Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CIV-052663
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Wajih Ajib appeals a final judgment entered December 4, 2007. The appeal challenges an underlying order, entered January 5, 2007, to the extent that the order granted defendants’ motion for summary adjudication as to several issues. As discussed below, we conclude the challenged rulings were correct, and affirm the judgment.
Background
On April 29, 2001, plaintiff and his estranged spouse, Olga Solamatina, became involved in an argument on a sidewalk in San Rafael. Officers Christopher Robles, Ronda Reese, and Rachel Rodriguez soon arrived at the scene of this incident (the April 2001 incident), each responding separately to a dispatcher’s report of a “physical fight between a male and a female.” Officer Reese, the first officer to arrive, saw Solamatina sitting on the curb being consoled by another woman, and saw plaintiff and several bystanders nearby. To determine what had happened, Reese interviewed Solamatina, Officer Robles interviewed plaintiff, and Officer Rodriguez interviewed several of the bystanders who had witnessed the event. Based on the information they gathered, Robles arrested plaintiff for a felony violation of Penal Code section 273.5.
In the resulting criminal trial, plaintiff was charged with a violation of Penal Code section 273.5 and with several other violations. Ultimately the jury found plaintiff guilty only of the lesser crime of misdemeanor assault. On plaintiff’s appeal, Division Two of this court overturned the resulting conviction for that offense.
See People v. Ajib (Apr. 30, 2004, A099615) [nonpub. opn.].
Plaintiff, who was born in Lebanon and who describes himself as having a “strong Arabic accent,” subsequently initiated this civil action against the City of San Rafael (City) and Officers Robles and Reese. In the critical allegations of his first amended complaint, filed in August 2005, plaintiff described the April 2001 incident as one in which he was the victim, while Solamatina was the “perpetrator and assailant” of “fraud and robbery.” Plaintiff’s “intent [was] to make a citizen’s arrest and retrieve his property without harming anyone,” yet he had been “forced to defend himself” when “Solamatina began to attack” him. He claimed that the police officers who arrived at the scene failed to “ascertain[] the true facts.” “[B]ecause of [plaintiff’s] race and ethnicity,” the officers “physically threatened and intimidated him by pushing him against a wall without cause... in spite of the fact that he was injured while... attempting to make a citizen’s arrest [and] lifted him off the ground where he was resting comfortably and threw him against his vehicle.” Thereupon the officers “falsely arrested him and falsely imprisoned him and brought charges against him... thus interfering with his rights secured by the Constitution and the laws of this state, to make a citizen’s arrest, defend himself, and... be free from false and unlawful imprisonment and racial and ethnic discrimination and discrimination due to his national origin.” Incorporating these factual allegations, plaintiff’s second cause of action alleged Officers Robles and Reese were employed by the City’s police department, and “act[ing] under color of their authority as such,” had deprived him of his constitutionally protected rights “to make a citizen’s arrest and not be threatened, intimidated, arrested or injured because he is of Arabic descent, non-white, male or a Lebanese American.” Plaintiff alleged he had suffered resulting damages, which he was entitled to recover under sections 1981, 1982, and 1983 of title 42 of the United States Code (sections 1981, 1982, and 1983). (See also 42 U.S.C. § 1988.)
Plaintiff’s complaint also named Officer Dennis Prince, whose postarrest investigation resulted in two forgery charges against plaintiff. Plaintiff initially contended Prince was liable because he had falsely instigated the charges, but at the outset of the trial he dismissed Prince as a defendant. Plaintiff concedes there is no issue in this appeal concerning Prince.
Plaintiff’s first cause of action sought recovery under Civil Code sections 51.7, 52, and 52.1. In October 2005, the trial court sustained without leave to amend defendants’ general demurrer to this cause of action.
In October 2006, the City and the defendant police officers filed a motion for summary judgment or adjudication. The alternate motion for summary adjudication raised six issues, including the following: (1) plaintiff could not recover for violation of his civil rights under sections 1981 and 1982 because undisputed evidence established there had been no intentional racial discrimination; (2) he could not recover for violation of his civil rights under section 1983 because undisputed evidence established probable cause for his arrest; and (3) there was no evidence establishing liability on the City’s part.
On January 5, 2007, the trial court issued its ruling on the motion. The court denied defendants’ motion for summary judgment, but granted summary adjudication as to the three above-mentioned issues.
Trial on the remaining issue—whether Officer Robles had violated plaintiff’s civil rights under section 1983 by using excessive force in making his warrantless arrest—concluded on December 4, 2007, with a jury verdict in defendants’ favor. This appeal followed. (Code Civ. Proc., § 904.1, subd. (a)(1).)
A second issue survived summary adjudication, that is, whether Officer Prince was liable for falsely instigating charges of forgery following plaintiff’s arrest. (See fn. 2, ante.) This issue was effectively abandoned following plaintiff’s voluntary dismissal of Prince as a defendant.
Discussion
A. Standard of Review
Plaintiff contends the trial court’s grant of summary adjudication in defendants’ favor was error. “ ‘ “ ‘We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.’ ” [Citation.]...’ [Citation.]” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) In doing so we construe the evidence liberally in support of the party opposing the motion and “ ‘resolve doubts concerning the evidence in favor of that party.’ [Citation.]” (Ibid.) We draw all reasonable inferences from the evidence in favor of the party opposing the motion. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 470.)
B. Probable Cause for Warrantless Arrest
Plaintiff argues the trial court erred in granting summary adjudication on the issue whether undisputed evidence established that the defendant officers had probable cause to arrest plaintiff for a violation of Penal Code section 273.5, and hence were not liable to plaintiff under section 1983 for making a false arrest. His position is that undisputed evidence established that Solamatina had committed larceny by trick—that is, she stole plaintiff’s cash “by misrepresenting her intention to reconcile”—and that as a consequence plaintiff had called the police and then used reasonable force in making a citizen’s arrest of Solamatina pending their arrival. In plaintiff’s view, the deposition testimony of the witnesses to the event was consistent with his own account of restraining, rather than attacking, Solamatina.
The depositions and declarations supporting and opposing the motion included the following. Plaintiff testified that he and Solamatina had separated in January 2001. By April he was living in Los Angeles, and Solamatina was living in Novato. They talked by telephone about reconciling, and on April 29 plaintiff flew to Oakland Airport with the belief that Solamatina would pick him up in her vehicle and drive back with him to Los Angeles. To demonstrate his commitment to reconciliation, he brought $20,000 in cash he had borrowed from a friend to open a restaurant, and a cashier’s check for $4,000 payable to Solamatina, to use as a deposit for an apartment they hoped to find in Thousand Oaks. When Solamatina arrived at the airport, plaintiff showed her the cash and the check, and she put them into her purse, a leather backpack. She then drove to a residence in Novato, in which she remained without him for about a half hour, and the two then drove to San Rafael, where they parked, went to a café, and talked for a while. They left the café and walked back to Solamatina’s car, at which point Solamatina informed plaintiff she was not returning to Los Angeles with him. In response, plaintiff asked her to return his money. Solamatina returned the cashier’s check, but refused to return the two envelopes containing the cash. She told plaintiff to leave and poked at him with her set of keys, scratching his hand. He in turn accused her of stealing his money and said he was going to call the police. Using his mobile phone, he called 911, and reported having “a problem with [his] wife” and needing help. Solamatina knocked the phone out of his hand and started to run away. Plaintiff grabbed one of her legs and they both fell to the sidewalk. On the ground, Solamatina held onto her backpack with both hands while plaintiff tried to take it. She began to yell “He’s trying to kill me,” and he yelled in turn “She’s lying, she is my wife and stole my money.” Several witnesses intervened at this point, separating the defendant and his wife briefly. Plaintiff’s mobile phone began to ring as a male bystander grabbed him by the shoulder; plaintiff asked the man to answer the phone, and the man did. Plaintiff made another grab at the backpack when Solamatina started to run away.
Plaintiff testified further that, after the police arrived, he spoke only with Officer Robles, who first asked plaintiff where he was from. Plaintiff said he was from Los Angeles, and before that Fresno, and Robles, shoving plaintiff in the shoulder, asked “Where were you born, damn it?” Plaintiff said he was born in Lebanon, and began to tell what had happened, starting with Solamatina’s arrival at the Oakland Airport to pick him up. Robles punched plaintiff on the chin, said he did not want to hear plaintiff’s “lousy story,” except for what had happened there on the sidewalk. Plaintiff said Solamatina had stolen his money, and he had tried to recover it and had called the police. Robles “right away... start[ed] treating [him] as the suspect,” and was not interested in hearing the details of plaintiff’s story. In the course of arresting and handcuffing plaintiff, Robles shoved him against a vehicle.
Officer Reese testified in her deposition that, when she arrived at the scene, she saw Solamatina sitting or squatting on the sidewalk, being “consol[ed]” by a bystander. Solamatina was crying and “visibly shaken and upset” as she gave her statement to Reese, at times catching her breath. Reese observed scratch marks on Solamatina’s chest, near her neck, and scratches on the top of her left hand. She also observed a red mark about one and one-quarter inch long on Solamatina’s neck. Solamatina told Reese that she and plaintiff were married but separated, and he had flown from Southern California “to try and work things out in their relationship and to pay back some money that he owed her father.” Once in her car, plaintiff gave her “two envelopes that contained some cash and cashier’s checks,” and they stopped in San Rafael to have some coffee. In the café, Solamatina told plaintiff “she no longer wanted to be in the relationship, she wanted to end it.” As they walked back to the car, plaintiff continued his attempts to persuade her to return to Los Angeles with him, and she continued to refuse. Plaintiff then “grabbed her by the shoulders and shoved her down to the ground,” and attempted to take her backpack while yelling “ ‘Give me back my money.’ ” At that point bystanders began to intervene to separate the two.
Officer Rodriguez stated in her declaration that she took statements from witnesses at the scene. One witness, Christine Amason, stated she had heard loud screaming and saw plaintiff and Solamatina “physically fighting.” They were on the ground with plaintiff on top. Plaintiff was trying to put Solamatina into a “chokehold” by wrapping the straps of her purse around her neck. Plaintiff was yelling “ ‘She’s my wife! She stole my money!’ ” while Solamatina was yelling “ ‘He’s going to kill me!’ ” Amason said she and three other witnesses “tried to pull [plaintiff] off of [Solamatina].” They succeeded in separating the two for about 30 seconds, whereupon plaintiff “tried to attack her again.”
Declaration of Rachel Rodriguez in support of City of San Rafael defendants’ motion for summary judgment, or in the alternative, summary adjudication of issues, filed October 17, 2006.
Again according to the Rodriguez declaration, another witness, Sara Mohr, reported to Officer Rodriguez that she saw plaintiff “violently attacking [Solamatina] on the sidewalk.” Plaintiff, who was screaming “ ‘She stole my money’ ” was holding Solamatina in a “headlock” as she “scream[ed] loudly,” and she saw him “pulling the straps from [Solamatina’s] purse around her neck.” Mohr helped Amason pull the plaintiff off of Solamatina.
According to Officer Rodriguez’s declaration, a third witness, Michael Tompkins, told her he had heard screaming, turned and saw a “scuffle,” between plaintiff and Solamatina. Plaintiff was yelling “ ‘She’s my wife, she stole my money,’ ” while Solamatina, on the ground with her hands on her purse, screamed “ ‘He’s trying to kill me.’ ” Tompkins and other bystanders tried to get plaintiff away from the woman, and he called 911 for help. In a separate declaration, Tompkins gave an account consistent with Rodriguez’s description of his statement.
Michael Tompkins provided deposition testimony in which he agreed that he did not call 911 but answered a mobile phone belonging to “one of those” involved. He agreed Solamatina and plaintiff “end[ed] up on the ground,” stating that the former was “on her back” and plaintiff was “in the dominant position.” He agreed “It [was] possible” that he did not actually have to use physical force to remove plaintiff from Solamatina, contrary to the statement he gave to Officer Rodriguez.
Officer Rodriguez stated in her declaration that a fourth witness, Catherine O’Sullivan, stated she had heard a woman screaming, saw plaintiff and Solamatina “struggling,” and heard Solamatina say “ ‘He’s trying to kill me.’ ” In a separate declaration, O’Sullivan confirmed this account with the following additional details. Solamatina was “trying to get away” from plaintiff who “appeared to have his arms wrapped firmly around the woman and... said she was his wife and had stolen money from him.” They “end[ed] up on the ground,” with Solamatina face down and plaintiff on top of her. Plaintiff was trying to grab Solamatina’s purse, which she was holding to her chest. Solamatina “appeared terrified,” whereas plaintiff “appeared [to be] extremely angry at her.” After she and other bystanders separated the two, plaintiff again tried to grab Solamatina’s purse and was restrained by Tompkins.
See footnote 5, ante.
From the testimony and declarations of the officers, it is undisputed that the three officers conferred together once they had completed their respective interviews. Officer Reese stated that, during this conference, she told the others she thought the red mark she had observed on Solamatina’s neck was consistent with the witnesses’ statements concerning plaintiff’s apparent efforts to choke Solamatina with her purse straps, and further expressed her opinion that plaintiff was the “dominant aggressor” in a domestic violence incident. She explained that the dominant aggressor in a domestic violence incident was the participant who was stronger, more aggressive, and less likely to be in fear of the other. Officer Robles, who made the final decision to arrest plaintiff because the incident occurred within the bounds of his assigned patrol, stated that he did so based on all the statements garnered at the scene, as well as the evidence of both participants’ injuries. He concluded plaintiff was the dominant aggressor in an incident of domestic violence, as to whom there was probable cause to arrest for spousal abuse under Penal Code section 273.5.
Law enforcement agencies are mandated to adopt and implement policies that encourage the arrest of domestic violence offenders when there is probable cause to believe that a crime has been committed. The policy also requires officers to make reasonable efforts to identify the “dominant aggressor”—the most significant as opposed to the initial aggressor. (Pen. Code, § 13701, subd. (b).) At the time of the April 2001 incident, the San Rafael Police Department was operating under a policy adopted in accordance with this mandate, the 2001 Uniform Marin County Law Enforcement Protocol for the Handling of Domestic Violence Cases (the 2001 Protocol).
“Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime.” (People v. Kraft (2000) 23 Cal.4th 978, 1037; see also Ornelas v. United States (1996) 517 U.S. 690, 699 (determination of probable cause reviewed de novo).) The crime in this instance was the willful infliction upon a spouse of a corporal injury resulting in a traumatic condition, that condition being defined as an external or internal injury, whether minor or serious in nature, caused by physical force. (See Pen. Code, § 273.5, subds. (a), (c).)
Even construing the foregoing evidence liberally in plaintiff’s favor, it is apparent to us that consideration of the participants’ observed injuries, together with all the statements given by each participant and four witnesses, would lead a reasonably prudent officer to entertain a strong and honest suspicion that plaintiff had willfully inflicted on his estranged wife a corporal injury resulting in a traumatic condition.
On the other hand, the totality of the facts considered by Officer Robles did not establish unequivocally that Solamatina had committed a theft in plaintiff’s presence and that he was merely employing reasonable force to restrain her until the police arrived to assist him in a citizen’s arrest. A citizen’s arrest may be implied when the citizen summons police, reports the offense, and points out the suspect. (Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1030–1031.) The officer summoned, however, may release the suspect from custody if the officer is satisfied there are insufficient grounds for a criminal complaint. (Pen. Code, § 849, subd. (b)(1).) Further, a citizen’s arrest cannot be based on a suspicion that a crime has occurred, however strong. It is valid only when an offense has in fact been committed or attempted in the citizen’s presence, or when a felony has in fact been committed, and the citizen knows or has probable cause to believe the arrested person committed the crime. (Pen. Code, § 837; see People v. Martin (1964) 225 Cal.App.2d 91, 94.)
Here, the officers responded to a dispatcher’s report of a fight between a male and a female, not a report of theft of money. Plaintiff told Officer Robles that he was trying to recover money that Solamatina had stolen from him, but Solamatina told Officer Reese that plaintiff had given her cash and checks in repayment of a loan from her father. The plaintiff’s act of summoning police by calling 911 might support plaintiff’s claim that Solamatina had committed theft in his presence by refusing to return money she had obtained by misrepresentation, but that fact did not necessarily preclude a reasonably prudent officer from taking Solamatina’s version into consideration. In other words, while there was no reason for the officers to disbelieve plaintiff’s version of events, there was also no reason for them to discount entirely Solamatina’s version. Under the circumstances, a reasonably prudent officer could only conclude—as the responding officers concluded in this case—that plaintiff and Solamatina had become engaged in an argument over the disputed ownership of money. The officers were in no position to adjudicate that dispute at the scene in order to confirm the validity of plaintiff’s citizen’s arrest. (Cf. Meyers v. Redwood City (2005) 400 F.3d 765, 770–774.) By contrast, the facts before them established clearly that the dispute had escalated into an incident of domestic violence.
We conclude that Officer Robles had probable cause to arrest plaintiff for a violation of Penal Code section 273.5, and that the existence of that probable cause was not negated by facts showing unequivocally that plaintiff’s actions constituted a valid citizen’s arrest that exonerated plaintiff’s spousal abuse and required the officers to take Solamatina into custody for theft.
C. Racial Discrimination
Plaintiff challenges the trial court’s grant of summary adjudication on the issue whether plaintiff’s right to recover under sections 1981 and 1982 could not be established because undisputed evidence failed to establish intentional racial discrimination. He objects that there was no legitimate purpose in Officer Robles’s question demanding to know where plaintiff was born, yet plaintiff’s response, that he was born in Lebanon, informed Robles that he was a person of Arabic descent. Plaintiff urges there was a triable issue of fact on the issue of discrimination, because a reasonable trier of fact could infer that the defendant officers’ arrest of plaintiff was motivated by racial or ethnic animus towards persons of Arabic descent. The inference, in his view, arises reasonably from: Robles’s knowledge of plaintiff’s ethnic origin; Robles’s belligerence toward plaintiff as shown by plaintiff’s deposition testimony; the officers’ disregard of his right to make a citizen’s arrest despite the fact that he had called 911; the officers’ immediate identification of plaintiff as the suspect in a domestic violence incident, whereas they identified the “White” Solamatina as the victim; and the officers’ conclusion that plaintiff was the “dominant aggressor” in the incident.
We have previously noted plaintiff’s testimony to the effect that Officer Robles demanded to know where he was born, as well as plaintiff’s statements that he was born in Lebanon and has a “strong Arabic accent.” Robles, during his deposition, testified that he regarded plaintiff’s race or ethnicity as “Middle Eastern.” In his police report, Robles classified Solamatina as “White” and plaintiff as “other”—that is, someone who did not fit into the list of racial classifications he had been instructed to use. Robles stated in his declaration that he could not recall asking plaintiff where he was born, but stated that he would have asked him to state his race, because the Department of Justice required that he include this information in his police reports. He testified in his deposition that he could not recall the list of races that officers were to use for this purpose, but he did remember at least one classification, Hispanic, which was to be used when an individual indicated that his place of birth was Mexico or a nation in Central or South America. Officer Reese testified that she knew only one person of Middle Eastern descent who had worked with her—and she recalled that individual with fondness, describing him as a “great friend, a great coworker.” Robles recalled the same individual as an officer with whom he had worked. There is absolutely nothing else in the record to indicate that Robles or any other officer made any additional comment, or asked any additional questions, that bore any relation whatever to plaintiff’s race or ethnic origin.
Declaration of Christopher Robles in support of City of San Rafael defendants’ motion for summary judgment, or in the alternative, summary adjudication of issues, filed October 17, 2006.
A cause of action for racial discrimination under sections 1981 and 1982 may include discrimination against persons of Arabic descent. (See Shaare Tefila Congregation v. Cobb (1987) 481 U.S. 615, 617–618.) But such discrimination must be intentional or purposeful to be actionable. (General Building Contractors Assn. v. Pa. (1982) 458 U.S. 375, 391.) Evidence of intentional discrimination may be shown by circumstantial evidence, and relevant considerations include the historical background of the decision, the specific sequence of events, substantive departures from normal procedure, and contemporary statements by the decision maker. (See Little v. United States (1980) 489 F.Supp. 1012, 1022–1023.)
Here there was no evidence of any history of discriminatory conduct involving the arrest of persons of Arabic descent, either by Officers Robles or Reese or by any other officer in the City’s police department. Robles’s question, asking plaintiff where he was born, may have been a departure from the ordinary procedure of asking an individual to state his race, but there was evidence that an individual’s place of birth was in some instances used to determine the racial classification required by the Department of Justice. On the other hand, Robles’s departure from usual procedure was not followed by any additional contemporaneous comment or question relating to plaintiff’s place of birth or ethnic origin. Robles went on to interview plaintiff as to the details of the April 2001 incident, and made his arrest of plaintiff only after completing his interview and consulting with Officers Reese and Rodriguez concerning the statements made by Solamatina and four witnesses. As we have noted, Robles testified that he based his arrest on the facts presented by the statements given by all the individuals interviewed, as well as the observations he and Reese had made regarding plaintiff’s and Solamatina’s injuries. We have determined that the totality of those facts provided probable cause for Robles to arrest plaintiff for spousal abuse under Penal Code section 273.5.
Under these circumstances, we cannot regard Robles’s single, isolated question to constitute a substantive departure from normal procedure sufficient to raise a triable issue of fact as to whether his arrest of plaintiff was motivated by purposeful racial or ethnic animus. The additional factors cited by plaintiff do not alter our conclusion. To link Robles’s claimed hostility toward plaintiff with ethnic animus, based solely on the one question he posed concerning plaintiff’s place of birth, is an inference more speculative than reasonable. As we have previously discussed, plaintiff’s call placed to a 911 operator and his assertion that he was trying to recover money that Solamatina had stolen from him were not sufficient either to negate the probable cause for his arrest, or to require the police to complete a citizen’s arrest by taking Solamatina into custody for theft. On the other hand, the facts supporting probable cause provided a sufficient basis to identify plaintiff both as a suspect and dominant aggressor without regard to his ethnic origin. In sum, we conclude the trial court did not err in determining that plaintiff’s undisputed evidence was insufficient to establish the purposeful racial discrimination necessary to support a cause of action under sections 1981 and 1982.
Finally, we note that plaintiff’s argument on this point includes a suggestion that there was a triable issue as to whether racial or ethnic discrimination was a “motivating factor” in his arrest, for purposes of his recovery for unlawful arrest under section 1983. Plaintiff submitted no written argument opposing the motion for adjudication, however, and did not raise this argument at the hearing on the motion. The trial court’s grant of summary adjudication for lack of evidence of intentional racial discrimination was accordingly limited to the recovery plaintiff sought pursuant to sections 1981 and 1982. Under these circumstances we decline to address, for the first time on appeal, plaintiff’s suggestion concerning his recovery under section 1983. (See Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872–873.) We observe, however, that even for purposes of a recovery under sections 1981 and 1982, the existence of purposeful racial or ethnic animus need only be a motivating, rather than sole, factor. (Little v. United States, supra, 489 F.Supp. 1012, 1023.) In our view the determination that plaintiff’s evidence was insufficient to show racial discrimination for purposes of recovery under sections 1981 and 1982 applies equally to his recovery under section 1983.
D. Qualified Immunity
Plaintiff suggests the trial court erred in concluding that the defendant officers were entitled to qualified immunity. He reasons that the undisputed evidence, particularly that showing he had called 911 and had informed Officer Robles at the scene that Solamatina had stolen his money, presented circumstances in which no reasonable officer, who was acquainted with the law relating to theft and citizen’s arrest, could have objectively believed that an arrest of plaintiff for spousal abuse was justified. He suggests that Robles’s “racial animus,” as well as the lack of probable cause, rendered his arrest objectively unreasonable.
We first observe that the trial court denied, rather than granted, summary adjudication on the issue of qualified immunity—at least as to the more specific issue whether the defendant officers were entitled to qualified immunity from liability for the use of excessive force. Because the court granted summary adjudication on the issue whether the officers had probable cause to arrest plaintiff, as well as on the issue whether their conduct constituted intentional racial discrimination, it never considered whether or not undisputed evidence established their qualified immunity from liability on these grounds. It is not our role to make such a determination in the first instance. (See Saville v. Sierra College, supra, 133 Cal.App.4th 857, 872–873.) More importantly, we have determined that the trial court properly determined, by summary adjudication, that there was probable cause to arrest plaintiff and there was no intentional racial discrimination. Hence it is not necessary to address the issue whether the officers had qualified immunity from liability either for unlawful arrest or for purposeful discrimination impairing plaintiff’s civil rights.
E. The City’s Liability
Plaintiff objects finally to the trial court’s determination that plaintiff’s evidence was not sufficient to establish liability on the part of the City. He argues the 2001 Protocol “foster[ed] racial discrimination and arrest without probable cause” in violation of sections 1981, 1982, and 1983, particularly because it failed to “caution against stereotyping” on the basis of race or ethnic origin, and failed to advise that an otherwise “ ‘significant aggressor’ ” might “in fact, be exercising his or her right to make a citizen’s arrest.”
We see no merit in these contentions. The 2001 Protocol, in accordance with Penal Code section 13701, requires officers to make a reasonable effort to identify the dominant aggressor in an incident of domestic violence, and encourages the arrest of a dominant aggressor in that it encourages the arrest of domestic violence offenders generally, but discourages “dual” arrests. It cannot be said to encourage any arrest without probable cause. In those instances where the 2001 Protocol encourages or requires arrest, it does so in accordance with statute, particularly that provision of section 13701 that encourages arrests for domestic violence only when there is otherwise probable cause. (Pen. Code, § 13701, subd. (b); see, e.g., Pen. Code, § 836, subds. (c), (d).) The factors to be considered in determining the dominant aggressor are race neutral and consistent with those articulated by Officer Reese in her deposition testimony. The issues of racial or ethnic discrimination and citizen’s arrests—at least citizen’s arrests unrelated to domestic violence offenses—bear no direct relation to the statutory provisions of section 13701, which set out the mandate that resulted in the adoption by Marin County law enforcement agencies of the 2001 Protocol. (Cf. Pen. Code, § 836, subd. (b).) Thus, neither the omission from the 2001 Protocol of a “caution” against racial stereotyping, nor the omission of an advisement concerning citizen’s arrests unrelated to domestic violence, may be regarded as a tacit encouragement to police officers either to engage in unlawful discrimination or to ignore a clearly valid citizen’s arrest for an offense unrelated to domestic violence. More significantly, plaintiff’s argument regarding the City’s liability is limited to the effect of the 2001 Protocol on the defendant officers’ alleged unlawful arrest and racial discrimination. As discussed above we have concluded the trial court did not err when it determined by summary adjudication that plaintiff’s evidence failed to establish either unlawful arrest or purposeful racial discrimination. For this reason alone the 2001 Protocol cannot be said to have been the “ ‘moving force’ ” underlying a deprivation of plaintiff’s civil rights. (See Board of Comm’rs of Bryan Cty. v. Brown (1997) 520 U.S. 397, 403–404.)
See footnote 7, ante.
See text accompanying footnote 7, ante.
We conclude the trial court properly granted summary adjudication of the City’s lack of liability based on its adoption of a policy that allegedly contributed to the defendant officers’ deprivation of plaintiff’s civil rights.
Disposition
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.