Forte et al v. Hyatt Summerfield Suites Pleasanton et al

Filing 124

ORDER GRANTING DEFENDANTS ( 54 , 96 ) MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 12/18/2012. (ndr, COURT STAFF) (Filed on 12/18/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EUGENE E. FORTE,

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United States District Court
For the Northern District of California

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No. C 11-2568 CW

Plaintiff,

ORDER GRANTING
DEFENDANTS’
MOTIONS FOR
SUMMARY JUDGMENT
(Docket Nos. 54 &
96)

v.
HYATT SUMMERFIELD SUITES,
PLEASANTON, et al.,
Defendants.
________________________________/

Plaintiff Eugene Forte, proceeding pro se, brings this action

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against Defendants, Hyatt Summerfield Suites of Pleasanton, Ana

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Villa, the Pleasanton Police Department (PPD), Officer Jerry

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Nicely, Officer Mardene Lashley, and Officer Martens for wrongful

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eviction, false imprisonment, negligent infliction of emotional

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distress, assault, battery, and various civil rights violations

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under 42 U.S.C. §§ 1983, 1985, 1986, and 1988.

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move for summary judgment.

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Hyatt (Hotel Defendants) move for judgment on the pleadings and

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Plaintiff has requested leave to amend his complaint.

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considered oral argument and the papers filed by the parties, the

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Court grants Defendants’ motions for summary judgment and denies

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as moot Hotel Defendants’ motion for judgment on the pleadings.

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Defendants now

In addition, Defendants Villa and

Having

BACKGROUND
The following facts are undisputed, unless otherwise noted.

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On March 6, 2010, Plaintiff, his wife, and his four children

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checked into the Hyatt Summerfield Suites in Pleasanton,

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California, early in the morning.

Declaration of Steven L.

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Roycraft, Ex. 4, PPD Audio Recording, at 5:30-:35.

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a few hours in the room, Plaintiff returned to the lobby of the

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hotel at around 10:00 a.m. to ask where he could find breakfast

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for himself and his family.

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The clerk at the front desk assisted him and then watched as

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Plaintiff began to distribute copies of a newspaper called Badger

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Flats Gazette, which Plaintiff self-publishes, to other hotel

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guests in the lobby.1

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also spoke with several hotel guests about the newspaper and told

After spending

Declaration of Monique Paniagua ¶ 2.

Id. ¶ 3.

According to the clerk, Plaintiff

United States District Court
For the Northern District of California

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them that his life was in jeopardy.

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Plaintiff states that he “never spoke to multiple guests.”

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Forte Decl. ¶ 7.

Paniagua Decl. ¶ 3.
Eugene

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After Plaintiff left the lobby, the front desk clerk

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telephoned the hotel’s manager, Veronica Villa,2 to report that

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several guests had complained about Plaintiff’s behavior.

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Paniagua Decl. ¶ 4; Declaration of Veronica Villa ¶¶ 3-4.

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Plaintiff does not, and cannot, provide evidence that no guests

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complained or that the clerk did not report to Villa that they

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did.

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happened in the lobby.

Villa then called Plaintiff’s room to discuss what had
Villa Decl. ¶ 5.

Before she could ask

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The newspaper is essentially a collection of re-printed letters
between Plaintiff and the police department in Los Banos, California,
where Plaintiff and his family reside. Paniagua Decl., Ex. A, Badger
Flats Gazette. The letters pertain to a series of comments that were
apparently left on Plaintiff’s YouTube page in February 2010 by a local
high school student who threatened to assault Plaintiff for using
racially insensitive language at a Los Banos city council meeting. Id.;
Declaration of Eugene Forte ¶ 15. Plaintiff offers additional
information regarding this incident in his declaration but, because that
information does not pertain to his claims in this lawsuit, it is
omitted from this background. See Eugene Forte Decl. ¶¶ 12, 14-15.
2 Villa, who is named in the complaint as “Ana Villa,” asserts that
her true name is Veronica Villa.

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Plaintiff to provide his version of events, however, Plaintiff

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began telling Villa that his life was in danger and she needed to

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call the Los Banos police.

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and told Villa that if he was killed, it would be her fault.

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Id. ¶ 8.

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going to call the Pleasanton police to have him removed from the

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hotel, id. ¶ 7; Plaintiff disputes only that she notified him of

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her plan to call the police, Eugene Forte Decl. ¶ 10.

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event, Villa called the police after she finished speaking with

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For the Northern District of California

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Id. ¶¶ 5-8.

He then began to shout

Villa claims that she then told Plaintiff that she was

Plaintiff.

In any

Villa Decl. ¶ 9.

Soon afterward, at approximately 11:00 a.m., PPD Officers

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Nicely and Lashley arrived at the hotel.

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Mardene Lashley ¶ 5; Declaration of Jerry Nicely ¶ 5.

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the officers about Plaintiff’s erratic behavior in the lobby and

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on the phone and expressed her concerns about him staying at the

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hotel.

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Decl. ¶¶ 6-7.

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remove Plaintiff and his family from the hotel.

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Lashley Decl. ¶¶ 6-7; Nicely Decl. ¶¶ 6-7.

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arrived at Plaintiff’s hotel room, however, Plaintiff refused to

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come outside to speak with them.

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Decl. ¶ 9; Nicely Decl. ¶ 9.

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through the door and window of the hotel room and telling them to

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contact the Los Banos police department.

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at 3:20-7:15.

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at 6:20-:30, bolted the door to the room, id. at 9:55-10:15, and

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refused to let them enter, id.

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attempted to break down the door.

Id. ¶ 11; Declaration of
Villa told

Villa Decl. ¶ 11; Lashley Decl. ¶¶ 6-7; Nicely
The officers agreed to stand by as she attempted to
Villa Decl. ¶ 11;

When the three of them

Villa Decl. ¶¶ 12-13; Lashley

Instead, he began yelling at them

Roycraft Decl., Ex. 4,

He told the officers that they were in trouble, id.

He alleges that the officers
Eugene Forte Decl. ¶¶ 6, 19.
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Over the next ninety minutes, Officers Nicely and

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Lashley -- as well as several other PPD officers who later joined

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them at the hotel -- spoke with Plaintiff through the hotel room

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door in an effort to get him to leave.

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Decl. ¶¶ 10, 16.

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issued digital audio recorder to document their conversation with

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Plaintiff.

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exit the room during this period and, at several points, screamed

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at the officers asking him to come outside.

Lashley Decl. ¶ 10; Nicely

During this period, the officers used a police-

Lashley Decl. ¶ 8.

Plaintiff refused all requests to

Lashley Decl. ¶¶ 11-

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For the Northern District of California

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13; Nicely Decl. ¶ 14; Roycraft Decl., Ex. 4, at 16:25-17:15,

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18:15-:40, 19:02-:14, 20:10-:15.

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specific directives from Officers Nicely and Lashley, their

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superior, PPD Sgt. Mickleburgh, and his superior, Lt. Bretzning.

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Lashley Decl. ¶¶ 13-15; Nicely Decl. ¶ 15.

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PPD’s offers for medical support despite telling the officers that

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he had been injured and that his daughter might need medical

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attention.

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Recording, at 3; Roycraft Decl., Ex. 4, at 19:02; Nicely

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Decl. ¶¶ 11-12.

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about the Los Banos police and the purported death threats he had

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received the previous month.

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Decl. ¶¶ 11, 14; Roycraft Decl., Ex. 4, at 3:25-:50.

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point, PPD officers called the Los Banos police and learned that a

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restraining order had been issued against Plaintiff for

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threatening statements that he had made about the town’s mayor.

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Nicely Decl. ¶ 17; Lashley Decl. ¶ 9.

He refused to respond to

Plaintiff also refused

Eugene Forte Decl., Ex. 3, Pl.’s Transcript of PPD

Throughout the standoff, he continued to talk

Nicely Decl. ¶¶ 9, 17; Lashley
At one

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Based on this information and Plaintiff’s unpredictable

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behavior, the PPD officers at the scene concluded that Plaintiff
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posed a danger to himself and his family; they therefore decided

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to detain him for a mental health evaluation under section 5150 of

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the Welfare and Institutions Code.

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Decl. ¶ 16.

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several officers and told them again that he refused to leave the

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hotel.

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at 1:20-3:45.

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onto a gurney for transport to a nearby medical center.

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Forte Decl. ¶¶ 20-21 & Ex. 1, File 1, at 3:45-4:12; Nicely Decl.

Nicely Decl. ¶ 22; Lashley

When Plaintiff finally left his room, he chastised

Eugene Forte Decl., Ex. 1, File 1, Pl.’s Video Recording,
Two officers then placed him in a control hold and
Eugene

United States District Court
For the Northern District of California

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¶ 23.

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exchange, including the officers’ use of the control hold, on a

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cell phone camera.

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Nicely claims that he notified Plaintiff that he would be taken

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for a mental health evaluation prior to restraining him, Nicely

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Decl. ¶ 23; Plaintiff disputes that the police told him why he was

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being detained prior to placing him in the control hold, Eugene

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Forte Decl. ¶ 21.

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A member of Plaintiff’s family recorded some of this

Eugene Forte Decl., Ex. 1, File 1.

Officer

On March 4, 2011, one year after the incident at the hotel,

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Plaintiff filed this lawsuit in Alameda Superior Court.

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at 1.

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Defendants now move for summary judgment on all claims.

Compl.

The case was removed to federal court in May 2011.

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LEGAL STANDARD

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Summary judgment is properly granted when no genuine and

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disputed issues of material fact remain, and when, viewing the

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evidence most favorably to the non-moving party, the movant is

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clearly entitled to prevail as a matter of law.

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56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

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Fed. R. Civ. P.

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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

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1987).

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The moving party bears the burden of showing that there is no

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material factual dispute.

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true the opposing party’s evidence, if supported by affidavits or

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other evidentiary material.

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815 F.2d at 1289.

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in favor of the party against whom summary judgment is sought.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

Therefore, the court must regard as

Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences

United States District Court
For the Northern District of California

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587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

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F.2d 1551, 1558 (9th Cir. 1991).

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Material facts which would preclude entry of summary judgment

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are those which, under applicable substantive law, may affect the

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outcome of the case.

The substantive law will identify which

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facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986).

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DISCUSSION
I.

Defendants’ Motion for Summary Judgment

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A.

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Plaintiff alleges a tort claim of wrongful eviction against

Wrongful Eviction (Plaintiff’s First Cause of Action)

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all Defendants.

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this claim, he must first provide evidence to support an inference

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that he was “‘a person in peaceable possession of real property.’”

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Spinks v. Equity Briarwood Apartments, 171 Cal. App. 4th 1004,

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1039 (2009) (quoting Daluiso v. Boone, 71 Cal.2d 484, 486 (1969)).

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Compl. ¶¶ 26-29.

To survive summary judgment on

Plaintiff has failed to present any such evidence.

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California courts have long recognized that hotel guests do not

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have a possessory interest in their hotel rooms.
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Erwin v. City of

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San Diego, 112 Cal. App. 2d 213, 217 (1952) (“The guests in the

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hotel are not tenants and have no interest in the realty; they are

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mere licensees and the control of the rooms, halls and lobbies

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remains in the proprietor.”).

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reject wrongful eviction claims asserted by hotel guests.

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Republic W. Ins. Co. v. Stardust Vacation Club, 2003 WL 24215016,

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at *5 (E.D. Cal.) (“It was obvious from the allegations of [the

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plaintiff]’s initial federal complaint that she could not claim

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personal injury resulting from wrongful eviction because [she] was

United States District Court
For the Northern District of California

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For this reason, courts typically

merely a hotel guest.”).

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Plaintiff contends that this principle should not apply here

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because Hyatt houses “permanent residents” in addition to its

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temporary guests.

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the past.

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112 Cal. App. 2d at 217.

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In short, a hotel does not grant all of

its guests a possessory interest in their rooms merely by granting
such an interest to certain, individual tenants.
Plaintiff also argues that his wrongful eviction claim should

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As the Court of Appeal recognized in Erwin,

It is a matter of common knowledge that hotels, in
addition to guest rooms, sometimes contain apartments
which include kitchen facilities and are designed and
intended for occupation for persons or families for
living or sleeping purposes. Under such circumstances,
the entire hotel building would not necessarily be
denominated an apartment house where it is designed and
used primarily for the accommodation of guests.

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Courts have expressly rejected this argument in

survive because Defendants repeatedly used the word “eviction” to
describe their efforts to remove him from the hotel.

Defendants’

imprecise use of the term “eviction,” however, does not endow
Plaintiff with property rights that he would not have otherwise
had.

Because Plaintiff provides no other evidence to show that he
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had a possessory interest in his hotel room, Defendants are

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entitled to summary judgment on his wrongful eviction claim.

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B.

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Plaintiff alleges claims of false arrest and false

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United States District Court
For the Northern District of California

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imprisonment against all Defendants.

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Compl. ¶¶ 30-35.

Because

the California Supreme Court has recognized that “‘[f]alse arrest’
and ‘false imprisonment’ are not separate torts,” the Court
addresses these claims together.

See Asgari v. City of L.A., 15

Cal.4th 744, 752 n.3 (1997) (citations omitted) (“False arrest is
but one way of committing a false imprisonment.”).
Defendants PPD, Nicely, Lashley, and Martens (City

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False Arrest and False Imprisonment (Plaintiff’s Second
Cause of Action)

Defendants) contend that they are entitled to summary judgment on
Plaintiff’s false arrest claim because they were authorized to
detain him under section 5150 of the Welfare and Institutions
Code.

Under that section, “[w]hen any person, as a result of

mental disorder, is a danger to others, or to himself or herself,
or gravely disabled, a peace officer . . . may, upon probable
cause, take, or cause to be taken, the person into custody” for
evaluation and treatment at a public facility.
§ 5150.

Cal. Welf. & Inst.

To establish probable cause under this provision, “the

officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts,
reasonably warrant his or her belief or suspicion” that “the
person detained is mentally disordered and is a danger to himself
or herself.”

Heater v. Southwood Psychiatric Ctr., 42 Cal. App.

4th 1068, 1080 (1996).

Police officers acting lawfully under

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section 5150 may not be held liable for false arrest or

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imprisonment.

Cal. Welf. & Inst. § 5278.

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Here, City Defendants point to Plaintiff’s ninety-minute

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standoff with police inside the hotel as their basis for invoking

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section 5150.

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behavior gave them probable cause to believe that he posed a

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danger to himself and his family.

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Plaintiff must produce evidence raising a material factual dispute

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concerning City Defendants’ proffered justifications for detaining

United States District Court
For the Northern District of California

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him.

Specifically, they contend that Plaintiff’s erratic

To survive summary judgment,

He has not done so here.
Plaintiff’s argument that City Defendants lacked probable

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cause for detaining him rests principally on a series of

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allegations that PPD officers fabricated evidence of Plaintiff’s

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disruptive behavior.

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may find that the police officers were trying to make it appear

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like [Plaintiff] was a danger in order to get him off the hotel

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property.”).

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family members who dispute Defendants’ account in broad,

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conclusory terms but fail to offer any specific details.

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e.g., Declaration of Eileen Forte ¶ 9 (“There are too many

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conflicts and misstatements of facts between the audios, the

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declarations and what I heard and knew took place to list, and

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that contradict what [Defendants] put in their motion.”).

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submits a recent newspaper article about a police misconduct

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lawsuit filed against one of City Defendants arising from an

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unrelated incident as proof of the officer’s lack of credibility.

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Eugene Forte Decl., Ex. 4.

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not offer any evidence contradicting the specific factual

See Opp. 14 (“It is reasonable that a jury

For support, Plaintiff provides declarations from

See,

He also

Critically, however, Plaintiff does

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assertions that City Defendants make to show that they reasonably

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believed that he posed a danger to himself and his family.

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Rand v. CFI Indus., Inc., 42 F.3d 1139, 1146 (7th Cir. 1994)

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(stating that a plaintiff “cannot avoid summary judgment merely by

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asserting that [the defendants] are lying”).3

Cf.

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In particular, Plaintiff does not dispute Defendants’

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assertion that he prevented his daughter from receiving needed

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medical attention by keeping the family barricaded inside the

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hotel room.

Plaintiff’s own transcript of the PPD audio recording

United States District Court
For the Northern District of California

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quotes Plaintiff stating, “My daughter may need medical attention

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. . . but I can’t open this door, you idiot.”

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Roycraft Decl., Ex. 4, at 19:02 (capturing quote on PPD audio

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recording); see also Nicely Decl. ¶¶ 11-12 (“At one point, Mr.

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Forte stated that his daughter may need medical attention for a

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panic attack but then refused to permit paramedics to assess his

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daughter . . . .”).

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Plaintiff whether his “kids [were] OK,” Plaintiff responded, “No,

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they’re not.

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Forte Decl., Ex. 3, at 4.

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medical attention, Plaintiff kept the family barricaded in the

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room.

Id., Ex. 3, at 3;

Minutes later, when a PPD officer asked

You’re upsetting them.

They’re stressed.”

Eugene

Despite these inquiries and offers of

Nicely Decl. ¶¶ 11-13.

Plaintiff can also be heard on the

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Plaintiff asserts in his opposition brief that City Defendants
can be heard on Officer Lashley’s audio recording concocting a story to
conceal their true motives in detaining him. The recording he cites
does not support this assertion and, if anything, suggests that
Plaintiff fabricated certain quotes that he attributes to the PPD
officers. Cf. Scott v. Harris, 550 U.S. 372, 380-81 (2007) (stating
that when one party’s factual allegations are “blatantly contradicted by
[a video] record[ing], so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling
on a motion for summary judgment”).

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PPD recording shouting at his wife when she tried to respond to

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one officer’s offer to provide medical support to Plaintiff’s

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children.

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¶¶ 11-12 (describing how Plaintiff prevented his wife from

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speaking to PPD officers who sought to provide medical attention

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for Plaintiff’s daughter).

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evidence to contradict any of these specific factual allegations.

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Roycraft Decl., Ex. 4, at 21:28; see also Nicely Decl.

Plaintiff does not present any

While the exchange about Plaintiff’s daughter would, on its
own, justify the officers’ decision to detain Plaintiff under

United States District Court
For the Northern District of California

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section 5150, City Defendants provide further undisputed evidence

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showing that they had additional cause for concern.

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that, during the standoff, Plaintiff repeatedly told the police

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that he was bleeding but refused to tell them exactly how he

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became injured.

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Ex. 4, at 35:15.

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about other past health problems, noting that he had “had a heart

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attack and open [sic] surgery.”

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He then insisted several times that PPD officers call the Los

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Banos Police Department, located more than seventy-five miles

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away, to confirm that his life was in jeopardy.

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Decl., Ex. 3, at 1; Roycraft Decl., Ex. 3, at 5:01, 11:20; Lashley

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Decl. ¶ 16; Nicely Decl. ¶ 22.

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police and hotel staff throughout the entire encounter.

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Decl., Ex. 3, at 8:23, 21:20, 36:25; Eugene Forte Decl., Ex. 1,

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File 1, at 3:32.

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Plaintiff presents evidence specifically to contradict -- gave the

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officers reason to suspect that Plaintiff was “mentally

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disordered” and a “danger to himself” and others.

They note

Eugene Forte Decl., Ex. 3, at 6; Roycraft Decl.,
He also volunteered unsolicited information

Roycraft Decl., Ex. 3, at 10:58.

Eugene Forte

And he remained hostile to both
Roycraft

Taken together, these facts -- none of which

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Heater, 42 Cal.

1

App. 4th at 1080.

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5150 detention in similar circumstances.

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Moynihan, 508 F.3d 1212, 1221 (9th Cir. 2007) (finding probable

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cause for officers to detain an individual under section 5150

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because the individual exhibited signs of paranoia, visible anger,

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and agitation).

Courts have found probable cause for a section
See, e.g., Bias v.

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Rather than produce evidence disputing City Defendants’

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factual account, Plaintiff argues that he never actually posed any

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danger to himself or others.

He submits declarations from his

United States District Court
For the Northern District of California

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wife and daughter stating that they were never concerned that

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Plaintiff would harm them during the standoff.

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Decl. ¶ 2-3; N. Forte Decl. ¶ 3.

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show that Plaintiff was not actually a danger to his family,

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however, they would still be insufficient to defeat summary

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judgment here.

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in assessing probable cause under section 5150 is not whether

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Plaintiff actually posed a danger to others but whether the

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officers’ belief that he posed such a danger was reasonable.

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People v. Triplett, 144 Cal. App. 3d 283, 288 (1983) (“Each case

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must be decided on the facts and circumstances presented to the

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officer at the time of the detention.” (emphasis added)).

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declarations from Plaintiff’s wife and daughter are based on their

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contemporary assessments of Plaintiff’s behavior inside the hotel

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room and their familiarity with his past conduct towards his

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family.

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the PPD officers at the time of the detention and, thus, fail to

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address the relevant question: namely, whether the officers’

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assessment of Plaintiff’s behavior was reasonable.

See Eileen Forte

Even if these declarations could

Courts have made clear that the relevant inquiry

The

As such, they focus solely on information unavailable to

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The only specific factual dispute that Plaintiff identifies

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regarding his detention is ultimately immaterial to whether or not

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the detention was justified.

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his sworn declaration that PPD officers did not tell him why he

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was being detained before they restrained him.4

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however, does not affect the probable cause inquiry.

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officers’ decision to detain Plaintiff under section 5150 was

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based on their undisputed observations of his erratic behavior at

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the hotel.

As noted above, Plaintiff states in

This discrepancy,
The

That decision was justified, regardless of whether or

United States District Court
For the Northern District of California

10

not they waited until after Plaintiff was restrained to explain

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why they were detaining him.

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insufficient to defeat summary judgment.

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247-48 (“[T]he mere existence of some alleged factual dispute

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between the parties will not defeat an otherwise properly

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supported motion for summary judgment; the requirement is that

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there be no genuine issue of material fact.” (emphasis in

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original)).

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This factual dispute is thus
Anderson, 477 U.S. at

Without providing any other evidence to support an inference

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that his detention was unlawful, Plaintiff cannot make out a prima

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facie case of false imprisonment.

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entitled to summary judgment on Plaintiff’s false imprisonment

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claim.

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Defendants are therefore

Even if Plaintiff had provided sufficient evidence to support
an inference that his detention was unlawful, he would have to

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Compare Eugene Forte Decl. ¶ 21 (“City defendants did not inform
me that they were taking me for mental evaluation prior to forcing me to
the ground.”), with Nicely Decl. ¶ 23 (stating that “I informed Mr.
Forte that he was going to be taken to a hospital for a mental health
evaluation” before he resisted and had to be restrained).

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provide additional evidence to hold Hotel Defendants liable for

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false imprisonment.

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private citizen who merely calls the police for help can only be

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held liable for an unlawful arrest by the police if he or she gave

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them “false information” or took an “active part” in making the

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arrest.

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recently, the Court of Appeal has recognized that good faith

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communications with the police are privileged under section 47 of

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the Civil Code and, thus, cannot form the basis for a false

The California Supreme Court has held that a

Hughes v. Oreb, 36 Cal.2d 854, 859 (1951).

More

United States District Court
For the Northern District of California

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imprisonment suit by someone unlawfully detained by the police.

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In Hunsucker v. Sunnyvale Hilton Inn, the court specifically

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recognized that a hotel “cannot be liable [for false imprisonment]

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either for its communication to police or for the subsequent

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conduct of the police in detaining plaintiffs.”

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1498, 1505 (1994).

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C.

23 Cal. App. 4th

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Negligent Infliction of Emotional Distress, Assault, and
Battery (Plaintiff’s Third, Fourth, and Fifth Causes of
Action)

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Plaintiff asserts claims of negligent infliction of emotional

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distress, and assault against all Defendants.

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Although Plaintiff’s complaint does not provide detailed factual

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allegations to support these claims, the claims appear to be based

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entirely on his “eviction and detention” by City Defendants.

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¶ 37.

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Compl. ¶¶ 36-51.

Id.

These claims fail for the same reason that Plaintiff’s false

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imprisonment claim fails: namely, City Defendants’ detention of

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Plaintiff was lawful under section 5150, which precludes Plaintiff

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from recovering in tort against them.

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Code § 5278.

Cal. Welf. & Inst.

City Defendants are thus entitled to summary
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judgment on these claims.

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to summary judgment on these claims because Plaintiff has failed

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to identify any tortious conduct on their part.

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Hotel Defendants are similarly entitled

Defendants are entitled to summary judgment on Plaintiff’s

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battery claim for separate reasons.

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evaluate battery claims asserted against law enforcement officers

7

according to the same standards used to evaluate excessive force

8

claims under 42 U.S.C. § 1983.

9

Cal. App. 4th 1077, 1102 n.6 (2004) (“Federal civil rights claims

Under California law, courts

Munoz v. City of Union City, 120

United States District Court
For the Northern District of California

10

of excessive force are the federal counterpart to state battery

11

and wrongful death claims.”); Susag v. City of Lake Forest, 94

12

Cal. App. 4th 1401, 1412-13 (2002); Saman v. Robbins, 173 F.3d

13

1150, 1156 n.6 (9th Cir. 1999).

14

provided sufficient evidence to support his excessive force claim

15

against City Defendants, as explained below, he cannot support a

16

battery claim against them either.

17

Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2002)

18

(“Under California law, [plaintiff]’s claim for battery against

19

the County Defendants cannot be established unless [she] proves

20

that [the officers] used unreasonable force against her to make a

21

lawful arrest or detention.”).

22

Hotel Defendants fails, as well, because he has not offered any

23

evidence that any Hyatt employee physically touched him.

24
25
26
27
28

D.

Thus, because Plaintiff has not

See, e.g., Arpin v. Santa

Plaintiff’s battery claim against

Federal Civil Rights Claims against City Defendants
(Plaintiff’s Sixth Cause of Action)

Plaintiff asserts various federal civil rights claims against
City Defendants under 42 U.S.C. §§ 1983, 1985, 1986, and 1988.
Id. ¶¶ 52-55.

Specifically, he alleges that his arrest and
15

1

detention by PPD violated his Fourteenth Amendment rights to due

2

process and equal protection5 as well as his Fourth Amendment

3

protections against unreasonable searches and seizures.

4

Court addresses each of these claims separately before addressing

5

City Defendants’ qualified immunity defense.

6
7

1.

Id.

The

Due Process Claim

To survive summary judgment on his due process claim,

8

Plaintiff must produce evidence to support an inference that City

9

Defendants deprived him of some liberty or property interest

United States District Court
For the Northern District of California

10

without due process of law.6

11

332 (1976).

12

explained above, he was lawfully detained under section 5150 of

13

the Welfare and Institutions Code.

14

recognized that “[d]ue process does not require that a county

15

provide a hearing for a person detained for seventy two hours

16

under section 5150.”

17

at *3 (N.D. Cal.) (awarding summary judgment to defendant police

18

officer on plaintiff’s § 1983 procedural due process claim because

19

the officer had established probable cause for the detention under

20

section 5150) (citing Doe v. Gallinot, 486 F. Supp. 983, 993–94

21

(C.D. Cal. 1979) aff’d, 657 F.2d 1017 (9th Cir. 1981)).

Mathews v. Eldridge, 424 U.S. 319,

Plaintiff has not made this showing here because, as

Numerous courts have

Barrier v. County of Marin, 1997 WL 465201,

City

22
23
24
25
26
27
28

5

Plaintiff asserts his due process and equal protection claims
under the Fifth and Fourteenth Amendments. Because the Fifth Amendment
only protects against due process and equal protection violations by the
federal government, however, see Bolling v. Sharpe, 347 U.S. 497, 498
(1954), the Court treats these claims as arising exclusively under the
Fourteenth Amendment. Plaintiff has not named any federal defendants in
this suit.
6 The Court assumes that Plaintiff’s claim is based on procedural
rather than substantive due process because, even though his complaint
fails to distinguish between the two, his opposition brief states that
he was denied “procedural due process.” Opp. 25.

16

1

Defendants are therefore entitled to summary judgment on

2

Plaintiff’s claims alleging due process violations.

3
4

2.

Equal Protection Claim

To survive summary judgment on his equal protection claim,

5

Plaintiff must present evidence to support an inference that PPD

6

was motivated by a discriminatory purpose.

7

Armstrong, 517 U.S. 456, 465 (1996).

8

a specific discriminatory motive on the part of PPD in his

9

complaint or motion papers nor does he assert that he is a member

United States v.

Plaintiff does not identify

United States District Court
For the Northern District of California

10

of a protected class under the Fourteenth Amendment.

11

opposition brief, he argues only that “City defendants

12

discriminated against him because he exposes government

13

corruption,” Opp. 25, which is insufficient to confer protected

14

status.

15

that only a limited number of groups “have so far been given the

16

protection of heightened equal protection scrutiny under our

17

cases”).

18

In his

See Romer v. Evans, 517 U.S. 620, 628-29 (1996) (noting

When a plaintiff’s equal protection claim is not based on

19

membership in a protected class, he or she may only establish an

20

equal protection violation by asserting a “class of one” claim.

21

Cannon v. City of Petaluma, 2012 WL 1183732, at *13 (N.D. Cal.)

22

(citing Village of Willowbrook v. Olech, 528 U.S. 562, 564

23

(2000)).

24

plaintiff must provide evidence supporting an inference that he or

25

she was “intentionally treated differently from others similarly

26

situated and that there is no rational basis for the difference in

27

treatment.”

28

of Plaintiff’s evidence mentions similarly situated individuals or

To survive summary judgment on such a claim, the

Village of Willowbrook, 528 U.S. at 564.

17

Here, none

1

suggests that City Defendants would treat such individuals

2

differently.

3

facts here suggest that City Defendants’ decision to detain

4

Plaintiff was based on his erratic conduct, not on a

5

discriminatory motive.

6

evidence supporting a “class of one” equal protection claim.

7

Defendants are therefore entitled to summary judgment on

8

Plaintiff’s equal protection claim.

9

3.

United States District Court
For the Northern District of California

10

Indeed, as previously explained, the undisputed

Plaintiff has thus failed to provide
City

Fourth Amendment Claim

To survive summary judgment on his Fourth Amendment claim,

11

Plaintiff must present evidence to support an inference that City

12

Defendants used unreasonable force in detaining him.

13

Connor, 490 U.S. 386, 395 (1989).

14

‘reasonableness’ inquiry in an excessive force case is an

15

objective one; the question is whether the officers’ actions are

16

‘objectively reasonable’ in light of the facts and circumstances

17

confronting them, without regard to their underlying intent or

18

motivation.”

19

the officers that the individual involved is emotionally

20

disturbed, that is a factor that must be considered in

21

determining, under Graham, the reasonableness of the force

22

employed.”

23

2001).

24

Id. at 397.

Graham v.

Under Graham, “the

“[W]here it is or should be apparent to

Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir.

Here, Plaintiff presents a video recording of his arrest as

25

evidence that City Defendants used excessive force in detaining

26

him.

27

video footage is shaky and does not provide a clear view of the

28

PPD officers’ efforts to restrain Plaintiff.

See Eugene Forte Decl., Ex. 1, File 1, at 3:50-4:12.

18

See id.

The

1

Furthermore, the relevant portion of the video contains background

2

music, which Plaintiff apparently added while editing the footage,

3

making it difficult to hear the full exchange between Plaintiff

4

and the police.

5

deficiencies, the footage -- along with the accompanying audio

6

recording that Plaintiff submits -- does not amount to sufficient

7

evidence that City Defendants used excessive force in detaining

8

Plaintiff.

9

See id.

Nevertheless, even setting aside these

Plaintiff’s video recording shows two police officers forcing

United States District Court
For the Northern District of California

10

Plaintiff’s arms behind his back and placing him face-down on the

11

ground.

12

audio recording of the same time period captures police officers

13

restraining Plaintiff on a gurney while they prepare to transport

14

him to a nearby hospital.

15

do not dispute the accuracy of Plaintiff’s recordings nor do they

16

deny that they used control holds to put him onto a gurney for

17

transport.

18

reasonable under the circumstances.

19

Eugene Forte Decl., Ex. 1, File 1, at 3:52-4:12.

Id., File 3, at 0:47-2:14.

An

Defendants

Rather, they contend that their use of force was

After reviewing the video and audio recordings, the Court

20

concludes that no reasonable jury could find that City Defendants

21

used excessive force here.

22

recordings demonstrate that he resisted the PPD officers’ efforts

23

to detain him.

24

1:15 (recording Plaintiff telling PPD officers to “back up” and

25

“get your hands off me, stupid”).

26

reveal that, prior to restraining him, the officers sought to use

27

less intrusive means to escort Plaintiff off the hotel grounds.

28

At several points in the video, the officers can be seen speaking

Plaintiff’s own video and audio

See Eugene Forte Decl., Ex. 1, File 3, at 1:03-

19

The footage and recordings also

1

calmly to Plaintiff as he grows increasingly agitated and hostile

2

towards the officers.

3

despite his arguments to the contrary, none of Plaintiff’s video

4

footage or audio recordings supports a reasonable inference that

5

City Defendants used excessive force.

6

Id., File 1, 1:31-:50, 3:25-:50.

Thus,

Because Plaintiff provides no other support for his excessive

7

force claim -- not even his own sworn description of any such

8

facts or any circumstantial evidence -- City Defendants are

9

entitled to summary judgment on this claim.

Cf. Gregory, 523 F.3d

United States District Court
For the Northern District of California

10

at 1107-08 (upholding summary judgment for defendant police

11

officers because plaintiff presented “no medical or circumstantial

12

evidence” to support his excessive force claim while defendants

13

presented evidence that they only used a control hold after

14

plaintiff resisted other efforts to detain him).

15

4.

16

Qualified Immunity

Even if Plaintiff had provided evidence to support a material

17

factual dispute concerning his constitutional claims, City

18

Defendants would still be entitled to qualified immunity in this

19

case.

20

officials “from liability for civil damages insofar as their

21

conduct does not violate clearly established statutory or

22

constitutional rights of which a reasonable person would have

23

known.”

24

demonstrate that the defendant is not entitled to qualified

25

immunity, the plaintiff must show that the constitutional

26

violation he or she asserts was clearly established at the time of

27

the allegedly impermissible conduct.

28

U.S. 233, 243-44 (2009); Maraziti v. First Interstate Bank, 953

The defense of qualified immunity protects government

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

20

To

Pearson v. Callahan, 555

1

F.2d 520, 523 (9th Cir. 1992).

2

clearly established, the next inquiry is whether a reasonable

3

official could have believed his conduct was lawful.

4

Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993).

5

Here, Plaintiff has failed to show that any of the

If the law is determined to be

Act

6

constitutional violations he alleges were “clearly established” at

7

the time of his detention.

8

Plaintiff’s detention does not establish, for instance, that the

9

use of control holds or physical restraints on an individual with

The existing case law at the time of

United States District Court
For the Northern District of California

10

a suspected mental health disorder constitutes excessive force

11

when the individual poses a danger to himself or herself or

12

others.

13

opposite -- namely, that the use of holds and restraints in that

14

situation is generally not excessive.

15

1107-08; Gibson v. County of Washoe, 290 F.3d 1175, 1198-99 (9th

16

Cir. 2002) (holding that use of physical restraints constituted

17

reasonable force when the plaintiff appeared to be a danger to

18

himself); Duarte v. Begrin, 2007 WL 705053, at *7 (N.D. Cal.) (“In

19

light of the officers’ reasonable belief in the urgent need to get

20

plaintiff to a medical facility where she could be evaluated,

21

taking her by the arms into a police car in response to her

22

resistance was not so unreasonable as to defeat qualified

23

immunity, or amount to a constitutional violation.”).7

If anything, the existing case law suggests the

See Gregory, 523 F.3d at

Thus, even

24
25
26
27
28

7

See also Bowers v. Pollard, 345 Fed. App’x 191, 197 (7th Cir.
2009) (holding that state defendants were entitled to summary judgment
on mentally ill plaintiff’s excessive force claim and their use of
restraints was reasonable when plaintiff failed to provide evidence
disputing that he was a danger to himself or others).

21

1

if Plaintiff could identify a triable issue of fact here, City

2

Defendants would still be entitled to qualified immunity.

3

E.

4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Federal Civil Rights Claims Against All Defendants
(Plaintiff’s Seventh Cause of Action)

Plaintiff asserts claims against all Defendants under
42 U.S.C. § 1983, alleging violations of his Fifth and Fourteenth
Amendment rights to due process and equal protection.
Compl. ¶¶ 56-57.

These claims are entirely duplicative of his

other, previously asserted constitutional claims, see Compl.
¶¶ 52-55, except that he asserts them against all Defendants
rather than just City Defendants.
The Court has already explained why these claims fail against
City Defendants.

These claims also fail against Hotel Defendants,

however, because Plaintiff has failed to provide any evidence -or even allege -- that Hotel Defendants were acting as agents of
the State when they sought assistance in removing him from the
hotel.

See Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 937

(1982) (“Our cases have accordingly insisted that the conduct
allegedly causing the deprivation of a federal right be fairly
attributable to the State.”).

As Plaintiff should be aware from

his past litigation efforts, he must identify specific facts
showing coordination between public and private actors to hold a
private actor liable under § 1983.

See Forte v. County of Merced,

2012 WL 94322, at *25 (E.D. Cal.) (“Plaintiff has failed to allege
any facts that, if proven, would tend to show the existence of an
agreement between any of the state and non-state actors to violate
Plaintiffs’ First Amendment rights.

Plaintiff has merely made the

conclusory allegation that such an agreement exists and that is
22

1

not enough to state a claim for conspiracy under § 1983.”

2

Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir.

3

1989))).

4

F.

5

8
9

United States District Court
For the Northern District of California

10
11
12

§ 1983 alleging that they failed to prevent PPD officers from
violating Plaintiff’s civil rights.

15
16
17
18
19
20
21
22
23
24
25

Compl. ¶¶ 58-64.

Although

Plaintiff’s complaint does not articulate a clear theory of § 1983
liability, the Court assumes that this is a claim for municipal
liability on the part of the PPD under Monell v. Department of
Social Services, 436 U.S. 658 (1978).
Under Monell, municipalities cannot be held vicariously

13
14

Monell Claims Against All Defendants (Eighth Cause of
Action)

Plaintiff asserts a claim against City Defendants8 under

6
7

(citing

liable under § 1983 for the actions of their employees.
691.

Id. at

“Instead, it is when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the
injury that the government as an entity is responsible under
§ 1983.”

Id. at 694.

To impose liability on a government entity,

a plaintiff must show that “the municipality itself causes the
constitutional violation through ‘execution of a government’s
policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy.’”
Ulrich v. City & County of S.F., 308 F.3d 968, 984 (9th Cir. 2002)
(quoting Monell, 436 U.S. at 694)).

26
27
28

8

Plaintiff asserts this claim against Hotel Defendants, as well,
but once again fails to provide any evidence or allegations suggesting
that their conduct constitutes state action.

23

1

Here, Plaintiff has failed to identify a specific

2

governmental policy or custom on which Monell liability might be

3

premised.

4

Francisco Police Department, which he contends shows that his

5

detention was illegal.

6

that, because his detention was ordered by Sgt. Mickleburgh, an

7

individual with supervisory authority, the decision qualifies as

8

an official policy or custom.

9

Mickelburgh’s decision constituted an official PPD policy or

The only formal policy he cites is that of the San

Eugene Forte Decl., Ex. 6.

He also argues

Even if the SFPD policy or Sgt.

United States District Court
For the Northern District of California

10

custom, however, neither can serve as a basis for Monell liability

11

here because, as explained above, the decision to detain Plaintiff

12

under section 5150 was lawful.

13

premised on a “constitutional violation” and Plaintiff has failed

14

to provide evidence supporting an inference that the decision to

15

detain him was constitutionally impermissible.

16

Monell liability can only be

Accordingly, Defendants are entitled to summary judgment on

17

Plaintiff’s eighth cause of action.

18

II.

19

Plaintiff’s Request for Leave to Amend
In his opposition brief, Plaintiff requests leave to amend

20

his complaint in an effort to cure various deficiencies that

21

Defendants highlight in their motions for summary judgment.

22

the Court explained at the hearing, if Plaintiff wishes to amend

23

his complaint, he should have timely noticed and filed a motion

24

requesting leave to do so.

25

motion at this stage in the litigation, he would face a heavy

26

burden in justifying his request.

27

“‘reluctant to allow leave to amend to a party against whom

28

summary judgment has been entered.’”

As

Should Plaintiff decide to file such a

24

Courts are typically

See generally Nguyen v.

1

United States, 792 F.2d 1500, 1503 (9th Cir. 1986) (citing C.

2

Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2712

3

(2d ed. 1983)).

4

Under Federal Rule of Civil Procedure 16(b), a court may not

5

modify its schedule “except upon a showing of good cause and by

6

leave of the district judge.”

7

scheduling order and set a pleading deadline, the plaintiff’s

8

ability “to amend his complaint [is] governed by Rule 16(b)” not

9

the more liberal Rule 15(a).

Once a court has issued a

Johnson v. Mammoth Recreations,

United States District Court
For the Northern District of California

10

Inc., 975 F.2d 604, 608 (9th Cir. 1992).

11

amend a pleading after the deadline must show “good cause” for the

12

amendment under Rule 16(b).

13

Thus, a party seeking to

To determine whether good cause exists, courts examine the

14

diligence of the party seeking the modification.

15

also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.

16

2000).

17

creating a workable Rule 16 scheduling order but they must also

18

diligently attempt to adhere to that schedule throughout the

19

subsequent course of the litigation.”

Jackson v. Laureate, Inc.,

20

186 F.R.D. 605, 607 (E.D. Cal. 1999).

A party moving for an

21

amendment to a scheduling order must therefore show that it was

22

diligent in assisting the court to create a workable schedule at

23

the outset of litigation, that the scheduling order imposes

24

deadlines that have become unworkable notwithstanding its diligent

25

efforts to comply with the schedule, and that it was diligent in

26

seeking the amendment once it became apparent that extensions were

27

necessary.

Id. at 609; see

“[N]ot only must parties participate from the outset in

Id. at 608.

28
25

1

The Court’s scheduling order in this case set a deadline of

2

March 12, 2012 to amend the pleadings and a trial date of March

3

25, 2013.

4

1.

5

easily granted.

6

Inc., 448 Fed. App’x 720, 721 (9th Cir. 2011) (upholding denial of

7

leave to amend when party sought to amend six months prior to

8

trial date); Assadourian v. Harb, 430 Fed. App’x 79, 81 (3d Cir.

9

2011) (upholding denial of leave to amend when plaintiff sought to

Docket No. 38, Minute Order & Case Management Order, at

At such a late stage in the litigation, leave to amend is not
See, e.g., Millenkamp v. Davisco Foods Int’l,

United States District Court
For the Northern District of California

10

amend six months after court’s pleading deadline); see also

11

Schlacter-Jones v. Gen. Tel. of Cal., 936 F.2d 435, 443 (9th Cir.

12

1991) (“A motion for leave to amend is not a vehicle to circumvent

13

summary judgment.”), overruled on other grounds by Cramer v.

14

Consol. Freightways, Inc., 255 F.3d 683, 692-93 (9th Cir. 2001)

15

(en banc).

16
17

CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants’

18

motions for summary judgment (Docket Nos. 54 & 96).

19

Defendants’ motion for judgment on the pleadings (Docket No. 96)

20

is DENIED as moot.

21

objections to Plaintiff’s late filings are overruled as moot.

22

Plaintiff’s request for leave to amend is DENIED.

23

directed to close the case and enter judgment pursuant to this

24

order.

25

Hotel

All of Defendants’ evidentiary objections and

The clerk is

Defendants shall recover their costs from Plaintiff.

IT IS SO ORDERED.

26
27
28

Dated: 12/18/2012

CLAUDIA WILKEN
United States District Judge
26