Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. L00557, Joseph W. Zimmerman, Judge. Affirmed in part and reversed in part.
NARES, J.
This action arises out of a traffic accident in a Costco parking lot in El Centro, California, where Ben Charles Christie's truck contacted a car driven by Stephanie Hernandez (Hernandez), the wife of an El Centro police officer. She called 911, claiming he rammed her vehicle from behind three times. Christie maintains he only accidently tapped her car once while trying to maneuver around her vehicle. When police arrived, they arrested Christie and charged him with felony assault with a deadly weapon.
After a jury acquitted Christie of the assault charge, he filed this action against the City of El Centro (El Centro), and El Centro Police Officers Efren Coronel and Ray Bonillas (collectively, defendants), alleging the police officers lacked probable cause to arrest him. The defendants brought a motion for summary judgment which the court granted on the basis there was no triable issue of fact regarding the officers' probable cause to arrest Christie.
On appeal, Christie asserts the court erred in granting summary judgment because (1) the evidence established a violation of Christie's constitutional rights; (2) no prudent person would reasonably conclude that a crime had been committed under the facts of this case; (3) while officers are not required to conduct a trial at the scene, they may not ignore exculpatory evidence; (4) the willful suppression of evidence and deliberate falsehoods in the arrest process vitiated any probable cause; (5) the arresting officers failed to prove there was probable cause to arrest Christie; and (6) the arresting officers are not entitled to qualified immunity in violating Christie's civil rights.
We conclude that a triable issue of fact exists as to whether the officers had probable cause to arrest Christie because a jury could reasonably conclude no reasonable police officer would conclude the crime of assault with a deadly weapon had been committed. Accordingly, we reverse the judgment as to all causes of action, with the exception of the malicious prosecution claim and the claimed violation of Christie's First, Fifth, Eighth and Fourteenth Amendment rights. The judgment in defendants' favor on those causes of action is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
We must view the evidence submitted in connection with a motion for summary judgment in a light most favorable to the party opposing the motion and resolve "any evidentiary doubts or ambiguities in [his or her] favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Accordingly, we take the facts in large part from the evidence presented by Christie in opposition to defendants' motion for summary judgment.
On November 23, 1999, just before Thanksgiving, Hernandez, who is the wife of El Centro Police Officer Luis Hernandez (Officer Hernandez), stopped her 1999 Ford F-150 pickup truck in the middle of the thoroughfare of a Costco parking lot, blocking traffic. Christie stopped his 1997 Ford F-250 pickup truck behind two other vehicles that were already stopped behind Hernandez's vehicle. Four or five vehicles were behind Christie's vehicle, preventing him from backing up. Although the front rows were full, the rest of the parking lot was empty. Rather than look for an empty spot, Hernandez was waiting for someone to come out and leave a parking spot in front so she would not have to walk an extra 15 yards. She expected others to wait.
The other vehicles began honking their horns. When Hernandez refused to move, two automobiles in front of Christie passed Hernandez's vehicle to the right. Christie attempted to drive his vehicle around Hernandez's vehicle and, in the process, his vehicle came in contact with her vehicle, bumper to bumper. The contact was so minor that her car did not move and no damage resulted to either vehicle. Christie lightly tapped on his horn in an attempt to get her to move to one side so that he could get around. She refused.
Unable to go around, Christie tried to back his vehicle up. Unable to back up, he exited his truck and attempted to talk with Hernandez and see if she would move her vehicle. However, she had her windows up and ignored him, turning her back to him while she was talking on her cell phone. At that time, Christie only saw an infant lying on the backseat in Hernandez's vehicle. He also saw two children standing next to the first parking spot. However, he did not see anyone ready to leave. Unable to go around, Christie, along with four or five other vehicles, waited, hoping someone would come out of the store and leave so that Hernandez could park her vehicle. Christie waited for approximately 20 minutes. A man and a woman then came out with their groceries, and their parking spot opened up in front. Hernandez pulled in and parked. Christie drove his vehicle to the tire shop to have a tire fixed and went inside Costco to do his shopping.
When Christie's truck came into contact with Hernandez's truck as he tried to drive around her, she called the police. She claimed she called the police because she was "terrified" and "frantic." She also claimed the dispatcher told her "to turn away [from Christie] and . . . avoid looking him in the eye." However, on the 911 dispatcher's tape she is calm, collected and deliberate in providing the color and license plate number of Christie's truck. She was able to identify it as a license plate from Alberta, Canada. Moreover, contrary to Hernandez's version of events, the dispatcher did not tell her to avoid looking at Christie or anything similar.
One of the first things Hernandez told the 911 dispatcher was that she was "352's wife." Her husband's badge number was "352." The dispatcher advised the officers going to the scene that the reporting party was badge No. 352's wife. When Officers Bonillas and Coronel arrived, they immediately recognized Hernandez as the wife of Officer Hernandez. Officers Bonillas and Coronel were social friends of the Hernandezes. Officer Bonillas lived in the same development as Hernandez and her husband. Officer Hernandez and Officer Coronel are detectives who work together. Officers Bonillas, Coronel, and Hernandez were on a first name basis. When Officer Bonillas first arrived at the scene, Hernandez greeted him by saying, "Hi Ray."
Officer Bonillas approached Christie inside the Costco and said that he needed to talk to him about the incident where he " 'rammed a woman three times.' " Although Christie told Bonillas that there had been no "ramming" and only one contact where the " 'bumpers had only touched and there was no damage,' " he was escorted out of the store. Once outside, Officers Bonillas and Coronel spoke in Spanish with Hernandez.
Officer Bonillas then tried to get Ray Armistead, who was a passenger in Christie's vehicle, to say that Christie had " 'rammed her three times.' " Armistead steadfastly denied that fact, telling Officer Bonillas that "you kept [sic] trying tell me that all the time." " 'I told you, we touched bumpers once.' "
Officer Bonillas then took photographs of the vehicles. The photographs later disappeared before Christie's criminal trial commenced.
Officer Coronel told Christie to " 'sit down and shut up.' " After Officers Bonillas and Coronel conferred, Officer Coronel came back and told Christie, " 'You've got damage on the front of your truck.' " When Christie explained that the only damage was to a license plate cover that had been there since he purchased the truck, Officers Bonillas and Coronel went back to look at the vehicle. They agreed that it was old damage.
Hernandez claimed her vehicle was rammed three times with increasing intensity each time. However, she admitted that no damage was done to her vehicle. At most, there may have been some dust disturbance to her vehicle. Her nephew, who was a passenger in the truck at the time, never felt any impact, let alone Christie's ramming Hernandez's vehicle three times, each time with increasing in intensity. Hernandez's niece, who was nearby moving a shopping cart, never heard or saw any impact or ramming. These witnesses were not interviewed at the time, but only in preparation for the criminal trial. Hernandez and her passengers were not injured. She refused medical care at the scene and she never went to see a doctor. Hernandez did not take her nephew to see a doctor.
Officer Bonillas, Officer Coronel, and Hernandez spoke amongst each other in a group, and Officer Coronel came back and told Christie he would " 'probably be arrested for assault with a deadly weapon.' " Although Christie never left the parking lot, the incident was reported as a possible " 'hit and run collision.' " A meeting was held by the officers and two sergeants who later showed up. After that, Christie was handcuffed and placed in the back of a patrol unit.
Although Officer Bonillas was first to arrive, he did not arrest Christie because he is a traffic officer. If Officer Bonillas had arrested Christie, the matter would have been handled as a traffic accident. The decision was made to have Officer Coronel make the arrest because he could handle assault cases. According to Officer Coronel, Hernandez told them to arrest Christie stating, " 'I want him arrested for endangering my safety, my children's safety, nieces and nephews.' " Hernandez claimed she never asked the officers to arrest Christie. However, she admitted she told them that she wanted to " 'make sure something is done to teach him not to go pushing people around.' "
Officer Coronel's report reflected the fact Hernandez told him that Christie "was not able to pull his vehicle around hers . . . and he lightly struck her vehicle." His report further stated, contrary to Christie's version of events, that Christie admitted that in addition to hitting her truck once, he hit her vehicle "two more times. He said he was attempting to get her to move her vehicle out of his way."
After Christie's arrest, he was transported to the sheriff's department for processing. When he arrived, Christie was read his Miranda rights. He was informed that he would probably be released in 30 minutes on bond. He was strip searched, given a jail jump suit, shackled in leg irons and taken to a maximum security cell with no lights. Because the charge was a felony with a $20,000 dollar bond, Christie had to spend the Thanksgiving weekend in jail. He was told that he could make a phone call. However, he did not have access to phone numbers, which were in his wallet.
Miranda v. Arizona (1966) 384 U.S. 436.
Christie is a Canadian citizen. The Canadian consulate was not contacted. Had defendants done so, an attorney would have been contacted by the consulate. Christie was held in jail between November 23, 1999, and November 29, 1999.
At Christie's arraignment, the charges were changed to disturbing the peace, a misdemeanor. When Christie refused to plea bargain to that charge and chose instead to go to trial, he was tried for assault with a deadly weapon, assault and battery, and reckless driving in a parking lot. Trial occurred in January 2000. The jury acquitted Christie of all charges after approximately one hour of deliberations.
B. The Instant Action
In December 2006 Christie filed a complaint against El Centro and El Centro Police Officers Bonillas and Coronel. He alleged causes of action for assault and battery, false arrest, false imprisonment, malicious prosecution, conspiracy, violation of his civil rights under title 42 United States Code section 1983, negligence, negligent supervision and training, and infliction of emotional distress.
All further statutory references are to title 42 of the United States Code unless otherwise specified.
In January 2007 defendants filed a motion for summary judgment or, in the alternative, summary adjudication of issues, arguing (1) Officers Bonillas and Coronel had probable cause to arrest Christie; (2) public employees are immune from claims for malicious prosecution; (3) Christie's claim for violation of his fifth amendment rights was waived; (4) Christie could not state a claim for violation of his first amendment rights because he was given an opportunity to tell his side of the story and did so; (5) the first amendment claim was barred by the statute of limitations; and (6) the defendant officers were entitled to qualified immunity.
Christie opposed the motion, asserting (1) he demonstrated a prima facie case for violation of his civil rights; (2) the officers did not have probable cause to arrest him for felony assault with a deadly weapon; (3) triable issues of material fact existed as to the malicious prosecution claim; (4) the officers were not entitled to qualified immunity on his civil rights claim under section 1983; and (5) triable issues of fact existed as to the remaining causes of action.
In April 2007 the court granted defendants' motion for summary judgment. In doing so, the court found that, even sustaining Christie's objections to hearsay statements in the police officers' reports, "[t]he factual record indicates that a reasonable officer would have had probable cause [based] on the statements of the victim and other circumstances entirely apart from her self identification as the wife of an El Centro police officer. [¶] In so far as the existence of probable cause implicates various California and Federal immunities pertinent to each and all of the causes of action, and the court finds no triable issues of fact or inferences thereof to challenge probable cause[,] [s]ummary judgment is granted."
In support of the trial court's ruling, defendants cite to the court's previous grant of a nonsuit in the first trial in this matter. However, that order is irrelevant as the judgment was set aside following the grant of a new trial because the judge was disqualified to act when ruling on that motion. We upheld that grant of a new trial in our previous decision in this matter, Christie v. City of El Centro (2006) 135 Cal.App.4th 767. Accordingly, it is irrelevant to a determination of this appeal.
DISCUSSION
I. STANDARD OF REVIEW
A defendant moving for summary judgment must show either (1) one or more elements of the plaintiff's cause of action cannot be established or (2) there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850-851 (Atlantic Richfield); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) When the motion is based on the assertion of an affirmative defense, the defendant has the initial burden to demonstrate that undisputed facts support each element of the affirmative defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) "The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden does 'the burden shift[ ] to plaintiff to show an issue of fact concerning at least one element of the defense.' " (Id. at pp. 289-290.)
The summary judgment procedure determines whether there is evidence requiring the fact-weighing procedure of a trial. (Guz, supra, 24 Cal.4th at pp. 334, 335, fn. 7 ["[A]s to each count of [the] complaint, the issue on appellate review is simply whether, and to what extent, the evidence submitted for and against the motion for summary judgment discloses issues warranting a trial"].) Thus, " 'the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.' [Citation.] The trial judge determines whether triable issues of fact exist by reviewing the affidavits and evidence before him or her and the reasonable inferences which may be drawn from those facts." (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 131.) A material issue of fact may not be resolved based on inferences if contradicted by other inferences or evidence. (Atlantic Richfield, supra, 25 Cal.4th at p. 856.)
On appeal, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (Guz, supra, 24 Cal.4th at p. 334; Southern Cal. Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, 723.) We liberally construe the evidence in support of Christie as the opposing party (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142) and assess whether the evidence would, if credited, permit the trier of fact to find in his favor under the applicable legal standards. (Aguilar, supra, 25 Cal.4th at p. 850.) We do not weigh the evidence and inferences, but merely determine whether a reasonable trier of fact could find in Christie's favor, and we must deny the motion when there is some evidence that, if believed, would support judgment in his favor. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.)
II. ANALYSIS
A. Probable Cause To Arrest Christie
False arrest occurs when there is an unlawful and unprivileged violation of the liberty of another (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 757) and is actionable when there is an arrest without process followed by imprisonment and damages. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 592.) Conversely, there is no liability for false arrest (with or without a warrant) if the police had "probable cause to believe that the person to be arrested ha[d] committed a felony, whether or not a felony, in fact, ha[d] been committed." (Pen. Code, §§ 836, subd. (a)(3), 847, subd. (b)(1).) The same is true with regard to Christie's federal claim under section 1983. (Dubner v. City & County of San Francisco (9th Cir.2001) 266 F.3d 959, 964 [claims for false arrest and imprisonment are cognizable under the federal statute provided they were made "without probable cause or other justification"].)
Probable cause to arrest exists when the facts known to the arresting officer at the time of the arrest "would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime." (People v. Price (1991) 1 Cal.4th 324, 410; Hamilton v. City of San Diego (1990) 217 Cal.App.3d 838, 844.) The federal standard is the same. (Orin v. Barclay (9th Cir.2001) 272 F.3d 1207, 1218 [probable cause exists if, at the time of arrest, the facts and circumstances known to the officer were sufficient to warrant a prudent person to believe the suspect had violated a criminal law].)
The arresting officer is not required to conduct a trial before determining to make the arrest. (Linn v. Garcia (8th Cir. 1976) 531 F.2d. 855, 861; Piazza v. Mayne (E.D.La. 1998) 23 F.Supp.2d 658.) However, a police officer may not ignore evidence of the existence of an affirmative defense. (Estate of Dietrich v. Burrows (6th Cir. 1999) 167 F.3d. 1007, 1012.) While the arresting officer may not have a duty to find exculpatory evidence or conduct a trial at the scene, he or she is not, however, free to disregard exculpatory evidence.
For example, in Fuller v. M.G. Jewelry (9th Cir. 1991) 950 F.2d 1437 (Fuller), the officers arrested the plaintiffs after they were accused by a jeweler of stealing a ring, when no one had seen them take or touch the ring. The officers argued that a reasonable police officer need not have made any further inquiry before arresting the plaintiffs because officers are entitled to rely on detailed reports by honest citizens in determining whether probable cause to arrest exists. However, the court declined to adopt the officers' arguments that merely because citizen witnesses are presumptively reliable, the officers had no duty to examine further the basis of the witnesses' knowledge or talk with any other witnesses. In so holding, the Fuller court stated: "We agree with the California Supreme Court that the general proposition that private citizen witnesses or crime victims are presumed reliable does not 'dispense with the requirement that the informant . . . furnish underlying facts sufficiently detailed to cause a reasonable person to believe a crime had been committed and the named suspect was the perpetrator.' [Citation.]" (Id. at p. 1444, quoting People v. Ramey (1976) 16 Cal.3d 263, 269.) Thus, in an action for false arrest, the Court of Appeal in Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1044-1047 (Gillan) concluded the defendants did not have probable cause to arrest the plaintiff high school basketball coach for alleged molestation with regard to a female student where some of the girl's accusations were generalized and not specific as to time, date, or other details, including claims of touching in a gym, and other accusations concerning more specific events either lacked sufficient detail or were inconsistent in the details provided, and the school principal told police that she and other coaches were skeptical of girl's claims, given her animosity toward the coach.
Here, Christie's evidence, if believed by a trier of fact, was sufficient to raise a triable issue of fact on the issue of whether the arresting officers had probable cause to arrest him for assault with a deadly weapon. Based upon the evidence submitted by Christie, a jury could conclude that no reasonable person would believe Christie committed that crime.
Penal Code section 245, subdivision (a)(1) penalizes "[a]ny person who commits an assault upon the person of another with a deadly weapon . . . ." (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 40-47, pp. 663-672.) Penal Code section 240 defines an assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." The meaning of that language has been addressed by our Supreme Court on multiple occasions. People v. Williams (2001) 26 Cal.4th 779 (Williams) is instructive.
In Williams, supra, 26 Cal.4th 779, the defendant was convicted of assault with a firearm based on evidence that he fired at the victim's truck while the victim was crouched behind it. The jury was instructed that the defendant was guilty of assault "only if he 'willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force being applied to the person of another.' " (Id. at p. 783.) The Court of Appeal reversed on the ground the instruction could have led to a finding of guilt based on negligence. The Supreme Court reversed the Court of Appeal, adding a knowledge requirement, but finding that the absence of an instruction on knowledge was harmless error: "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)
"[W]hen warranted by the facts, an automobile may be used as a 'deadly weapon,' or an 'instrument,' or a 'force likely to produce bodily injury' as those terms are used in Penal Code section 245, subdivision (a)." (People v. Cotton (1980) 113 Cal.App.3d 294, 305 (Cotton).) Moreover, "[o]ne may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar).)
The California Supreme Court has defined "deadly weapon" as " 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' " (Aguilar, supra, 16 Cal.4th at pp. 1028-1029, quoting In re Jose R. (1982) 137 Cal.App.3d 269, 275-276, 898.) "Some instruments, e.g., firearms used as such, are obviously or 'inherently' deadly weapons. But the question is often one of fact . . . determined by the manner of use." (1 Witkin & Epstein, supra, Crimes Against the Person, § 46 at p. 669; see also CALJIC No. 9.02.) Some objects, while not deadly per se, may be used in a manner likely to produce death or great bodily injury. "In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (Aguilar, supra, 16 Cal.4th at p. 1029.) "[T]he jury's decisionmaking process in an aggravated assault case under [Penal Code] section 245, subdivision (a)(1), is functionally identical regardless of whether, in the particular case, the defendant employed a weapon alleged to be deadly as used or employed force likely to produce great bodily injury; in either instance, the decision turns on the nature of the force used . . . . '[A]ll aggravated assaults are ultimately determined based on the force likely to be applied against a person.' [Citation.]" (Aguilar, supra, at p. 1035.)
Moreover, mere reckless operation of a vehicle does not constitute an assault with a deadly weapon, unless the reckless driver deliberately tries to initiate contact with another person or vehicle. (Cotton, supra, 113 Cal.App.3d at p. 307; People v. Jones (1981) 123 Cal.App.3d 83, 95-97.) Further, the question of whether an item that is not inherently deadly, such as an automobile, is dangerous in the manner it is used, is a question of fact. (See People v. McCoy (1944) 25 Cal.2d 177, 188, 190 [knife, although not inherently deadly weapon, was deadly weapon as used]; People v. Brookins (1989) 215 Cal.App.3d 1297, 1306 [unloaded gun not used as bludgeon not deadly weapon].)
In this case it is undisputed that immediately prior to the contact(s) between Christie and Hernandez's cars, both Christie and Hernandez were stopped in a parking lot, with Hernandez in front. After the incident, there was no visible damage to either Hernandez's or Christie's vehicle. Thus, any contact that was made was accomplished at a very low rate of speed. Hernandez suffered no injuries from the incident. Her nephew, who was in the car, did not feel any contact. No other witnesses saw or hear any contact. Therefore, there is a triable issue of fact as to whether any reasonable police officer would believe that the crime of assault with a deadly weapon was committed as a jury could conclude that Christie did not use his vehicle "in such a fashion as to be capable of causing death or great bodily injury." (People v. Brookins, supra, 215 Cal.App.3d at p. 1307.)
Further, as explained, ante, while the police officers were not required to conduct a minitrial at the scene, they could not ignore exculpatory evidence in determining if they had probable cause to arrest Christie. The evidence showed that, contrary to Hernandez's claim that Christie "rammed" her vehicle three times, with increasing force, she suffered no injuries, and there was no damage to either car. The officers that responded to Hernandez's call could not ignore evidence that showed that Christie did not commit an assault "by means of force likely to produce great bodily injury." (CALJIC No. 9.02.) The undisputed evidence was sufficient for a jury to conclude that the contact between the vehicles was so slight and insignificant that it was incapable of producing great bodily injury to Hernandez. Assault with a deadly weapon requires that " 'the force used was such as would be likely to cause" great bodily injury.' " (People v. Duke (1985) 174 Cal.App.3d 296, 302, italics omitted.) The focus is on the force actually exerted by the defendant, not the amount of force that could have been used. (Id. at p. 303.) Whether Christie's vehicle as used would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied. (People v. Kinman (1955) 134 Cal.App.2d 419, 422.) Further, "the results of an assault are often highly probative of the amount of force used . . . ." (People v. Muir (1966) 244 Cal.App.2d 598, 604; People v. McDaniel (2008) 159 Cal.App.4th 736, 748.).) "[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.]" (People v. Muir, supra, at p. 604.)
Further, a jury could conclude there was no evidence upon which to base an arrest for felony assault with a deadly weapon based not only upon Christie's statements, but solely upon the lack of any physical evidence that Christie "rammed" Hernandez's car three times, with increasing intensity. As the arresting officers acknowledged at the scene, there was no damage to either vehicle. Thus, a jury could find that the officers' actions were objectively unreasonable and without probable cause based upon this fact alone. (People v. Muir, supra, 244 Cal.App.2d at p. 604; People v. McDaniel, supra, 159 Cal.App.4th 736, 748.).)
In support of their contention that the arresting officers had probable cause to arrest Christie for assault with a deadly weapon, defendants place great emphasis on the statements Christie's passengers, Armistead, and Bobby Camp, allegedly gave to Officer Bonillas. According to Officer Bonillas's report, Camp told him that Christie "bumped her a couple of times." Armistead at first "left out the incident about hitting the vehicle." When questioned further, Armistead stated "Christie may of [sic]bump[ed] the vehicle, but he was sure it was an accident."
However, these alleged statements do not compel a finding of probable cause as a matter of law. First, defendants' contention presupposes the police report was an accurate description of the witnesses' statements. Christie and Armistead vehemently deny that is what Camp and Armistead told Officer Bonillas. Rather, Armistead stated Officer Bonillas attempted to coerce him into stating Christie's actions were intentional. Camp was never deposed. Further, according to Officer Coronel, after he confronted Christie with those witnesses' alleged statements, Christie himself admitted striking her car three times "attempting to get her to move her vehicle out of his way." Christie denies striking her vehicle more than once and claims it was accidental. As we have explained, ante, we must construe the evidence in the light most favorable to Christie's position, which is that the arresting officers' reports were false and manufactured in a manner to support the arrest after the fact. There is sufficient evidence based upon Hernandez's statements, the failure of the officers to interview the minor witnesses at the scene, and the missing photographs, for a jury to disbelieve the statements in the officers' reports. Willfully false statements used to support an arrest may vitiate any probable cause. (Lee v. Gregory (9th Cir. 2004) 363 F.3d 931, 936.)
Second, the reports do nothing to obviate the triable issue of fact that exists as to whether Christie struck Hernandez's with sufficient force to allow a reasonable police officer to believe that it could have caused death or serious bodily injury.
Third, the court, in granting defendants' motion for summary judgment, assumed that these statements in the police reports were inadmissible hearsay. Defendants do not claim on appeal that the reports were admissible under some exception to the hearsay rule. Accordingly, we need not consider them in resolving this appeal.
Hernandez's request that Christie be arrested also supports the conclusion there is a triable issue of fact on probable cause. A jury could infer from that evidence the arresting officers left the decision to her whether Christie should be arrested, and therefore did not determine for themselves whether there was probable cause to arrest Christie.
Finally, based upon the postarrest events, a jury could conclude the arresting officers were acting in bad faith or in a biased manner toward Christie. He was strip searched, placed in a maximum security cell, and shackled in leg irons. A jury could find these actions were taken not because the police officers believed they had probable cause to arrest Christie, but because they were punishing him for making contact with a truck driven by the wife of an El Centro police officer.
B. Qualified Immunity
The individual defendants assert they are entitled to summary adjudication of Christie's federal civil rights claim because they are entitled to qualified immunity as (1) they had probable cause to arrest Christie; and (2) their actions, whether or not they had probable cause to arrest Christie, were reasonable in light of the facts available to them at the scene of the incident. This contention is unavailing.
Under Saucier v. Katz (2001) 533 U.S. 194, we must first determine, as to Christie's section 1983 claim, "whether the facts, taken in the light most favorable to the plaintiff, 'show the officer's conduct violated a constitutional right[.]' " (Stevens v. Rose (9th Cir. 2002) 298 F.3d 880, 883.) "Second, if the officers violated a constitutional right, we inquire whether that right was 'clearly established' when viewed in the context of the case." (Ganwich v. Knapp (9th Cir. 2003) 319 F.3d 1115, 1119.) The second step turns on whether the officers "could have reasonably believed [based on clearly established law at the time they acted] that [their] conduct did not violate the Constitution." (Adams v. Speers (9th Cir. 2007) 473 F.3d 989, 993.) In making this inquiry, we must accept Christie's version of events as true. (Id. at pp. 990-991.) Moreover, "[w]here the facts are disputed, their resolution and determinations of credibility 'are manifestly the province of a jury.' " (Wall v. County of Orange (9th Cir. 2004) 364 F.3d 1107, 1110.)
Here, Christie has established a violation of his Fourth Amendment rights because the Fourth Amendment requires probable cause before an arrest may be made. Viewing Christie's evidence in the light most favorable to him, as we must, he has established a triable issue of fact as to whether the defendant officers had probable cause to arrest him.
As for the second step, taking the evidence in the light most favorable to Christie, an objectively reasonable officer would not have ignored the exculpatory evidence showing at most that this was a traffic accident, not a felony assault with a deadly weapon. Further, because there are factual disputes concerning whether the officers in truth relied upon the statements of the purported victim as they claim or conspired with her to wrongfully arrest Christie, as he claims, summary adjudication of Christie's section 1983 claim on the basis of qualified immunity is not proper. (Mendocino Environmental Center v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1292-1295.)
C. Christie's Remaining Claims
1. Malicious prosecution
Defendants assert that Christie's malicious prosecution claim is without merit as (1) public employees are immune from claims for malicious prosecution even if their acts were malicious and without probable cause, and (2) an arrestee may not recover damages for false imprisonment and false arrest incurred after his arraignment on criminal charges. On appeal, Christie does not respond to this assertion. Accordingly, we shall consider Christie to have conceded this defense and uphold the grant of defendants' motion as to the cause of action for malicious prosecution. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315 (San Diego Watercrafts).)
2. Section 1983 First Amendment claim
Christie claims that, in addition to violating his Fourth Amendment rights, defendants arrested him in retaliation of his exercise of his First Amendment rights in attempting to tell the true version of events. Defendants assert, as they did below, that this claim fails because (1) the facts show he was allowed to give his version of events; and (2) there is no legal authority for the proposition that a violation of First Amendment rights occurs if a police officer refuses to believe a suspect's side of the story. We conclude that factually and legally Christie's First Amendment claim is without merit and we must uphold the dismissal of this cause of action.
Although Christie makes the bare allegation in his opening brief that defendants retaliated against him for telling the arresting officers his version of events, Christie cites no evidence to support this assertion. Further, we have been unable to locate any authority to support such a claim. Accordingly, this cause of action fails.
3. Claimed violations of Fifth, Eighth and Fourteenth Amendments
Although Christie's complaint alleged violations of the Fifth, Eighth and Fourteenth Amendments in his section 1983 claim, he fails to address these causes of action in his opening brief, or respond to defendants' assertion they are without merit in his reply brief. Accordingly, we shall consider Christie to have conceded these causes of action have no merit. (San Diego Watercrafts, supra, 102 Cal.App.4th at p. 315.)
4. Christie's other state law causes of action
In their moving papers defendants did not separately address Christie's claims for assault, battery, negligence, negligence per se, negligent supervision and training, and negligent infliction of emotional distress, nor do they do so on appeal. Rather, defendants relied upon the alleged probable cause to arrest Christie in order to summarily adjudicate these claims. Accordingly, as we have concluded a triable issue of fact exists on the issue of probable cause, the court erred in dismissing these claims as well.
DISPOSITION
The judgment is reversed as to all causes of action except for the malicious prosecution claim and claimed violations of Christie's First, Fifth, Eighth and Fourteenth Amendment rights, which are affirmed. Each side shall bear their own costs on appeal.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.