Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 137046
SIMS, Acting P. J.In this judgment roll appeal, plaintiff Anna M. Contreras contends the trial court erred in granting defendant’s motion for nonsuit during the jury trial of her complaint for false arrest, battery, and intentional infliction of emotional distress.
Finding no error, we shall affirm the order.
BACKGROUND
There is no reporter’s transcript of the jury trial in this matter. From the limited record on appeal, it appears that this action had its genesis in plaintiff’s arrest by state parks officers for child endangerment (Pen. Code, § 273a) and misdemeanor riding in an open truck bed (Veh. Code, § 23116, subd. (b)) after they observed her riding in the back of a pickup truck while holding her young son in her arms.
After the charges against her were dismissed, plaintiff brought this action against the State, one named state parks officer, and one officer identified only by his badge number. The operative complaint alleged the named officer acted unreasonably and without probable cause when he wrongfully arrested plaintiff, thereby violating her federal civil rights (42 U.S.C. § 1983 (section 1983)). It further alleged the State and named officer caused plaintiff to suffer lost wages and damages from battery (including “humiliating body searches”) and intentional infliction of emotional distress.
The matter was tried to a jury. Prior to trial, the parties stipulated that the jury would first determine the issue of whether there existed probable cause for plaintiff’s arrest.
Anticipating that plaintiff would seek to introduce evidence at trial that she had endured inappropriate searches while in custody, defendants successfully moved in limine to exclude evidence of damages arising from searches that may have occurred after the arrest as beyond the scope of her original government tort claim.
Plaintiff was the only witness during her case-in-chief. At the conclusion of plaintiff’s evidence, defendants moved for a nonsuit pursuant to California Code of Civil Procedure section 581c, subdivision (a).
The court granted the motion. Its written order states “[p]laintiff failed to prove an essential element of the issue that was initially before the jury. Specifically, the plaintiff failed to present evidence that the arrest was unreasonable. An unreasonable arrest occurs when an arrest is made without probable cause. Probable cause exists when, under all of the circumstances known to the officer at the time, an objectively reasonable police officer would conclude that there is a fair probability that the plaintiff has committed or was committing a crime. In argument, Plaintiff maintained she did not need to present evidence that the arrest was made without probable cause as the burden had shifted to the defendant to prove the arrest was made without [sic] probable cause. Plaintiff failed to elicit any testimony from any police officer to establish probable cause or lack thereof.”
DISCUSSION
I. Standards of Review
On appeal, plaintiff chiefly contends the court erred in assigning to her the burden of adducing evidence that the officer had arrested her without probable cause.
We independently review an order granting a nonsuit, evaluating the evidence in the light most favorable to the plaintiff and resolving all presumptions, inferences and doubts in his or her favor. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838–839; Margolin v. Shemaria (2000) 85 Cal.App.4th 891, 895; see generally People v. Ault (2004) 33 Cal.4th 1250, 1266 [“[A]ppellate review of trial court orders granting nonsuits, directed verdicts, or judgments notwithstanding the verdict—orders that finally terminate claims or lawsuits—is quite strict. All inferences and presumptions are against such orders.”].) “Although a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is ‘some substance to plaintiff’s evidence upon which reasonable minds could differ . . . .’” (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.) In other words, “[i]f there is substantial evidence to support [the plaintiff’s] claim, and if the state of the law also supports that claim, we must reverse the judgment.” (Margolin v. Shemaria, supra, 85 Cal.App.4th at p. 895.)
But it is also the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Thus, an appellant must not present just an analysis of the facts and legal authority on each point made; he must support arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
The California Rules of Court provide an appellant with a choice of several types of records upon which to take an appeal. The choices include a reporter's transcript, a clerk’s transcript, an agreed statement and a settled statement. (Cal. Rules of Court, rules 8.831, 8.832, 8.834, 8.836, and 8.837.) Plaintiff has elected to proceed with only a clerk’s transcript.
Because plaintiff has provided us with only the clerk’s transcript, we must treat this as an appeal “on the judgment roll.” (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; accord, Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) Therefore, we “‘must conclusively presume that the evidence is ample to sustain the [trial court’s] findings.’” (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error “appears on the face of the record.” (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.830(b).)
II. Plaintiff Has Shown No Error in the Granting of Nonsuit
In granting defendants’ motion for nonsuit, the court found plaintiff had failed to present any evidence that her arrest was made without probable cause. On appeal, she contends the court erred in assigning this burden to her.
Notwithstanding that plaintiff makes this appeal on the judgment roll, the court’s order shows it assigned to her the burden of production on the issue of probable cause. If that determination was error, it is error that “appears on the face of the record” and is therefore cognizable on appeal. (National Secretarial Service, Inc. v. Froehlich, supra, 210 Cal.App.3d at p. 521.)
Section 1983 “provides a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ by any person acting ‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.’ [Citation.] This statute, enacted to aid in “‘the preservation of human liberty and human rights,’” [citations], reflects a congressional judgment that a ‘damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees,’ [citation]. As remedial legislation, § 1983 is to be construed generously to further its primary purpose.” (Gomez v. Toledo (1980) 446 U.S. 635, 638-639 [64 L.Ed.2d 572, 576-577].)
Probable cause to arrest is a complete defense to a violation of civil rights claim under federal law. (Pierson v. Ray (1967) 386 U.S. 547, 555, 18 L.Ed. 2d 288; Gomez v. Toledo, supra, 446 U.S. at p. 639; Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th 934, 947; see also Jenkins v. City of New York (2d Cir. 2007) 478 F.3d 76, 84.) California courts look to federal law when deciding what conduct will support a federal civil rights claim. (Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1408.)
In deciding whether probable cause exists, courts must examine the “totality of the circumstances” at the time of the arrest. (Illinois v. Gates (1983) 462 U.S. 213, 233, [76 L.Ed.2d 527, 545].) “[P]robable cause is a fluid concept -- turning on the assessment of probabilities in particular factual contexts -- not readily, or even usefully, reduced to a neat set of legal rules.” (Id. at p. 232.) Moreover, a determination of the existence of probable cause turns on an objective analysis of information available to the arresting officer. (Cf. Whren v. United States (1996) 517 U.S. 806, 813 [135 L.Ed.2d 89] [“[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”].)
But the federal circuit courts of appeal disagree as to who bears the burden of proof to show probable cause in a section 1983 false arrest claim. (E.g., Davis v. Rodriguez (2d Cir. 2004) 364 F.3d 424, 434, fn. 8.) A majority -- the First, Fourth, Fifth, Sixth, Seventh, and Eleventh federal circuit courts -- place the burden on the plaintiff to prove lack of probable cause as an element of the plaintiff’s prima facie case, even when that allocation is in direct conflict with analogous state law, while the Third, Ninth and Tenth circuits place the burden of proof on the defendant, once the plaintiff has made a prima facie case by showing, for example, that the arrest was made without a warrant. (Comment, Proving Probable Cause: Allocating the Burden of Proof in False Arrest Claims under § 1983 (2006) 73 U.Chi.L.Rev. 347, 358-361.)
Here, plaintiff urged the trial court to follow the Ninth Circuit and find that plaintiff sustained her initial burden by showing only that her arrest was warrantless, after which the burden shifted to defendants to produce evidence of probable cause to arrest. (E.g., Gilker v. Baker (9th Cir. 1978) 576 F.2d 245, 246 [“[o]nce a warrantless arrest is established, the burden of going forward with the evidence passes to the defendant”]; Dubner v. City and County of San Francisco (9th Cir. 2001) 266 F.3d 959, 965.) The court apparently declined, instead following the majority of federal circuit courts which have held that plaintiff must prove lack of probable cause as an element of her prima facie case.
We have found no California state court decision expressly considering the issue.
But we need not resolve here whether the trial court erred in following the minority of federal circuit courts in assigning the burden of proof in section 1983 claims.
Even if the court erred in placing the burden on plaintiff to establish that no probable cause existed to arrest her, plaintiff cannot prevail because she has relied solely upon the clerk’s transcript in this judgment roll appeal. As we explained above, on a judgment roll appeal, we must presume the trial court had before it evidence sufficient to support its orders. (See Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.) Plaintiff has failed to meet her burden on appeal to demonstrate to the contrary.
In an apparent effort to overcome the standards applicable to judgment roll appeals, plaintiff asserts in her appellate brief that she “testified in conformity with her deposition which is contained” in the appellate record as a component of the clerk’s transcript. We interpret her statement as an admission she testified at trial -- consistent with her deposition transcript -- that, when she was arrested, she was riding in the open bed of her husband’s truck with her one-year-old son; as she rode in the truck bed holding her son, her husband was driving in such a “stopping going manner” manner, that she felt she and her son were “unsafe”; she cried for help when she spotted an officer from her vantage point in the truck; and, after he saw her riding in the back of the truck, the officer initiated a traffic stop and arrested both plaintiff and her husband and plaintiff was charged with felony child endangerment.
By her own testimony, plaintiff thus provided overwhelming evidence establishing that the officer, in fact, had probable cause to arrest her for child endangerment. Among other conduct, Penal Code section 273a punishes “[a]ny person who, . . . having the care or custody of any child, . . . permits that child to be placed in a situation where his or her person or health is endangered . . . .” The officer’s observations of plaintiff riding unsecured in the open bed of a truck, holding her child, provided probable cause for him to believe she was permitting the child “to be placed in a situation where his . . . person [was] endangered[.]
Under these circumstances, it is irrelevant to whom the court assigned the burden of introducing evidence of probable cause for plaintiff’s arrest. It would be anomalous for us to assume that, had the court required defendants to introduce such evidence, their evidence of probable cause would have been any more compelling that plaintiff’s own testimony that the arresting officer saw her riding in an unsafe condition with her son in the truck bed. There was no miscarriage of justice, and reversal is not warranted. (See Cal. Const., art. VI, § 13.)
Plaintiff also asks that we instruct the trial court “to apply the law of damages under [section 1983] in conformity” with the opinions in two Ninth Circuit cases (Smiddy v. Varney (9th Cir. 1981) 665 F.2d 261 and Arnold v. International Business Machines Corp. (9th Cir. 1981) 637 F.2d 1350), and that she “be allowed to present to the jury all of her damages including her four days in jail caused by her unlawful arrest.” With no guidance from plaintiff as to how she contends the trial court erred in this regard, and no citation to the record as to when she contends the court erred, we construe her argument as a claim the court erred in granting defendants’ motion in limine excluding evidence of damages arising from searches that may have occurred after her arrest as beyond the scope of her original government tort claim. Because we have concluded plaintiff has failed to show error in the grant of defendants’ motion for nonsuit, any contention the court erred in limiting evidence of damages is meritless.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: DAVIS, J., HULL, J.