Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 07CECG002419AMS. Alan M. Simpson, Judge.
Juan M. Falcon & Associates and Juan M. Falcon for Plaintiff and Appellant.
Ferguson, Praet & Sherman and Kelly R. M. Irwin for Defendants and Respondents.
OPINION
Poochigian, J.
STATEMENT OF THE CASE
On July 26, 2007, appellant Daniel Barra filed a complaint for damages in Fresno Superior Court. He named respondents City of Kerman, the Kerman City Police Department, Kerman City Police Chief William Newman, and Officers Ronald Gaxiola, Gurdeep Deol, and Tom Chapman as defendants. Appellant alleged causes of action for (1) violation of 42 U.S.C. section 1983; (2) false arrest and imprisonment; (3) interference with civil rights (Civ. Code, § 51.7); (4) intentional infliction of emotional distress; (5) negligence per se; (6) negligent infliction of emotional distress; (7) assault and battery; and (8) negligence. Appellant prayed for general, special, and exemplary damages, civil penalties, attorney fees and costs, among other things.
On October 29, 2007, respondents filed an answer generally denying the material allegations of the complaint and setting forth 33 affirmative defenses.
On July 16, 2008, respondents moved for summary judgment (Code Civ. Proc., § 437c, subd. (b)) or, alternatively, for summary adjudication of issues.
On October 15, 2008, appellant filed two declarations in opposition to respondents’ motion.
On October 24, 2008, respondents filed a reply to appellant’s opposition declarations and lodged a copy of appellant’s deposition transcript with the court.
On November 18, 2008, the court conducted a hearing, granted the motion for summary judgment by extended minute order, and denied respondents’ request for attorney fees and costs (Code Civ. Proc., §§ 1021.76, 1038). On December 1, 2008, the court filed a formal summary judgment. On January 16, 2009, appellant filed a timely notice of appeal.
A summary judgment entered under Code of Civil Procedure section 437c is an appealable judgment. (Code Civ. Proc., § 437c, subd. (m)(1)).
We affirm.
Where a trial court grants a motion for summary judgment, the reviewing court takes the facts from the record that was before the trial court when it ruled on that motion. The appellate court reviews the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that as to which objections were made and sustained. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1249-1250.)
Facts Elicited from the Declarations of the Police Officers
Kerman City Police Officer Gurdeep Deol was on duty on December 10, 2006. At 4:32 a.m. that day, he received a dispatch about suspicious activities at the Kerman Plaza Apartments. The complex was located at 150 South First Street in Kerman, south of Highway 180 (Whitesbridge Road) and west of Highway 145 (Madera Avenue), and consisted of single story, conjoined apartments. The caller reported she could hear someone whistling and kicking on a door west of her apartment.
Officer Ronald Gaxiola arrived at the scene first, parked his vehicle on the north side of the complex, and walked in. Officer Deol arrived, entered the apartments through the south side driveway, and proceeded east into the complex in an attempt to flush out any suspects. Deol drove to the end of the driveway, made a U-turn, and proceeded west. In doing so, he noticed a broken window in Apartment No. 129. The broken window was east of the entrance door to the apartment and the screen door had been removed.
Officers Deol and Gaxiola met in the south side driveway and attempted to make contact at the apartment. Gaxiola knocked on the door several times but received no response. Gaxiola checked the scene near the broken window and Deol checked near some parked vehicles for possible suspects. As the two officers checked the area, appellant walked up from the east side of the complex and asked what was going on. Appellant acted suspiciously, had his hands inside his pockets, and appeared nervous as he approached the two officers. For reasons of safety, Deol asked appellant to remove his hands from his pockets and asked who he was. Appellant said he lived in Apartment No. 129 but claimed he had no key to the premises. Deol said appellant talked with a slur, had red watery eyes, was unsteady on his feet, and had a strong odor of alcohol on his breath.
The two officers told appellant about the dispatch they had received. Appellant said he had been at a friend’s house across the street and did not know about the broken window and screen door. Appellant said his younger brother should have been inside the apartment with a friend. Appellant opened the entry door and the officers attempted to clear the apartment for suspects. When no one came out of the apartment, appellant allowed the officers to enter. Deol asked appellant to wait in the driveway until the officers stepped back out of the apartment. Deol also advised appellant that Officer Tom Chapman was on his way to the scene. Gaxiola and Deol then entered the apartment and immediately smelled the odor of burnt marijuana. Deol also noticed a large “bong” on the kitchen table with several small burnt marijuana buds. The two officers found no one inside the apartment.
Upon arrival in the area, Officer Chapman went immediately to Apartment No. 129. Appellant was waiting outside as Officers Deol and Gaxiola were checking the interior of the apartment. Deol and Gaxiola found two medium-sized pieces of glass inside the bedroom with the broken window. A dirty spot on the carpet suggested that someone had entered the apartment. The two officers went outside and contacted appellant, who was now waiting with Officer Chapman. Deol asked appellant whether they had been smoking marijuana in the apartment but appellant avoided giving an answer. Appellant re-entered the apartment and Deol noticed a large quantity of empty beer bottles in the kitchen. Appellant said they had a party for his brother. When appellant entered the bedroom, he did not seem surprised at the broken window. After Deol attempted to contact appellant’s brother on a cell phone, appellant explained he had just thrown a party with some strippers for his brother’s 18th birthday.
After appellant and Deol stepped outside of the apartment, appellant started to change his story regarding his whereabouts. He initially said he was across the street from the complex. Then he said he was at a friend’s apartment a few doors east of Apartment No. 129. Appellant did not have any identification on his person and had no documentation to show he resided in Apartment No. 129. Officer Chapman suggested there might be mail inside the apartment to show his residency. Appellant re-entered and produced a bank statement. At that point, Officer Gaxiola told Deol the tenant in Apartment No. 135 had spoken to him. The tenant said appellant had been in Apartment No. 135 earlier in the evening but had left a few hours before Gaxiola made contact with the tenant.
Gaxiola asked appellant if he had come from across the street or from the friend’s apartment. Appellant started to curse and speak loudly. He said, “[F]uck man, I just came from over there, whats [sic] your problem.” Although Gaxiola asked appellant to relax and stop raising his voice, appellant got louder and started calling the officer a “mother fucker.” Appellant took a defensive stance by moving one of his feet backwards and said, “[F]uck, you gonna do, arrest me.” Deol concluded appellant was intoxicated and unable to care for his safety. Gaxiola told appellant he was under arrest and Chapman moved into position to handcuff appellant. According to Deol, appellant got out of the defensive stance and placed his hands behind his back.
Officer Gaxiola grabbed appellant’s left arm so Officer Chapman could place the handcuffs. Before Chapman could do so, appellant pulled his arm away from Gaxiola’s grasp, started to physically resist, and pushed Gaxiola’s chest. Deol was standing behind plaintiff. He pulled out his department-issued Taser and applied it to appellant as he turned towards Deol. Two darts penetrated appellant’s skin through an oversized jersey. The darts were directed to the right side of appellant’s abdomen under his arm. Gaxiola, Chapman, and appellant went down to the ground as the officers continued their attempt to handcuff appellant. Deol and Chapman said the Taser cycle was stopped short of the normal five-second duration due to tangled wires. Gaxiola was able to grab one of appellant’s arms but he continued to resist with his right arm. Gaxiola told appellant to “stop resisting” while they were on the ground. Appellant twice apologized but then continued to resist by tucking his right arm under his body. Officer Deol moved behind Officer Chapman and then Chapman heard the Taser go off two or three more times. Appellant showed no effect and continued to resist. When the officers were still unable to place a handcuff on appellant’s right arm, Deol took off the Taser cartridge and applied the Taser to the right side of his neck for approximately four seconds. The officers then handcuffed appellant.
Appellant’s brother and a friend arrived at the scene at this point. They ran toward appellant and the officers and Deol told them to stay back. Appellant was belligerent and yelling loudly. Deol advised dispatch there was a subject in custody, and he requested emergency medical services (EMS) for a Taser application. Gaxiola helped appellant to his feet and started to search his person. Appellant failed to comply with Gaxiola’s orders during the search and started to turn his body toward Gaxiola. The latter seated appellant on the ground to gain control. Appellant continued to curse loudly and officers told his brother to stay away several times. Due to circumstances at the scene, Deol decided to transport appellant to the Kerman Police Department and requested emergency medical personnel to respond there. When the EMS staff arrived to evaluate appellant, he told them he wanted to go to the hospital since it was going to be on the Kerman Police Department’s bill. Appellant remained uncooperative and would not answer questions about his identity.
Deol said the darts were no longer impaled in appellant’s skin when they were at the Kerman Police Department. He saw the darts hanging off of appellant’s jersey. Deol said he pulled out the darts and placed them back in the cartridge for evidence. An ambulance eventually transported appellant to University Medical Center (UMC) in Fresno and Deol followed the ambulance. Upon arrival at UMC, appellant received treatment and was cleared for booking at the Fresno County Jail. Deol took pictures of appellant’s injuries at the hospital. A photograph of the right abdomen showed two small red marks resembling bee stings. The photo of the right side of the neck showed redness from the contact Tase and two small bumps where the Taser contacts touched appellant’s skin. Deol noted that appellant also had a few fresh scrapes on his left side elbow.
Deol transported appellant to the Fresno County Jail and booked him for resisting, obstructing, or delaying an officer (Pen. Code, § 148, subd. (a)(1)) and public intoxication (§ 647, subd. (f)). Deol called off-duty Sergeant Guerra, advised him of the incident, and forwarded the pictures to Guerra.
Facts Elicited from the Declarations of Appellant and His Friend
Matt Ghinazzi was employed at Slumberger Lumber in Kerman on December 10, 2006. At approximately 4:35 a.m. that day, Ghinazzi was at his apartment with appellant’s brother, Alex Barra. Ghinazzi received a telephone call on his cellular phone. The unidentified caller asked where he was and said that he needed to go to Daniel Barra’s house. Ghinazzi did not know the identity of the caller and hung up on him. A few seconds later, the individual called again, said he was a Kerman Police officer, and asked to speak with Daniel Barra’s brother. After Alex Barra spoke with the officer, he and Ghinazzi walked to appellant’s apartment.
As they approached the apartment, Ghinazzi saw shadows and heard a struggle going on. Ghinazzi heard individuals yelling at Daniel Barra and then heard clicking sounds from what he “figured was a [T]aser gun.” After hearing the clicking sounds, Ghinazzi saw appellant go down to the ground. The individuals, police officers, placed handcuffs on appellant while the latter was on the ground. Ghinazzi then saw an officer tase appellant while the latter was handcuffed on the ground in some water. Ghinazzi was about six feet behind the officer when this occurred and asked what was happening. The individual holding the Taser was Officer Deol. Deol turned toward Ghinazzi, pointed the Taser at him, and said, “[S]tay the fuck back or I am going to tase you.” Ghinazzi remembered seeing Deol tase appellant while the latter was standing. At one point in the tasering, appellant yelled to Alex Barra and Ghinazzi to call their mother.
The next day, appellant and Ghinazzi were working at Slumberger Lumber and mentioned the incident to their employer, Steve Slumberger. That same day Kerman Police Chief William Newton and another officer visited the lumber yard. Appellant removed his shirt to show the Taser marks on his body to the police officials. Ghinazzi recalled seeing 12 to 14 marks on appellant’s body. He saw marks on the back of appellant’s neck, his ear, his chest, back, and side. Ghinazzi remembered Chief Newton and the other officer taking photographs of the Taser marks.
According to appellant, he was not acting suspiciously or nervously when he had contact with Kerman Police officers on December 10, 2006. Appellant maintained he did not talk with a slur, was not unsteady on his feet, was not intoxicated, and could care for his own safety and that of others. Appellant maintained the officers were unaware of his marijuana and alcohol consumption at the time of his arrest. Appellant said he was in Apartment No. 135 prior to his encounter with the officers.
Appellant declared that Officers Chapman and Gaxiola were able to handcuff him on the ground because he was not resisting the officers. Appellant also maintained he was not trying to get up when Officer Deol applied the contact Taser to his neck area. Appellant claimed he was tased between four and eight times during his arrest and between three and five times after he was handcuffed. Appellant said his brother and their friend arrived at the scene after the Taser application. Appellant said he did not curse loudly, did not create a hostile environment, and was not charged with any criminal offense relating to his contact with the police officers.
Appellant said he suffered numerous Taser injuries as a result of his contact with the officers. Appellant maintained Officer Deol used excessive force by applying the Taser while appellant was handcuffed and used excessive force in effectuating appellant’s arrest. According to appellant, Officer Deol was not disciplined for the excessive use of the Taser.
Ruling of the Trial Court
On November 18, 2008, the court adopted its tentative ruling on respondents’ motion for summary judgment and held:
(1) appellant failed to file proper opposition by failing to file a memorandum in opposition (Cal. Rules of Court, rule 3.1350(e)(1));
(2) as to the first cause of action for violation of 42 U.S.C. section 1983, respondent officers exercised reasonable force in arresting appellant, who resisted arrest and whose self-serving declaration in opposition to summary judgment contradicted his deposition testimony and whose evidence of excessive force by officers was conclusory;
(3) as to the second cause of action for false arrest/false imprisonment, respondent officers had reasonable cause to arrest appellant for intoxication and appellant admitted at deposition he consumed three or four beers and inhaled three bong hits of marijuana prior to arrest;
(4) as to the alleged violations of Civil Code sections 43, 51, 51.7, and 52.1, there was no evidence that respondents acted against appellant unlawfully because of his race or national origin and no evidence that respondents attempted to interfere with a specific constitutional right by threats, intimidation, or coercion against appellant;
(5) as to the fourth cause of action for intentional infliction of emotional distress, respondent officers used reasonable force in arresting appellant and appellant failed to meet the burden of production to show triable issues of fact;
(6) as to the fifth cause of action for negligence per se (Evid. Code, § 669) based upon alleged violations of the California Constitution and Civil Code sections 43 and 52.1, the appellant failed to provide evidence to support his burden of production;
(7) as to the sixth cause of action, the court noted there is no independent tort of negligent infliction of emotional distress;
(8) as to the seventh cause of action for assault and battery, the appellant failed to meet his burden of production to show respondent officers used unreasonable force;
(9) as to the eighth cause of action for negligence, respondent officers used reasonable force in effectuating arrest and appellant failed to meet his burden of production to show triable issues of fact; and
(10) the court denied respondents’ request for attorney fees and costs (Code Civ. Proc., §§ 1021.7, 1038).
DISCUSSION
WAS SUMMARY JUDGMENT ERRONEOUS BECAUSE THERE WERE TRIABLE ISSUES OF MATERIAL FACT?
Appellant contends triable issue of material fact existed as to whether (a) appellant was incarcerated at the time of the encounter; (b) the officers had probable cause to arrest him; (c) excessive force was used in effectuating appellant’s arrest; (d) appellant’s arrest was lawful, thereby entitling the respondent public employees to invoke statutory immunity (Pen. Code, § 836.5); (e) the moving papers submitted by respondents raised inferences reasonably deducible that material issues of fact existed as to excessive force and probable cause to arrest; and (f) appellant’s declarations were sufficient to disclose triable issues of material fact to defeat respondents’ motion for summary judgment as to all causes of action.
The purpose of summary judgment is to penetrate evasive language and adept pleading and to ascertain, by means of affidavits, the presence or absence of triable issues of fact. (Watson v. State of California (1993) 21 Cal.App.4th 836, 840-841.) Summary judgment is proper if the supporting papers are sufficient to sustain a judgment in favor of the moving party as a matter of law and the opposing party presents no evidence giving rise to a triable issue as to any material fact. (Code Civ. Proc., § 437c, subd. (c).) To prevail on a summary judgment motion, the defendant must conclusively negate a necessary element of the plaintiff's case or establish a complete defense. (Horsemen's Benevolent & Protective Assn. v. Insurance Co. of North America (1990) 222 Cal.App.3d 816, 820.)
When the plaintiff pleads several theories, the challenge to the opponent is made by the complaint. This requires the moving defendant to affirmatively react to each theory or condition which supports a theory, if the motion for summary judgment is to be successful. A defendant successfully meets his or her burden on a summary judgment motion by providing evidence which negates the plaintiff's claim. (Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 218, disapproved on another point in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1248-1251.)
A defendant has met his or her burden of showing a cause of action has no merit if that party has shown one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant has met that burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action. (Former Code Civ. Proc., § 437c, subd. (f); Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548-549; City of Emeryville v. Superior Court (1991) 2 Cal.App.4th 21, 25.) Where the evidence presented by defendant does not support judgment in his or her favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff. (Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 831.) The evidence of the moving party is strictly construed and that of the opposing party liberally construed. (Coppola v. Superior Court (1989) 211 Cal.App.3d 848, 862.)
Where there is no material issue of fact to be tried and the sole question before the court is one of law, it is the duty of the trial court on a motion for summary judgment to hear and determine the issue of law. (Rombalski v. City of Laguna Beach (1989) 213 Cal.App.3d 842, 848.) In reviewing a grant of summary judgment, the issues are framed by the pleadings since it is these allegations to which the summary judgment motion must respond. (Ramona Convent of the Holy Names v. City of Alhambra (1993) 21 Cal.App.4th 10, 24.) The appellate court must make its own independent determination of the construction and effect of the papers submitted. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513-1515; Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 757.) In other words, the appellate court reviews the record de novo to determine whether the defendant has conclusively negated a necessary element of the plaintiff’s case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674.)
An appellate court reviews the trial court’s grant of summary judgment de novo, applying the same statutory procedure followed in the trial court. (Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 574.) Inasmuch as the grant of a motion for summary judgment strictly involves questions of law, we must reevaluate the legal significance and effect of the parties’ moving and opposing papers. (Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 53, 57.) An appellate court determines on its own whether the criteria of Code of Civil Procedure section 437c have been met. (Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 265.)
Section 437c, subdivision (b)(3) states:
“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”
California Rules of Court, rule 3.1350 (e) states in pertinent part:
“(e) Documents in opposition to motion
“... [T]he opposition to a motion must consist of the following documents, separately stapled and titled as shown:
“(1) [Opposing party’s] memorandum in opposition to [moving party’s] motion for summary judgment or summary adjudication or both;
“(2) [Opposing party’s] separate statement of undisputed material facts in opposition to [moving party’s] motion for summary judgment or summary adjudication or both;
“(3) [Opposing party’s] evidence in opposition to [moving party’s] motion for summary judgment or summary adjudication or both (if appropriate).…”
The separate statement is not merely a technical requirement. Rather, it is an indispensible part of the summary judgment or adjudication process. (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.) Almost two decades ago, Division One of the Second Appellate District observed: “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication of issues] and summary judgment to determine quickly and efficiently whether material facts are disputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.)
In opposing a defendant’s motion for summary judgment, the plaintiff must submit a separate statement setting forth the specific facts showing that a triable issue of material fact exists. Without a separate statement of undisputed facts with references to supporting evidence in the form of affidavits or declarations, it is impossible for the plaintiff to demonstrate the existence of disputed facts. De novo review does not obligate the appellate court to cull the record for the benefit of the appellant to attempt to uncover the requisite triable issues. (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.) The separate statement is required, not discretionary, on the part of each party, and the statutory language makes the failure to comply with this requirement sufficient grounds to grant the motion. (Code Civ. Proc., § 437c, subd. (b)(3).) (Whitehead v. Habig, supra, 163 Cal.App.4th at p. 902.)
In the instant case, appellant filed two declarations--his own and Matt Ghinazzi’s--in opposition to respondents’ motion for summary judgment. As the trial court noted, appellant did not file proper opposition to the respondents’ motion. Appellant neither filed a memorandum of points and authorities in opposition to the motion (Cal. Rules of Court, rule 3.1350(e)(1)) nor did appellant file the statutorily-required separate statement (Code Civ. Proc., § 437c, subd. (b)(3), Cal. Rules of Court, rule 3.1350(e)(2)). Division Five of the Second Appellate District recently held it would be an abuse of discretion for a trial court to grant summary judgment based on a failure to file a separate statement when the moving parties have not set forth a prima facie showing for summary judgment in their moving papers. A prima facie showing is one that is sufficient to support the position of the party in question. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416-417.)
While we follow the steps outlined by the Kojababian court in the instant appeal, we question the ultimate efficacy of de novo review absent one of the procedural tools mandated by section 437c, i.e., the opponent’s separate statement.
“[W]hen a defendant moves for summary judgment, he must make a prima facie showing, i.e., ‘he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not--otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.’.…A defendant need not ‘conclusively negate an element of the plaintiff’s cause of action’ … so long as the defendant shows the element cannot be established….” (Y.K.A. Industries, Inc. v. Redevelopment Agency of the City of San Jose (2009) 174 Cal.App.4th 339, 353.)
Appellant’s first cause of action, claiming a violation of 42 U.S.C. section 1983, cited the Fourth and Fourteenth Amendments to the U.S. Constitution and was predicated upon “[t]he unlawful and illegal arrest and prosecution” of appellant by respondent officers. A section 1983 claim of false arrest based on the Fourth Amendment right to be free from unreasonable seizures may not be maintained if there was probable cause for the arrest. (Colon v. Ludemann (D.Conn. 2003) 283 F.Supp.2d 747, 755.) A police officer has probable cause to arrest a suspect without a warrant if the available facts suggest a fair probability the suspect has committed a crime. An officer who observes criminal conduct may arrest the offender without a warrant, even if the pertinent offense carries only a minor penalty. Being under the influence of alcohol or a controlled substance in a public place is a crime under California law. (Tatum v. City and County of San Francisco (9th Cir. 2006) 441 F.3d 1090, 1094-1095; Pen. Code, § 647, subd. (f).) The three officers who detained appellant submitted declarations to show appellant slurred his speech, had red watery eyes, was unsteady on his feet, and took an aggressive stance toward the officers. Their declarations precluded a finding of an illegal arrest.
As to the second cause of action, alleged false arrest and false imprisonment are not separate torts. The former is simply one way to commit the latter. (Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 673.) Respondent officers, by way of their declarations in support of summary judgment, made a prima facie showing that appellant’s objective symptoms at the apartment complex justified his arrest for public intoxication (Pen. Code, § 647, subd. (f)).
The third cause of action alleged interference with rights set forth in the Tom Bane Civil Rights Act (Civ. Code, §§ 43, 51, 52.1). Civil Code section 43 grants every person the right of protection from bodily restraint or harm. This is essentially a reallegation of false imprisonment. As noted above, respondent officers, by way of their declarations, made a prima facie showing that appellant’s objective symptoms justified his arrest for public intoxication. Civil Code section 51 is part of the Unruh Civil Rights Act, which expresses a state and national policy against discrimination on arbitrary grounds. (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 1164-167.) Appellant’s complaint failed to allege discrimination based on “sex, race, color, religion, ancestry, or national origin,” as set forth in Civil Code section 51. Civil Code section 52.1, part of the Tom Bane Civil Rights Act, authorizes a civil action “[i]f a person … interferes by threats, intimidation, or coercion … with the exercise or enjoyment by any individual … of rights secured by the Constitution or laws of the United States….” The legislature enacted section 52.1 to stem a tide of hate crimes. Section 52.1 requires an attempted or completed act of interference with a legal right, accompanied by a form of coercion. The essence of a Bane Act claim is that defendant, by threats, intimidation, or coercion, prevented the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something he or she was not required to do under the law. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882-883.) Here, appellant failed to allege what threats, intimidation, or coercion had been employed against him and what constitutional and/or legal rights had been implicated.
The fourth cause of action alleged intentional infliction of emotional distress and the fifth cause of action alleged negligence per se, both causes of action arising from false arrest and imprisonment. Once again, respondent officers, by way of their declarations in support of summary judgment, made a prima facie showing that appellant’s objective symptoms at the apartment complex justified his arrest for public intoxication (Pen. Code, § 647, subd. (f)).
The sixth cause of action alleged negligent infliction of emotional distress. Negligent infliction of emotional distress is not an independent tort but the tort of negligence. The elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. The existence of a duty depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.) California law imposes a duty to avoid causing emotional distress in two general situations. The first involves “bystander” situations in which a plaintiff seeks to recover damages as a percipient witness to the injury of another person. The second situation is found where the plaintiff is a “direct victim.” In such a situation, the emotional distress damages result from a duty owed the plaintiff that is assumed by the defendant, imposed on the defendant as a matter of law, or that arises out of a relationship between the two. (McMahon v. Craig (2009) 176 Cal.App.4th 222, 229-230.)
Although appellant alleges a duty on the part of respondent officers, that duty is “not to falsely arrest and imprison.” Again, the officers’ declarations in support of summary judgment made a prima facie showing that appellant’s objective symptoms at the apartment complex justified his arrest for public intoxication (Pen. Code, § 647, subd. (f)).
As to the seventh cause of action, appellant alleged assault and battery by respondent officers “under the color of law, illegally and without legal justification.” Appellant alleged the officers tackled, assaulted, and used excessive force on him, including tasering him “approximately 13 times.” In a battery action against a police officer, a plaintiff must prove unreasonable force as part of the cause of action. The officer in the first instance is the judge of the manner and means to be taken in making an arrest. An officer in California may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance. (Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1272-1273.) In their respective declarations, respondent officers set forth appellant’s objective symptoms, including his resistance, failure to submit to handcuffing, taking a fighting stance, and verbal abuse. Appellant was unable to show the force used during the arrest was unreasonable under the circumstances.
In the eighth and final cause of action, appellant alleged respondent officers “negligently, carelessly and unlawfully attempted to restrain [him] by use of excessive force by repeatedly tasering him (13 times) about the body.…” Appellant further alleged the tasering caused severe injuries to his body and head and asserted that respondents “failed to exercise reasonable care to prevent the injuries from occurring by utilizing excessive force without justification.”
The Fourth Amendment governs the use of force and requires peace officers to use only an amount of force that is objectively reasonable in light of all of the surrounding circumstances. Assessing the level of permissible force requires a balancing of the nature and quality of the intrusion on the Fourth Amendment interests of the individual and the countervailing interests of the government. Courts must give due regard to the fact that law enforcement officers often make split-second judgments about the amount of force to use. (Graham v. Connor (1989) 490 U.S. 386, 396-397; Price v. County of San Diego (S.D. Cal. 1998) 990 F.Supp. 1230, 1236.)
“If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest.” (Pen. Code, § 834a.) A public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. (Gov. Code, § 820.4.) Governmental immunity in California is governed by statute and Government Code section 820.4 focuses upon the nature of the alleged tort, rather than the nature of the governmental duties performed by the defendant. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 756.) “[A] governmental entity can be held vicariously liable when a police officer acting in the course and scope of employment uses excessive force or engages in assaultive conduct.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 215.)
To prevail on a negligence claim, appellant was required to show the officers acted unreasonably and that the unreasonable behavior harmed him. (Price v. County of San Diego, supra, 990 F.Supp. at p. 1245.) Here, respondent officers set forth appellant’s objective symptoms, including his resistance, failure to submit to handcuffing, taking a fighting stance, and verbal abuse at the scene of the detention. Appellant was unable to show the force used during the arrest was unreasonable under the circumstances.
In light of the foregoing facts and circumstances, the respondents made a proper prima facie showing and the trial court could properly grant summary judgment based upon appellant’s failure to file a separate statement of undisputed and disputed facts as required by Code of Civil Procedure section 437c, subdivision (b)(3) and California Rules of Court, rule 3.1350(e)(2)).
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
WE CONCUR: Gomes, Acting P.J, Hill, J.