Opinion
C084760
07-16-2018
JAMES DONALD COLLIS, Plaintiff and Appellant, v. COUNTY OF MODOC et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CU16058)
James Donald Collis was arrested by Matt Mandolfo, a police officer with the City of Alturas, and Dillion Scoma, a deputy sheriff with the County of Modoc, for public intoxication and resisting an officer. Collis sued the City, the County, Mandolfo, and Scoma for battery and personal injury arising out of the officers' alleged use of excessive force during his arrest. Collis appeals from the trial court's order granting the County and Scoma's motion for summary judgment. He argues the trial court erred in denying his request to take judicial notice of a police report on grounds the police report was hearsay and, if the trial court had taken judicial notice of that report, it would have found a triable issue of fact. He further argues the trial court erred in granting summary judgment because his separate statement was defective. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Collis alleged he suffered a broken right wrist due to Mandolfo's and Scoma's use of excessive force during his arrest and that he was forced to stay in the police car and jail for an extended period of time without any medical care or treatment. He also claimed he "suffered extreme mental anguish and physical pain and a permanent disability" associated with the incident, and requested punitive damages. (Capitalization omitted.) After taking Collis's deposition, the County and Scoma filed a motion for summary judgment as to "the cause of action for assault and battery" and Collis's claim for punitive damages.
I
The Motion
The County and Scoma argued Collis could not show an essential element of his cause of action -- that Scoma used unreasonable and excessive force -- and "no evidence support[ed] a claim for punitive damages." They relied on Scoma's declaration submitted in support of the motion and excerpts from Collis's deposition.
A
Scoma's Declaration
Scoma said Collis was extremely intoxicated on the night of his arrest. When Mandolfo tried to handcuff Collis, he pulled away. Scoma went to assist Mandolfo, taking a hold of Collis's right arm and advising him to stop resisting. After Mandolfo handcuffed Collis, they walked Collis over to Mandolfo's car. Collis resisted getting into Mandolfo's car, whereupon Scoma entered the backseat passenger side door and physically pulled Collis into the car by the upper part of his jacket. Scoma had no further physical contact with Collis.
While Collis was waiting in the police car, he asked Scoma to loosen his handcuffs. Scoma responded that Mandolfo "was coming out of the Elks Lodge and would address his concerns." Scoma "at no time adjusted or tightened the handcuffs which were placed on [Collis's] wrists" by Mandolfo. After Mandolfo returned to the car, Scoma had no further involvement with Collis. Mandolfo transported Collis to jail.
B
Collis's Deposition Testimony
The record on appeal contains only the portions of Collis's deposition testimony submitted in support of the County and Scoma's motion for summary judgment.
In his deposition, Collis testified he did not resist the officers' efforts to handcuff him and they did not use any force to overcome his bodily movements. "No unreasonable force was used to get [his] hands behind [him]" and, when the handcuffs were first placed on his wrists, there was no force applied other than "cinching them down."
Collis said that, after the handcuffs were put on, he was "slammed" onto the hood of the police car and then someone tightened his handcuffs, at which time the handcuffs were too tight. Collis did not know which officer was behind him as they walked toward the police car or who tightened the handcuffs. One of the officers pulled him into the police car because Collis had difficulty bending his knees. When he was being pulled into the car, Collis responded, "[o]w. You're ripping my [clothing]." When asked whether he thought he sustained any type of injury from being pulled into the car, Collis said he did not know.
After he was situated in the car, Collis asked Scoma: "Can you loosen these handcuffs?" Scoma responded: "You'll have to wait until Matt Mandolfo gets back. Then I'll tell him, I'll let him know that they need to be released a little bit." Collis believed Scoma should have loosened the handcuffs (although he did not know if Scoma had the ability to do so), or should have "went and got Mandolfo," leaving Collis in the car alone. He did not see Scoma again after Mandolfo returned to the car and took him to jail. Collis did not tell anyone at the jail about his injury.
When asked how he injured his right wrist, Collis said the injury occurred when someone tightened the handcuffs.
II
The Opposition
Collis asked the court to take judicial notice of "the fact that the defendant County of Modoc operates the jail in which Mr. Collis was jailed and confined and in which he received no medical treatment for his fractured wrist" and the "records for Superior Court of California County of Modoc case number M-15-140." Collis further attached a police report to his opposition that was purportedly authored by Scoma and formed part of the record in the associated criminal case. Collis argued the report showed Scoma's action constituted unreasonable and excessive force resulting in his injuries. The remainder of his opposition recited pertinent legal authorities, without any argument.
In his response to the separate statement of undisputed facts, Collis asserted the police report showed Scoma detained him with excessive force to his right wrist and forcefully pulled him into the police car. He further asserted his deposition testimony (the same testimony relied upon by the County and Scoma) showed disputed facts as to: Scoma "repeatedly slamming [Collis] onto the Patrol Vehicle hood and tightening the handcuffs," Scoma refusing to loosen the handcuffs even though Collis complained they were too tight, and that he received no medical care while incarcerated "in the Modoc County jail."
III
The Reply
The County and Scoma argued Collis's opposition failed to comply with the requirements of Code of Civil Procedure section 437c and California Rules of Court, rule 3.1350. They further objected to Collis's reliance on the police report attached to his opposition on hearsay grounds, and argued the citations to his deposition testimony did not support the "disputed facts" identified in his response to the separate statement.
IV
The Ruling
The trial court granted summary judgment on both grounds: (1) excessive force; and (2) punitive damages. The trial judge sustained the objection to the police report attached to Collis's opposition, stating: "the report itself is hearsay, and there's not been any foundational basis for the admissibility of a law enforcement report in this particular case. None was provided in any of the pleadings that I have seen, and accordingly, an objection on the basis of hearsay at this stage and for purposes of this motion, is granted. And I have not read, nor will I consider the report that was attached." The trial judge observed that Collis failed to comply with the requirements of Code of Civil Procedure section 473c and California Rules of Court, rule 3.1350 in responding to the statement of undisputed facts, and then discussed various statements made by Collis during his deposition. The trial judge concluded the evidence showed no triable issue of fact "either as to the application of excessive force, or the engagement in egregious conduct, which would support an award of punitive damages."
Collis does not challenge the trial court's order on the punitive damages issue.
DISCUSSION
I
The Trial Court Properly Denied The Request For Judicial Notice
Collis states the trial court erred in denying his request for judicial notice of "the official court records of the Superior Court of California for Modoc County Criminal Case Number M 15-140 and the official investigating report by Deputy Scoma depicting the use of excessive force as submitted by the Modoc County Sheriff's Office for that criminal case." Collis's argument, however, focuses solely on the police report, which he asserts was admissible under the prior inconsistent statements exception to the hearsay rule. We review the trial court's denial of the judicial notice request for abuse of discretion. (CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 520; Willis v. State of California (1994) 22 Cal.App.4th 287, 291.)
Collis does not assert the trial court erred in denying his request for judicial notice as to "the fact that the defendant County of Modoc operates the jail in which Mr. Collis was jailed and confined and in which he received no medical treatment for his fractured wrist."
We do not address Collis's fleeting mention of "the official court records of the Superior Court of California for Modoc County Criminal Case Number M 15-140" because Collis presents no argument in that regard. " 'Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.' " (Estate of Randall (1924) 194 Cal. 725, 728-729.)
The trial court properly declined to take judicial notice of the police report. The truth or accuracy of statements in a police report are reasonably subject to dispute and not appropriate for judicial notice. (People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Thus, it would have been improper for the trial court to take judicial notice of the police report. Further, the police report was not authenticated by the purported author, Scoma, or a custodian of records for the police department. (Evid. Code, § 1401.) And, the police report was inadmissible hearsay. (Evid. Code, § 1200.) While Collis cites to Evidence Code sections 1200 and 1235, he provides no argument demonstrating how these provisions mandate a contrary result. (Estate of Randall, supra, 194 Cal. at pp. 728-729 [contentions without argument are deemed without foundation].)
II
Summary Judgment Was Appropriate
Collis argues the trial court improperly granted the motion for summary judgment based on Collis's failure to comply with Code of Civil Procedure section 437c and California Rules of Court, rule 3.1350. We note that, although the trial court noted Collis's failure to comply with those requirements, the court granted the motion for summary judgment on the merits. Indeed, the trial judge identified testimony from Collis's deposition in analyzing whether a triable issue of fact existed. The trial judge then granted the motion after expressly finding no triable issue of fact existed as to the element of excessive force. To the extent Collis challenges the trial court's finding of no triable issue of fact, it is unavailing.
We review a trial court's grant of summary judgment de novo. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 388-389.) "In performing our de novo review, we must view the evidence in a light favorable to [the] plaintiff as the losing party [citation], liberally construing [the plaintiff's] evidentiary submission while strictly scrutinizing [the] defendant['s] own showing, and resolving any evidentiary doubts or ambiguities in [the] plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)
Summary judgment is proper when "all the papers submitted show that there is no triable issue as to any material fact and that [defendant] is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets the burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made the required showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853.)
To assert a battery cause of action against an officer performing law enforcement duties, a plaintiff must prove that the officer used unreasonable force. (Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1273.) A claim of excessive force is analyzed under the federal Fourth Amendment framework set forth by the United States Supreme Court in Graham v. Connor (1989) 490 U.S. 386 . That analysis "requires a careful balancing of ' "the nature and quality of the intrusion [on the person's liberty compared to]" ' . . . the countervailing governmental interests at stake" to determine whether the force used was objectively reasonable under the circumstances. (Id. at p. 396 .) A similar test is required under Penal Code section 835a, which provides: "Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest . . . to overcome resistance." The test of reasonableness is objective, as viewed from the vantage point of a reasonable officer on the scene. (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 343.)
Here, the only admissible evidence before the trial court was the portions of Collis's deposition transcript and Scoma's declaration submitted in support of the motion for summary judgment. Collis introduced no admissible evidence in opposition. The evidence shows Scoma made physical contact with Collis on two occasions: (1) when the handcuffs were first put on Collis by Mandolfo; and (2) when he pulled Collis into the backseat of the car. The only other contact between Scoma and Collis was verbal, when Collis asked Scoma to loosen the handcuffs.
There is no admissible evidence in the record indicating that Scoma "slammed" Collis onto the hood of the police car and tightened his handcuffs. Collis did not know which officer was behind him as they walked toward the police car or who tightened the handcuffs. In his declaration, Scoma declared he "at no time adjusted or tightened the handcuffs which were placed on [Collis's] wrists" by Mandolfo. --------
Collis testified there was no force used when the handcuffs were initially put on his wrists except to "cinch" them. With regard to the second physical contact, when Scoma pulled Collis into the car by his clothing, Collis testified he did not know whether he sustained an injury and his statement to Scoma only indicated concern for his clothing. There is no evidence that Scoma did anything other than use the force necessary to assist in Collis's arrest and to get him into the car, and there are no facts showing that he knew or should have known that Collis's right wrist was injured during the arrest.
Although it is true that an officer's refusal to loosen handcuffs may support an excessive force claim (see Palmer v. Sanderson (9th Cir. 1993) 9 F.3d 1433, 1435-1436), not all refusals to loosen handcuffs are objectively unreasonable (Howard v. Kansas City Police Dept. (8th Cir. 2009) 570 F.3d 984, 999, fn. 14 [failure to loosen handcuffs in response to complaint "does not necessarily violate the Fourth Amendment"]). There must have been some objective indication of injury or pain observable by the law enforcement officer, or some statement of injury or pain to the officer. (Palmer, at p. 1436 [arrestee complained of pain and had bruising]; LaLonde v. County of Riverside (2000) 204 F.3d 947, 952 [arrestee said the handcuffs were too tight and were cutting off his circulation].)
Collis's mere request that the handcuffs be loosened is insufficient to demonstrate Scoma's failure to loosen the handcuffs was objectively unreasonable. Collis presented no evidence that he advised Scoma that he was in pain or that the handcuffs were causing injury, or that there was any objective indication of injury or pain observable by Scoma. Further, the evidence does not tend to show that Scoma ignored Collis's request to loosen the handcuffs; Scoma responded that the request was properly directed at Mandolfo, who was "coming out of the Elks Lodge and would address his concerns." Collis presented no evidence that Scoma had the ability to loosen the handcuffs on his own.
The County and Scoma met their burden of showing that Collis could not establish a necessary element of his cause of action -- the use of unreasonable force -- and that Collis could not reasonably obtain the necessary evidence to establish that element of his cause of action. The burden then shifted to Collis to provide admissible evidence demonstrating the existence of triable issues of material fact. Collis failed to meet that burden. Summary judgment was, accordingly, properly granted.
DISPOSITION
The judgment is affirmed. The County and Scoma shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Hoch, J.