprived Plaintiff of a constitutional or federal statutory right. S. Cal. Gas Co. v. City of Santa 8 Ana, 336 F.3d 885, 887 (9th Cir. 2003). 9 Plaintiff pleads three Section 1983 claims predicated on violation of her rights under the Fourth and Fourteenth Amendments: (1) unlawful warrantless search, (2) unlawful arrest, and (3) 11 United States District Court Northern District of California 10 excessive force. Essentially, Plaintiff alleges that Officer Wright unlawfully entered her home, 12 that her resulting arrest was without probable cause, and that the officers used excessive force 13 during the arrest. There is no dispute that Officers Wright and Bias were acting under color of 14 law; thus, the only question is whether they are entitled to summary judgment because there is no 15 dispute of fact with respect to the entry, arrest, or use of force, or, even if there is, whether they are 16 entitled to qualified immunity. 17 1) Warrantless Entry Claim 18 Plaintiff contends that Officer Wright’s entry into her home violated the Fourth 19 Amendment because she did not have a warrant, there was no consent to her entry, and no 20 emergency or exigency exception applies. Officer Wright counters that she believed she had 21 consent to enter the house because one of the valets offered to show her where the homeowner 22 was and led her into the house, and the valet had apparent authority to consent to her entry into the 23 residence. 24 a) Disputes of Fact Prevent Summary Judgment 25 “A warrantless entry into a home violates the Fourth Amendment unless an exception to 26 the Fourth Amendment warrant requirement applies, such as emergency, exigency, or consent.” 27 Espinosa v. City & Cty. of S.F., 598 F.3d 528, 533 (9th Cir. 2010). The parties agree that the 28 emergency or exigency exceptions do not apply; the issue is consent. 11 1 “A third party’s consent to the search of another person’s belongings is valid if the 2 consenting party has actual or apparent authority to consent.” United States v. Ruiz, 428 F.3d 877, 3 880 (9th Cir. 2005). Actual authority to consent exists where: “(1) a third party had shared use 4 and joint access to or control over a searched area; or (2) the owner of the property to be searched 5 has expressly authorized a third party to give consent to the search.” United States v. Arreguin, 6 735 F.3d 1168, 1174 (9th Cir. 2013)(internal citation and quotation marks omitted). Absent proof 7 of actual authority, consent may be established by means of the apparent authority doctrine. Id. at 8 1174-75. “Under the apparent authority doctrine, a search is valid if the government proves that 9 the officers who conducted it reasonably believed that the person from whom they obtained 10 United States District Court Northern District of California 11 consent had the actual authority to grant that consent.” Id. The Ninth Circuit has adopted a three-part test for establishing apparent authority: (1) did 12 the searching officer believe some untrue fact that was then used to assess the extent of the 13 consent-giver’s use of and access to or control over the area searched; (2) under the circumstances 14 was it objectively reasonable to believe that the fact was true; and (3) assuming the truth of the 15 reasonably believed but untrue fact, would the consent-giver have had actual authority. Ruiz, 428 16 F.3d at 880-81; see also Illinois v. Rodriguez, 497 U.S. 177, 188–89 (1990) (“determination of 17 consent to enter must be judged against an objective standard: would the facts available to the 18 officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party 19 had authority over the premises? If not, then warrantless entry without further inquiry is unlawful 20 unless authority actually exists.”) (internal citation and quotation marks omitted). Indeed, “[e]ven 21 when the invitation [to search] is accompanied by an explicit assertion that the person lives there, 22 the surrounding circumstances could conceivably be such that a reasonable person would doubt its 23 truth and not act upon it without further inquiry.’” Rodriguez, 497 U.S. at 188. Apparent authority 24 exists where “numerous indicia of authority supported the officers’ acceptance of consent to 25 search.” Arreguin, 735 F.3d at 1177 n.9 (concluding there was no apparent authority where the 26 officers “did not know the legal occupants of the Residence; they did not ask for or receive 27 identifying information from [the person who answered the door]; they did not ask for or receive 28 information about [the person who opened the door’s] control or authority over the Residence; and 12 1 they did not specifically obtain permission from [the person who opened the door] to search the 2 entire premises”). “[M]ere access” to a residence, without more, is insufficient to establish 3 apparent authority.” United States v. Reid, 226 F.3d 1020, 1026 (9th Cir. 2000) (concluding that 4 “the determination that [the officer] had authority to consent to the search simply because he 5 answered the door to the apartment was not objectively reasonable.”) Defendants move for summary judgment on the grounds that Officer Wright had the 7 consent of an individual with apparent authority—the valet—to enter the residence. 3 Viewing the 8 evidence in the light most favorable to Plaintiff, however, a reasonable jury could find it was not 9 objectively reasonable for Officer Wright to believe that the valet had authority to consent to her 10 entry. The jury could find that Officer Wright knew (1) the valet was just a young man hired to 11 United States District Court Northern District of California 6 park cars at a wedding, (2) was not the homeowner and did not otherwise reside in the residence, 12 and (3) therefore did not have any authority to consent to a search of the residence. A jury could 13 also find no consent, implied or otherwise, in light of the valet’s testimony that he told Officer 14 Wright that he was not the homeowner and that he would go get the homeowner and bring her to 15 the Officer. Absent such consent, a reasonable jury could conclude that warrantless entry violated 16 Plaintiff’s Fourth Amendment rights. As discussed at oral argument, Defendants’ motion for 17 summary judgment on the question of whether Officer Wright is entitled to qualified immunity 18 even if her entry was unconstitutional must likewise be denied. Plaintiff’s motion for summary judgment on whether Officer Wright’s warrantless entry 19 20 was unlawful presents a closer question. As explained at oral argument, in light of Officer 21 Wright’s testimony that she believed that the valet was escorting guests into and out of the 22 residence, the Court cannot conclude as a matter of law that there are no set of provable facts 23 which would entitle Officer Wright to at least qualified immunity. Accordingly, Plaintiff’s motion 24 for summary judgment is denied. 25 2) Unlawful Arrest Claim 26 Plaintiff pleads an unlawful arrest claim against both Officer Wright and Officer Bias. “A 27 28 3 Defendants do not argue that Officer Wright had consent from someone with actual authority. 13 1 claim for unlawful arrest is cognizable under [42 U.S.C.] § 1983 as a violation of the Fourth 2 Amendment, provided the arrest was without probable cause or other justification.” Dubner v. City 3 and Cnty of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). “Probable cause exists when, under 4 the totality of the circumstances known to the arresting officers (or within the knowledge of the 5 other officers at the scene), a prudent person would believe the suspect had committed a crime.” 6 Id. at 966. In the context of an unlawful arrest, “the two prongs of the qualified immunity analysis 7 can be summarized as: (1) whether there was probable cause for the arrest; and (2) whether it is 8 reasonably arguable that there was probable cause for arrest–that is, whether reasonable officers 9 could disagree as to the legality of the arrest such that the arresting officer is entitled to qualified 10 United States District Court Northern District of California 11 immunity.” Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011) (per curiam). The police report and officer testimony reflect that Plaintiff was arrested for violation of 12 California Penal Code 243(b): battery against a peace officer. As Defendants’ state in their motion 13 for summary judgment: “[w]here, as here, a warrantless arrest for battery on a police officer 14 occurs inside a residence, one element of the offense in addition to those enumerated in the statute 15 itself is that the officer was lawfully within the residence at the time the arrest was effectuated.” 16 (Dkt. No. 60 at 16-17.) See People v. Wilkins, 14 Cal.App.4th 761, 779 (1993); see also Baranchik 17 v. Fizulich, 10 Cal. App. 5th 1210, 1215 (Cal. Ct. App. 2017) (citing California jury instruction for 18 violation of Section 243(b) “The People have the burden of proving beyond a reasonable doubt 19 that [the police officer] was lawfully performing his or her duties as a peace officer.” ). 20 Defendants thus concede that Plaintiff’s first and second Section 1983 claims—for warrantless 21 entry and unlawful arrest—both hinge on the lawfulness of Officer Wright’s entry into Plaintiff’s 22 home. See Wilkins, 14 Cal.App.4th at 779. Because factual disputes preclude summary judgment 23 on the lawfulness of Officer Wright’s entry into Plaintiff’s home, Officer Wright is likewise not 24 entitled to summary judgment on the arrest claim. 25 Defendants also move for summary judgment on the unlawful arrest claim as to Officer 26 Bias because he was not present when Plaintiff allegedly threw the water, and thus, he had no 27 reason to suspect that Officer Wright’s probable cause determination was improper. However, 28 these facts are disputed. Both Plaintiff and Ms. Hill attest that Officer Bias was present at the time 14 of the water incident. (Dkt. No. 65-2, Notter Decl. at ¶¶ 7-8; Dkt. No. 65-3, Hill Decl. at ¶ 2; see 2 also Dkt. No. 65-1, Phelps Decl. at p. 88 (suggesting both officers were present at the time Officer 3 Wright asked Plaintiff to turn down the music.) As such, he too was responsible for assessing 4 whether there was probable cause for arrest based on battery on a peace officer. Further, because 5 the facts surrounding the probable cause determination are in dispute with Plaintiff and other 6 witnesses testifying that it was accidental and Officer Wright testifying that she believed it was 7 deliberate, summary judgment is improper as resolution of this factual dispute is for the jury. 8 Because the Court must construe the facts in the light most favorable to Plaintiff as the non- 9 moving party, the Court likewise cannot find that Officer Bias is entitled to qualified immunity. A 10 reasonable jury could conclude that a reasonable officer would not have determined that there was 11 United States District Court Northern District of California 1 probable cause to arrest an individual for battery on a peace officer where the alleged battery was 12 accidental and not intentional. See Cal. Penal Code § 242 (“a battery is any willful and unlawful 13 use of force or violence upon the person of another.”) (emphasis added). *** 14 Accordingly, Defendants’ motion for summary judgment on the unlawful arrest claim is 15 16 denied. 17 3) Plaintiff’s Excessive Force Claim 18 Whether a defendant’s use of force was “reasonable” under the Fourth Amendment 19 requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth 20 Amendment interests against the countervailing government interests at stake.” Graham v. 21 Connor, 490 U.S. 386, 395 (1989). Thus, the question is “whether the officers’ actions [were] 22 ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to 23 their underlying intent or motivation.” Id. at 397. In making that determination, courts consider 24 “the relationship between the need for the use of force and the amount of force used; the extent of 25 the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the 26 severity of the security problem at issue; the threat reasonably perceived by the officer; and 27 whether the plaintiff was actively resisting. Kingsley v. Hendrickson, 135 S Ct. 2466, 1472 (2015) 28 (citing Graham, 490 U.S. at 296). The Kingsley factors are not exclusive; instead, the Supreme 15 1 2 Court expressly cautioned that courts should consider all of the circumstances it deems relevant. The Ninth Circuit has noted that “[b]ecause such balancing nearly always requires a jury to 3 sift through disputed factual contentions, and to draw inferences therefrom, ... summary judgment 4 ... in excessive force cases should be granted sparingly.” Santos v. Cates, 287 F.3d 846, 853 (9th 5 Cir. 2002) (citation omitted). Summary judgment may be appropriate, however, when the facts 6 concerning an incident are largely undisputed. See Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 7 1994) (“[D]efendants can still win on summary judgment if the district court concludes, after 8 resolving all factual disputes in favor of the plaintiff, that the officer’s use of force was objectively 9 reasonable under the circumstances.”). When the circumstances show that there is no need for force, any force used is constitutionally unreasonable. See Fontana v. Haskin, 262 F.3d 871, 880 11 United States District Court Northern District of California 10 (9th Cir. 2001) (citations omitted); Headwaters Forest Def. v. Cnty. of Humboldt, 240 F.3d 1185, 12 1199 (9th Cir. 2000), vacated on other grounds sub. nom. Cnty. of Humboldt v. Headwaters Forest 13 Def., 534 U.S. 801 (2001). 14 Here, the level of force employed by the officers and any resistance on the part of Plaintiff 15 are in dispute. Plaintiff testified that as soon as the water incident occurred the officers grabbed 16 her arms and forcibly pushed her off the dance floor, into the side yard. She maintains that her 17 arms were pulled behind her back and the handcuffs applied on top of her bracelets which was 18 painful and that when she cried out that it hurt, Officer Wright tightened them further. Plaintiff 19 testified that the officers ignored her repeated complaints that they were hurting her and that as she 20 was moved to the front yard one of the officers kicked her back heel which fractured her heel bone 21 and caused her knees to buckle. Finally, Plaintiff stated that she was pushed on top of the trunk of 22 the police vehicle which bruised her torso. These facts must be accepted as true on summary 23 judgment. 24 Thus, whether the force used by Officers Wright and Bias was reasonable cannot be 25 decided as a matter of law. Likewise, when viewing the facts in a light most favorable to Plaintiff, 26 the Court cannot conclude that a reasonable officer would have believed that Officer Wright’s 27 conduct was lawful. Defendants’ motion for summary judgment on the excessive force claim and 28 claim of qualified immunity regarding the same is therefore denied. 16 1 2 B. Plaintiff’s Bane Act Claims The Bane Act provides a private right of action against a person who interferes by “threats, 3 intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the 4 exercise or enjoyment by any individual or individuals of rights secured by the Constitution or 5 laws of the United States, or of the rights secured by the Constitution or laws of this state....” Cal. 6 Civ. Code § 52.1. “There are two distinct elements for a section 52.1 cause of action. A plaintiff 7 must show (1) intentional interference or attempted interference with a state or federal 8 constitutional or legal right, and (2) the interference or attempted interference was by threats, 9 intimidation or coercion.” Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 (2015), as 10 United States District Court Northern District of California 11 modified on denial of reh’g (Mar. 6, 2015), review denied (May 20, 2015) (citations omitted). Defendants insist that summary judgment is appropriate because there is no evidence that 12 Plaintiff’s rights were violated by Defendants’ violence or a threat of violence. Not so. The Court 13 has denied Defendants’ motion for summary judgment on the excessive force and unlawful arrest 14 claims. “Where, as here, an arrest is unlawful and excessive force is applied in making the arrest, 15 there has been coercion ‘independent from the coercion inherent in the wrongful detention 16 itself’—a violation of the Bane Act.” Bender v. Cty. of Los Angeles, 217 Cal. App. 4th 968, 978 17 (2013) (quoting Shoyoye v. Cty. of Los Angeles, 203 Cal. App. 4th 947, 959 (2012)); see also 18 Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013) (“a successful claim for excessive force 19 under the Fourth Amendment provides the basis for a successful claim under § 52.1.”). 20 Accordingly, Defendants are not entitled to summary judgment on Plaintiff’s Bane Act 21 claims which are predicated on the same facts as her excessive force and unlawful arrest claims. 22 See Barragan v. City of Eureka, No. 15-CV-02070-WHO, 2016 WL 4549130, at *8 (N.D. Cal. 23 Sept. 1, 2016) (denying summary judgment on a Bane Act claim because “an excessive force 24 claim by its nature includes coercion beyond that inherent, for example, in an arrest or detention or 25 search and seizure” and collecting cases re: the same). 26 C. Plaintiff’s Remaining State Law Claims 27 28 Defendants insist that they are entitled to summary judgment on Plaintiff’s remaining state law claims—for invasion of privacy, trespass, battery, false imprisonment/arrest, intentional 17 1 infliction of emotional distress, and defamation—because these claims are all overlap with 2 Plaintiff’s Section 1983 and Bane Act Claims. Because the Court has denied summary judgment 3 on the Section 1983 and Bane Act claims, summary judgment must necessarily be denied as to 4 these state law claims as well. CONCLUSION 5 6 7 For the reasons stated above, the parties’ cross motions for summary judgment are DENIED. 8 This Order disposes of Docket Nos. 56 and 60. 9 IT IS SO ORDERED. 10 Dated: June 23, 2017 United States District Court Northern District of California 11 12 JACQUELINE SCOTT CORLEY United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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